Category Archives: Search and Seizure

Trump On Crime.

ACLU, Bellingham Defense Attorney, Constitutional Rights, Death Penalty, Due Process, Immigration, law enforcement, Legislation, marijuana, Police Misconduct, Race & Law, Search and Seizure, Skagit County Criminal Defense, Whatcom County Criminal Defense, , ,

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Like it or not, Donald Trump won.

Criminal defense attorneys serving their clients must survey the aftermath and ponder how Mr. Trump’s administration approaches issues of criminal justice. What is Trump’s stance on the “War on Drugs?” How does his stance embrace the growing legalization of marijuana among the States? How does Mr. Trump view the Fourth Amendment’s protections against unlawful searches and seizures? How does Trump view the discord between police and communities of color? Will Trump’s administration seek the immediate deportation of illegal immigrants who commit crimes? How does he feel about the death penalty? These issues – and many others – affect many defendants facing criminal charges.

If the best predictor of future behavior is past behavior, we look no further than Mr. Trump’s comments over the years; especially his comments during his campaign.

THE WAR ON DRUGS: 1990 & 2015

In 1990, Trump argued that the only way to win the War on Drugs was to legalize drugs and use the tax revenue to fund drug education programs. As he put it, “You have to take the profit away from these drug czars.” In his 2000 book,The America We Deserve, he stated that he’d never tried drugs “of any kind.”

Fast-forward 25 years, and now Trump is opposed to legalization. “I say it’s bad,” he told the crowd at the Conservative Political Action Conference in June, in response to a question about Colorado’s legal weed. “Medical marijuana is another thing, but I think recreational marijuana is bad. And I feel strongly about that.” Regarding states’ rights, Trump said, “If they vote for it, they vote for it. But they’ve got a lot of problems going on right now, in Colorado. Some big problems. But I think medical marijuana, 100 percent.”

Source: On the Issues: Donald Trump on Drugs.

Apparently, Trump opposes recreational marijuana and endorses medical marijuana. Unfortunately, his stances can become problematic for states like Washington, Colorado and a handful of others which have already passed initiatives allowing its citizens to possess small amounts of marijuana for recreational purposes. Will Trump’s administration reverse these State initiatives? Will Trump’s administration violate federal court opinions which have slowly de-prioritized federal prosecutions of marijuana cases in states which have legalized marijuana? How will drug prosecutions and/or convictions under Trump’s administration affect citizens receiving federal benefits to include welfare, social security and financial aid?

Only time will tell.

CRIME, THE 4TH AMENDMENT AND THE RACIAL DIVIDE BETWEEN POLICE AND COMMUNITIES OF COLOR.

Trump’s recent comments at the First Presidential Debate at Hofstra University, Sept. 26, 2016, moderated by Lester Holt of NBC News gives telling insights on these issues.

Q: What should be done about crime?

TRUMP: “Stop and frisk worked very well in New York. It brought the crime rate way down. You take the gun away from criminals that shouldn’t be having it. We have gangs roaming the street. And in many cases, they’re illegal immigrants. And they have guns. And they shoot people. And we have to be very vigilant. Right now, our police, in many cases, are afraid to do anything. We have to protect our inner cities, because African-American communities are being decimated by crime.”

Q: “Stop-and-frisk was ruled unconstitutional in New York, because it largely singled out black and Hispanic young men.”

TRUMP: “No, you’re wrong. Our new mayor refused to go forward with the case. They would have won on appeal. There are many places where it’s allowed.”

Q: “The argument is that it’s a form of racial profiling.”

TRUMP: “No, the argument is that we have to take the guns away from bad people that shouldn’t have them. You have to have stop-and-frisk.”

Some background information and “fact-checking” is necessary to understand this discussion.

Recently, in Floyd v. City of New York, U.S. District Court Judge Shira A. Scheindlin ruled that New York City police violated the U.S. Constitution in the way that it carried out its stop-and-frisk program, calling it “a form of racial profiling” of young black and Hispanic men. Apparently, there were 4.4 million stops made by New York City police between January 2004 and June 2012, and 83 percent of them were made of blacks and Hispanics — even though those racial groups represented 52 percent of the city’s population in 2010.

During trial, Judge Scheindlin found that 14 of the 19 stops constituted an unconstitutional stop or unconstitutional frisk. Ultimately, Judge Scheindin found the NYPD’s execution of its stop and frisk policy was unconstitutional.

My opinion?  Sure, most would agree we want guns and criminals off our streets. However, if stop and frisk policies involve systematically targeting certain racial groups, then these policies are simply unlawful. Period. Given his statements during the debates, I fear Trump’s administration may create, endorse and execute criminal justice policies which ultimately violate Fourth Amendment protections against unlawful searches and seizure.

2. How do you heal the racial divide?

TRUMP: “We need law and order. If we don’t have it, we’re not going to have a country. I just got today the endorsement of the Fraternal Order of Police. We have endorsements from almost every police group, a large percentage of them in the US. We have a situation where we have our inner cities, African- Americans, Hispanics are living in he’ll because it’s so dangerous. You walk down the street, you get shot.”

3. Do you see a crisis in the US of white police officers shooting unarmed blacks?

TRUMP: “It’s a massive crisis. It’s a double crisis. I look at these things, I see them on television. And some horrible mistakes are made. But at the same time, we have to give power back to the police because crime is rampant. I believe very strongly that we need police. Cities need strong police protection. But officers’ jobs are being taken away from them. And there’s no question about it, there is turmoil in our country on both sides.”

4. Do you understand why African Americans don’t trust the police right now?

TRUMP: “Well, I can certainly see it when I see what’s going on. But at the same time, we have to give power back to the police because we have to have law and order. And you’re always going to have mistakes made. And you’re always going to have bad apples. But you can’t let that stop the fact that police have to regain control of this tremendous crime wave that’s hitting the US.”

THE SUPREME COURT

According to Politico Magazine, Trump will probably pick ultra-conservative judges to fill anticipated vacancies in the United States Supreme Court. In an article titled, “How President Trump Could Reshape the Supreme Court – and the Country,” reporter Jeffrey Rosen surmises that Trump’s lasting legacy could be his power to shape the Supreme Court.

Apparently, during the third presidential debate, Trump described the 21 judicial candidates he has identified:

“They will be pro-life. They will have a conservative bent. They will be protecting the Second Amendment. They are great scholars in all cases, and they’re people of tremendous respect. They will interpret the Constitution the way the Founders wanted it interpreted, and I believe that’s very important.”

Apparently, Trump’s judicial picks are pro-law enforcement on issues involving government searches and seizures. This bodes negatively for preserving Fourth Amendment protections against search and seizure.

Also, Trump vows to give more power to police to handle the racial divide between police and communities of color. My opinion? That’s similar to dousing a forest fire with gasoline. or allowing a fox to guard your henhouse. Police aren’t experts at policing themselves. What is needed are the reinforcement of police accountability policies as well as a substantial shift with the culture of today’s police departments.

Let’s be frank: the unjustified killing of citizens at the hands of police can no longer go unpunished, especially in the face of indisputable video evidence. In those cases, police must be held accountable for the crimes they commit against the citizens they are sworn to serve and protect. It’s the only way to rebuild trust between police and the communities of color.

Equally important, we need policies which increase training on de-escalation techniques and decrease police militarization models which involves the use of military equipment and tactics by law enforcement officers. This includes decreasing the use of armored personnel carriers, assault rifles, submachine guns, flashbang grenades, grenade launchers, sniper rifles, and Special Weapons and Tactics (SWAT) teams if more reasonable alternatives are possible.

THE DEATH PENALTY

Put simply, Mr. Trump as a staunch advocate of the death penalty.

“A life is a life, and if you criminally take an innocent life you’d better be prepared to forfeit your own. My only complaint is that lethal injection is too comfortable a way to go.”

“I can’t believe that executing criminals doesn’t have a deterrent effect . . . Young male murderers, we are constantly told, are led astray by violent music and violent movies. Fair enough. I believe that people are affected by what they read, see, hear, and experience. Only a fool believes otherwise. So you can’t say on one hand that a kid is affected by music and movies and then turn around and say he is absolutely not affected when he turns on the evening news and sees that a criminal has gone to the chair for killing a child. Obviously, capital punishment isn’t going to deter everyone. But how can it not put the fear of death into many would-be killers?”

Source: The America We Deserve, by Donald Trump, pp. 102-104, July 2, 2000.

JAILING AND DEPORTATION OF UNDOCUMENTED IMMIGRANTS.

According to the Huffington Post, Trump vows to immediately deport or imprison up to 3 million undocumented immigrants.  Trump said he would launch what could be the largest mass deportation effort in modern history, vowing to immediately deport a number of people comparable to the record-setting figure that President Barack Obama carried out over two terms in office.

This should come as no surprise. According to a recent article from the Washington Post, Trump’s proposal calls for the deportation of undocumented immigrants who have committed violent crimes. Trump said he would push for two new laws aimed at punishing criminal aliens convicted of illegal reentry and removing “criminal immigrants and terrorists,” including previously deported unauthorized immigrants. He said he would name these laws after victims killed by people in the United States illegally.

Although Trump’s removal of undocumented immigrants at this pace is apparently limited to convicted felons, his enthusiasm for removals suggests that overall deportations will likely rise when he takes office, after declining sharply last year.

Clearly, Trump’s presidency shall affect our nation’s approach to crime and punishment. Consequently, it’s imperative to hire defense counsel who is competent handling drug charges, death penalty crimes, violent crime, racial injustice and immigration issues. Today’s defense counsel must stay abreast of today’s ever-changing political landscape.

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.

“Knock & Announce” Was Too Short.

Bellingham Defense Attorney, Constitutional Rights, Evidence, Exigent Circumstances, felony, Ineffective Assistance, Knock & Talk, law enforcement, marijuana, police, Search and Seizure, Search Warrant, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Ortiz, the WA Court of Appeals Division III held that police violated a defendant’s rights when they forced entry into his home after waiting only 6-9 seconds of their “knock and announce” during the early morning.

In late July 2011, Wapato Police Sergeant Robert Hubbard viewed the backyard of the defendant’s property from the vantage point of a cooperative neighbor. He saw two marijuana plants. Sergeant Hubbard was granted a search warrant for the property.

on August 11, 2011, at approximately 6:4 7 a.m., Sergeant Hubbard and 11 other police officers executed the search warrant at the property. He knocked on the door three times, announced “police search warrant,” waited one to two seconds, and repeated that process twice more. Hearing nothing inside the home, the officers breached the front door and entered the home.

Upon searching the property, the officers found 41 marijuana plants in various stages of growth and other evidence of a grow operation. Mr. Ortiz was eventually charged with one count of manufacture of a controlled substance, one count of involving a minor in an unlawful controlled substance transaction, and several other counts not relevant on appeal.

At the end of trial, the jury found Mr. Ortiz guilty.

On appeal, Mr. Ortiz argued he received ineffective assistance of counsel because his defense attorney failed to challenge the execution of the search warrant for failure to comply with the knock and announce rule.

EFFECTIVE ASSISTANCE OF COUNSEL.

The Court of Appeals began by explaining that effective assistance of counsel is guaranteed by both the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution. First, the defendant must show he received deficient representation. Second, the defendant must show he suffered prejudice as a result of the deficient performance.

“KNOCK & ANNOUNCE” RULE.

Next, the court explained the “knock and announce” rule. The Fourth Amendment to the United States Constitution requires that a non-consensual entry by the police be preceded by an announcement of identity and purpose on the part of the officers. This is part of the constitutional requirement that search warrants be reasonably executed.

In WA State, the parallel requirement of article I, section 7 of the Washington Constitution is codified in RCW 10.31.040. It states, “To make an arrest in criminal actions, the officer may break open any outer or inner door, or windows of a dwelling house or other building, or any other enclosure, if, after notice of his or her office and purpose, he or she be refused admittance.”

The Court explained that in order to comply with the “Knock & Announce” statute, the police must, prior to a non-consensual entry, announce their identity, demand admittance, announce the purpose of their demand, and be explicitly or implicitly denied admittance. The requirement of a demand for admittance and an explicit or implicit denial of admittance have been merged into a ‘waiting period,’ often linked to whether the police officers are refused admittance.

Strict compliance with the rule is required unless the State can demonstrate that one of the two exceptions to the rule applies: exigent circumstances or futility of compliance. Finally, the proper remedy for an unexcused violation is suppression of the evidence obtained by the violation.

Here, the only disputed issue was whether the police waited long enough before they broke down the door. The answer to this question depends upon the circumstances of the case.

The Court elaborated that the reasonableness of the waiting period is evaluated in light of the purposes of the rule, which are: ( 1) reduction of potential violence to both occupants and police arising from an unannounced entry, (2) prevention of unnecessary property damage, and (3) protection of an occupant’s right to privacy.

Here, the Court believed the waiting period of 6-9 seconds was unreasonable:

“In this case, due to the early hour of the search, the occupants were foreseeably asleep. Six to nine seconds was not a reasonable amount of time for them to respond to the police, and thus no denial of admittance can be inferred. Even Sergeant Hubbard admitted it would not be a surprise that sleeping occupants would be unable to respond in that amount of time. In addition, the purposes of the rule were not fulfilled due to the property damage done by battering in the door. The police did not comply with the rule.”

Although the State presented cases where the “knock and announce” rule was adhered to after police officers breached entry quickly after announcing, the Court nevertheless reasoned that in each of those cases the defendants were both present and awake. But here, the officers did not have any indication the home’s occupants were present or awake.

Because the police violated the knock and announce rule, and there is no legitimate strategic or tactical reason for failing to challenge the search, counsel was deficient for not moving to suppress the evidence. This deficiency, reasoned the court, prejudiced the defendant.

The Court concluded that Mr. Ortiz established that he was deprived of his constitutional right to effective assistance of counsel. The court reversed his convictions and remanded the case back to the trial court with directions to suppress the fruits of the illegal search.

My opinion? Excellent decision. Search and seizure issues like this are incredibly interesting. For more information on the case law surrounding these issues please review my Legal Guide titled, Search & Seizure: Basic Issues Regarding Their Search for Weapons, Drugs, Firearms and Other Contraband.

And 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.

Possessing Controlled Substances for Family Members.

"Plain Meaning" Rule, Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, felony, Jury Trial, Search and Seizure, Sixth Amendment, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Yokel, the WA Court of Appeals Division II decided that it’s a valid defense for defendants to possess a controlled substance pursuant to a household member’s valid prescription.

On February 15, 2015, a police officer discovered defendant Mary Yokel’s car parked in front of a motel room. Yokel had an active arrest warrant. Officer Croy knocked on the motel room door and made contact with Yokel. He then arrested Yokel on the warrant and searched her person incident to arrest. During the search, Officer Croy located one pill in Yokel’s pants pocket and verified it was Vicodin, containing hydrocodone. Yokel said she was holding the Vicodin pill for her daughter, who has a valid prescription. The State charged Yokel with two counts of possession of a controlled substance.

At trial, Yokel wanted to introduce evidence that she possessed the Vicodin pursuant to her 16-year-old daughter’s valid prescription. Yokel’s defense was that on the day in question, she had taken two of the pills out of the Vicodin bottle, gave one to her daughter, and put the other one in her pocket after determining that her daughter should not take two pills.

However, the trial judge denied Yokel’s motion to continue the case to allow her daughter to testify. Also, the court granted the Prosecutor’s motion in limine to exclude any evidence regarding Yokel’s daughter’s valid Vicodin prescription.

As a result, at trial, Yokel was not allowed to testify that she possessed the controlled substance for the purpose of administering it to her daughter. The jury found Yokel guilty of one count of possession of a controlled substance (hydrocodone). Yokel appealed.

  1. RCW 69.50.4013(1) PROVIDES THE DEFENSE THAT DEFENDANTS MAY HOLD PRESCRIPTION PILLS FOR FAMILY MEMBERS.

Ultimately, the Court of Appeals agreed with Yokel that RCW 69.50.4013(1) permits a defendant to possess a household member’s valid prescription for a controlled substance. It reasoned the statute provides an affirmative defense to a person who lawfully possesses a controlled substance obtained “directly from” or “pursuant to” a valid prescription. By including these different phrases in the statute, the legislature indicated its intent that each phrase have a different meaning.

Additionally, former RCW 69.50.308 (2013), one of the Uniform Controlled Substances Act’s statutes, allows practitioners to dispense controlled substances to an “ultimate user” pursuant to a prescription. The Act defines an “ultimate user” as an individual who lawfully possesses a controlled substance for the individual’s own use.

Consequently, reasoned the Court, this definition of “ultimate user” indicates the legislature’s intent to allow an ultimate user to possess a controlled substance for the use of another household member:

“Interpreting former RCW 69.50.4013(1) as prohibiting ultimate users from lawfully possessing a controlled substance prescribed to another household member leads to an absurd result. Reading the statute in such a way criminalizes behavior that may involve a common caretaking function. For example, a son who picks up his bedridden father’s prescription medication or a mother who administers a prescription medication to her infant daughter would be in violation of the statute.”

2. THE RIGHT TO PRESENT A DEFENSE.

The Court of Appeals said the trial court violated Yokel’s constitutional right to present a defense when it suppressed her from testifying why she held the pill for her daughter. The Court reasoned that the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution guarantee a criminal defendant the right to present a defense to the crimes charged.

Here, a defendant has the right to present admissible evidence in her defense and must show the evidence is at least minimally relevant to the fact at issue in her case.  Further, a defendant is entitled to a jury instruction supporting her theory of the case if there is substantial evidence in the record supporting it. “The trial court effectively barred Yokel from presenting a defense because it excluded all evidence regarding her daughter’s prescription and declined to give her proposed affirmative defense instruction,” reasoned the Court. “In light of our ruling above, the instruction and all evidence in support thereof should have been allowed at trial.”

The Court of Appeals concluded the trial court misinterpreted former RCW 69.50.4013(1) and, as a result, denied Yokel the right to present a defense. Therefore, it reversed Yokel’s conviction and remanded for a new trial.

My opinion? Excellent decision. The court rightfully went to arguments of statutory construction and interpreted the plain meaning of the statute to reach its decision. Well done.

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.

Deadly Force Not Justified.

42 U.S.C. § 1983, 9th Circuit Court of Appeals, Bellingham Defense Attorney, Constitutional Rights, Deadly Force, law enforcement, Police Misconduct, Qualified Immunity, Search and Seizure, Skagit County Criminal Defense, Whatcom County Criminal Defense, , ,

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In A.K.H. v. City of Tustin, the Ninth Circuit Court of Appeals held the government could not justify a police officer’s use of deadly force during the officer’s attempted investigatory stop of Mr. Herrera.

FACTS & PROCEDURAL HISTORY.

Defendant Osvaldo Villarreal, a police officer in Tustin, California, fatally shot Benny Herrera during an attempted investigatory stop. Herrera was on foot. Officer Villarreal was in his patrol car and had just driven up beside Herrera. Herrera was in the middle of the roadway, moving in the direction of traffic. His left hand was free and visible; his right hand was in his sweatshirt pocket. Villarreal commanded Herrera to take his hand out of his pocket. Less than a second later, just as Herrera’s hand came out of his pocket, Villarreal shot him twice, killing him. Herrera was unarmed. Villarreal does not claim that he saw, or thought he saw, a weapon in Herrera’s hand.

Relatives of Herrera (“Plaintiffs”) filed suit under 42 U.S.C. § 1983 against Officer Villarreal and the City of Tustin alleging that Villarreal used excessive force against Herrera in violation of the Fourth Amendment. Villarreal moved for summary judgment based on qualified immunity, which would have effectively dismissed the lawsuit against him. However, the federal district court denied the Officer’s motion.

Officer Villarreal brought an interlocutory appeal to the Ninth Circuit Court of Appeals. He argued that, even viewing the evidence in the light most favorable to the plaintiffs, his actions did not violate the Fourth Amendment and that the district court therefore erred in denying him qualified immunity.

THE ISSUES.

The Ninth Circuit reasoned it must ask two questions to determine whether Officer Villarreal is entitled to summary judgment based on qualified immunity. First, viewing the facts in the light most favorable to the plaintiffs, did Villarreal use excessive force in violation of the Fourth Amendment? Second, if Villarreal used excessive force, did he violate a clearly established right?

THE COURT’S ANALYSIS.

Quoting Tennessee v. Garner, the Ninth Circuit reasoned that Deadly Force is permissible only if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm.

Here, the Ninth Circuit found Officer Herrera used excessive force in violation of Mr. Herrera’s Fourth Amendment rights. The Court reasoned that (1) the crime at issue was a domestic dispute that had ended before the police became involved; (2) the deceased did not pose an immediate threat to the safety of the officers or others, as the officer did not believe the deceased was armed and the officer did not see a weapon; (3) although the deceased did not comply with the officer’s commands to remove his hand from his sweatshirt pocket, he did not attempt to flee; and (4) the officer escalated to deadly force approximately 1 second after issuing the command to the deceased to remove his hand from his pocket. “Viewing the evidence in the light most favorable to the plaintiffs, we conclude that Villarreal violated clearly established Fourth Amendment law when he shot and killed Herrera.”

CONCLUSION.

In its conclusion, the Ninth Circuit said the following:

“It has long been clear that a police officer may not seize an unarmed, non-dangerous suspect by shooting him dead. Viewing the evidence in the light most favorable to the plaintiffs, that is precisely what Officer Villarreal did here.”

My opinion? Great decision. Straightforward, direct, constitutionally sound and accurate. I’m happy the Ninth Circuit saw this case for what it was.

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.

“Stop & Frisk” of Friends

Bellingham Defense Attorney, Constitutional Rights, felony, Firearm, law enforcement, Search and Seizure, Skagit County Criminal Defense, Terry Stop, Washington Court of Appeals, Washington Supreme Court, Whatcom County Criminal Defense, , ,

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In State v. Flores, the WA Supreme Court  decided that police officers may seize a defendant’s companions if officers can articulate a reason based specifically on safety concerns for the officers, the arrestee, his or her companions, or other citizens.
 On November 2, 2013, an anonymous source reported to the Moses Lake Police Department that Giovanni Powell pointed a gun at someone’s head. Officer Kyle McCain was first to arrive at the scene of the incident. Officer McCain was familiar with Powell, and was soon updated that Powell had an arrest warrant.
 Officer McCain arrived at the reported address. He observed Powell, whom he recognized, and another person (later identified as Flores) walking down the street together. McCain did not recognize Flores and did not have any reason to suspect Flores of criminal activity.
 McCain parked across the street from Powell and Flores, got out of his car, drew his side arm, held it pointed at the ground, and ordered Powell to stop. As this was occurring, other officers arrived. Mr. Flores told officer he possessed a firearm in his pants. It was removed and secured. The State charged Flores with Unlawful Possession of a Firearm in the First Degree.
 Flores brought a CrR 3.6 motion to suppress all evidence of the gun. The judge granted the motion, which ultimately resulted in dismissal of the charges. The State appealed, and Division Three of the Court of Appeals affirmed the dismissal. The State appealed again to the WA Supreme Court.
 The court addressed the issue of whether it violates article I, section 7 of the Washington State Constitution for an officer to seize the nonarrested companion of an arrestee to secure the scene of an arrest.
 The court reasoned that an individual is seized when, under the circumstances, an individual’s freedom of movement is restrained and the individual would not believe he is free to leave or decline a request due to an officer’s use of force or display of authority. State v. Rankin. This determination is made by objectively looking at the actions of the law enforcement officer.
 The court reasoned that an officer does not meet the standard required for a Terry stop in cases like this: “Terry must be met if the purpose of the officer’s interaction with the passenger is investigatory. For purposes of controlling the scene of the traffic stop and to preserve safety there, we apply the standard of an objective rationale.”
 Consequently, the Court gave factors from the WA Court of Appeals Div. III  decision State v. Mendes for determining what “an objective rationale” means when it comes to seizing a defendant’s companions. These Mendes factors include (but are not limited to) the arrest, the number of officers, the number of people present at the scene of the arrest, the time of day, the behavior of those present at the scene, the location of the arrest, the presence or suspected presence of a weapon, the officer’s knowledge of the arrestee or the companions and potentially affected citizens.
 “This is not an exhaustive list, and no one factor by itself justifies an officer’s seizure of non-arrested companions,” said the Court. “When determining whether there is an objective rationale, the court should look at all the circumstances present at the scene of the arrest.”
 Applying this “Objective Rationale Test,” the Court found that Officer McCain justifiably seized Mr. Flores to secure the scene of Powell ‘s arrest, and that the Officer’s actions were justified. The WA Supreme Court reversed the Court of Appeals, found the seizure was lawful and ruled the evidence of the gun should not have been suppressed.
 Justice McCloud dissented under arguments that officers must comply with Terry at the scene of an arrest, and that the new “Objective Rationale Test” adopted by the Court effectively circumvented time-tested case law:
“This holding creates a new exception to the Fourth Amendment’s warrant requirement, and we don’t have the power to create it–only the (United States) Supreme Court does. It’s also a new exception to our court’s consistent statements, for decades, that article I, section 7 provides more protection for individual privacy rights than the Fourth Amendment.”
 My opinion? The officers would have eventually found Mr. Flores’s firearm anyway if they followed protocol under a Terry stop. But they didn’t. Therefore, and similar to Justice McCloud, I’m concerned whether the “Objective Rationale Test” was wrongfully created to become another exception to the Fourth Amendment’s warrant requirement.

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.

Kansas Cops Can’t Stop Colorado Drivers Just Because they Suspect Marijuana Possession.

42 U.S.C. § 1983, Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, law enforcement, Legislation, marijuana, Police Misconduct, Qualified Immunity, Race & Law, Search and Seizure, Skagit County Criminal Defense, Whatcom County Criminal Defense, , ,

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In Vasquez v. Lewis & Jimerson, the 10th Circuit Court of Appeals reinstated a lawsuit filed by a Colorado motorist against two Kansas Highway Patrol officers who pulled him over and searched his vehicle for marijuana as he was driving alone at night through Kansas on his way to Maryland.

The KHP officers, Richard Jimerson and Dax Lewis, stopped Vasquez when they could not read the temporary tag taped to the inside of the car’s tinted rear window. The officers believed they were justified in searching the vehicle because Vasquez was a citizen of Colorado driving on I-70, a “known drug corridor,” in a recently purchased, older-model car. They said he also seemed nervous.

On February 28, 2012, Vasquez filed this lawsuit against the Officers under 42 U.S.C. § 1983 – which allows citizens to sue the government for violating Constitutional Rights – and argued that the officers violated his Fourth Amendment rights by detaining him and searching his car without reasonable suspicion. At first, his lawsuit was dismissed. He took his lawsuit up on appeal.

The 10th Circuit found the officers violated Vasquez’s Fourth Amendment rights in searching his car without his consent. Nothing illegal was found. He had nothing more than an out-of-state license plate from Colorado, a state that has legalized marijuana. The Court found the officers violated Vasquez’s rights in searching his car:

“Accordingly, it is time to abandon the pretense that state citizenship is a permissible basis upon which to justify the detention and search of out-of-state motorists, and time to stop the practice of detention of motorists for nothing more than an out-of-state license plate,” the ruling states.”

My opinion? Good decision. And it makes sense.  Twenty-five states permit marijuana use for medicinal purposes, with Colorado, Alaska, Oregon, Washington, and Washington, D.C. permitting some recreational use under state law.  Our federal circuit courts are simply reading the writing on the wall.

Indeed, it even appears our federal courts are actually leading the charge toward the national legalization of marijuana. In my blog post titled, 9th Circuit Court of Appeals Bans Pot Prosecutions, I discuss recent news that the 9th Circuit prevented the U.S. Department of Justice from prosecuting pot charges if State laws allow for its legal possession.

Times are changing . . .

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.

Abandoned Cell Phone Searches

Abandonment Doctrine, Bellingham Defense Attorney, Cell Phone, Constitutional Rights, felony, law enforcement, Plain View, police, Possession of Stolen Motor Vehicle, Privacy, Search and Seizure, Search Warrant, Skagit County Criminal Defense, Technology, Washington Supreme Court, Whatcom County Criminal Defense, , ,

In State v. Samalia, the WA Supreme Court held that although cell phone information is protected by the Constitution, the defendant abandoned this privacy interest when he voluntarily left the cell phone in a stolen vehicle while fleeing from police.

Defendant Adrian Sutlej Samalia fled on foot from a stolen vehicle during a lawful traffic stop, leaving his cell phone behind in the vehicle. After Samalia successfully escaped, the police searched the cell phone without a warrant and made contact with one of the numbers stored in the cell phone. That contact led to Samalia’s identification as the owner of the phone and driver of the stolen vehicle.

On these facts, the State charged Samalia with Possession of a Stolen Vehicle. Samalia moved to suppress the cell phone evidence under CrR 3.6, arguing that the officers violated his constitutional rights when they seized and searched his cell phone with neither a warrant nor a valid exception to the warrant requirement.

The State responded that the warrantless search was valid under the abandonment doctrine. The trial court held that Samalia voluntarily abandoned any privacy interest that he had in the cell phone by leaving it in the stolen vehicle, which he also voluntarily abandoned, while fleeing from Office Yates. After denying Samalia’s suppression motion and subsequent motion for reconsideration, the trial court found Samalia guilty as charged in a bench trial.  Samalia appealed to Division III of the WA Court of Appeals. They upheld the trial court’s decision under the abandonment doctrine.

Ultimately, the WA Supreme Court decided the search was lawful and upheld Samalia’s conviction. It reasoned that article I, section 7 of Washington’s Constitution states that “no person shall be disturbed in his private affairs … without authority of law,” and although the WA Constitution embraces the privacy expectations protected by the Fourth Amendment to the United States Constitution – and in some cases, may provide greater protection than the Fourth Amendment – the search was nonetheless lawful under the abandonment doctrine.

ABANDONMENT DOCTRINE

The Court reasoned that the “abandonment doctrine,” a person loses normal privacy interests in their property upon abandoning it. The abandonment doctrine is not rooted in any obligation by law enforcement to find the owner of property. Basically, it allows law enforcement officers to retrieve and search voluntarily abandoned property without implicating an individual’s rights. The court reasoned that in this sense, voluntarily abandoned property is different from lost or mislaid property, in which the owner maintains a privacy interest in the property and the finder may have an obligation to seek out the owner to return the property.

Thus, when an individual flees from law enforcement and leaves a cell phone behind in a stolen vehicle, a trial court may find that the cell phone is no less abandoned than any other item that was also left in the stolen vehicle.

Here, the Court declined to find an exception to the abandonment doctrine for cell phones. Consequently, the WA Supreme Court decided the trial court properly found abandonment under these facts.

In conclusion, the WA Supreme Court affirmed Samalia’s conviction on the grounds that the information derived from the search of Samalia’s cell phone was properly admitted as evidence under the abandonment doctrine.

DISSENTING OPINION

Justice Yu authored the dissenting opinion, which was also signed by Justice Stephens and Justice Sheryl Gordon McCloud. In short, these dissenting justices all agreed that common law doctrines like the Abandonment Doctrine cannot be applied mechanically to new technology. Second, the abandonment doctrine applies to personal property generally and not digital technology. Third, digital cell phone data remains a private affair, even if the cell phone itself has been voluntarily abandoned.

“The people of Washington are entitled to hold safe from government intrusion the unprecedented wealth of personal information accessible through a cell phone, even if the phone itself has been voluntarily abandoned. If government officials discover a cell phone and want to search its digital data for evidence of criminal activity, they may seize and secure the cell phone to preserve any evidence it may contain, but they must obtain a warrant before searching its digital data. Because the police did not obtain a warrant here, the search was unlawful and its fruits should have been suppressed. I respectfully dissent.”

My opinion?

Last year, I discussed this case when the Court of Appeals decided it in my blog post titled, State v. Samalia: Search of Abandoned Cell Phone is Lawful. Again, I disagree with the court’s majority decision in this case. The trial court should have suppressed the cell phone search back in the beginning of this case. Under these circumstances, the abandonment doctrine is simply not the proper legal vehicle to permit a cell phone search. Using this doctrine leaps too far in the wrong direction. Kudos to the dissenting judges in this case. Although the decision was not deeply divided (6-3), the dissenters got it right. Officers need to get search warrants. Period.

My general advice to the general public?

Never leave incriminating evidence on your cell phone. No pictures, videos, nothing. A lost phone could now be considered “abandoned” and searchable by authorities.

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.

Backpack Searches When Jailed

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In State v. Dunham, the WA Court of Appeals Division II decided that a warrantless search of a suspect’s locked backpack pocket was a lawful inventory search where the defendant was booked into jail, a search of his person produced knives, the backpack was to be logged into the jail’s temporary storage area and the officer felt knives on the outside of the backpack.

On January 29, 2014, Sergeant Gwen Carrell of the Chehalis Police Department responded to a reported shoplifting at a local department store. Upon arrival, Sgt. Carrell met with loss prevention officers. They told Sgt. Carrell that defendant Jason Dunham had multiple knives in his backpack and that they had removed the backpack from Dunham’s reach. Sgt. Carrell placed Dunham in handcuffs for officer safety and searched him for weapons. She located two more knives on Dunham’s person, arrested Dunham for theft and booked him into jail.

Sgt. Carrell searched Dunham’s backpack for items to be logged into the jail’s temporary storage. This is called an inventory search. In short, it is every police department’s policy to inventory items to be held in its storage facility for any dangerous items. As part of this policy, knives are to be kept in secure containers, preventing them from puncturing anything.

Sgt. Carrell used Dunham’s keys to unlock the backpack pocket. She opened the pocket and observed a flashlight, a butane torch, and a glass pipe. What Sgt. Carrell thought was a knife was actually the butane torch. The residue in the glass pipe tested positive for methamphetamine. The State charged Dunham with Possession of a Controlled Substance and Theft in the Third Degree.

Dunham filed a motion to suppress the evidence found during Sgt. Carrell’s search of the locked portion of his backpack pursuant to CrR 3.6, arguing that the search violated his constitutional rights. The trial court denied the motion and ruled that the inventory search was valid. Later, the trial court found him guilty on both counts at a bench trial.

Dunham appealed. He argued that the warrantless search of his backpack’s locked pocket violated the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution. He claims that the search was not a valid inventory search.

Unfortunately for Dunham the Court of Appeals disagreed. First it reasoned that  inventory searches are an exception to the requirement that police have a warrant to search people’s personal property. Second, the Court described the purpose of an Inventory Search:

“The purpose of an inventory search is not to discover evidence of a crime, but to perform an administrative or caretaking function. The principal purposes of an inventory search are to (1) protect the owner’s property, (2) protect the police against false claims of theft by the owner, and (3) protect the police from potential danger. The scope of an inventory search should be limited to those areas necessary to fulfill its purpose.”

Third, the Court reasoned that Officer Carrel’s safety concern about potentially exposed knives in the locked pocket was reasonable based on the facts that (1) several knives were found on Dunham’s person, (2) additional knives were found in the unlocked portion of Dunham’s backpack, (3) one of the knives found in the backpack was unsheathed, and (4) Sgt. Carrell felt what she believed to be another knife in the locked pocket of the backpack. Therefore, a manifest necessity existed for searching the locked portion of the backpack.

Finally, the Court concluded that the inventory search was valid and affirmed Dunham’s conviction:

“Substantial evidence supports the challenged finding of fact. Given the reasonable indication that the locked portion of the backpack contained dangerous items along with Sgt. Carrell’s reasonable fear of being stabbed, we hold that a manifest necessity existed to search No. 46169-2-II 8 inside the locked portion of the backpack. Therefore the trial court’s findings of fact support its conclusion that the inventory search was valid. We affirm Dunham’s conviction.”

My opinion? Search and seizure issues are a HUGE aspect of unlawful possession cases. The legal issues come down to whether the search was lawful, and if not, whether the evidence can be suppressed. Here, the court’s decision appears sound. Under Washington law, officers may search a suspect’s person if they feel “hard and sharp” objects through the outside of a suspect’s clothing. This is done for officer safety. Similarly, Inventory Searches are conducted under the same policy of preserving officer safety. Here, the hard and sharp objects felt through Dunham’s backpack raised a safety concern. Therefore, the search appears lawful.

For more information, please review my Legal Guide titled, “Search & Seizure: Basic Issues Regarding Their Search for Weapons, Drugs, Firearms and Other Contraband.” There, I provide links to my analysis of Washington cases discussing searches of persons, vehicles, cars and homes. Also, please go the search engine of my Blog if you have specific queries about these issues.

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.

Utah v. Strieff: High Court Upholds Unlawful Search

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In Utah v. Strieff, the U.S. Supreme Court held in a 5-3 vote that an illegal police stop and resulting drug arrest did not ultimately violate the Fourth Amendment because the officer later discovered the defendant had an outstanding traffic warrant.

The case began when a police officer stopped Edward Strieff on the street and ran his identification. The state of Utah concedes that this was an illegal police stop. However, when the Officer ran Strieff’s identification, it was discovered that Strieff had an outstanding traffic warrant. The officer then arrested him, searched him, and discovered drugs in his pockets. Strieff argued that the drugs should have been inadmissible under the Fourth Amendment because they are the fruits of an illegal search.

In an opinion authored by Justice Clarence Thomas, the U.S. Supreme Court disagreed with Mr. Strieff, ruled for the State, and found there was no flagrant police misconduct:

“The evidence Officer Fackrell seized as part of his search incident to arrest is admissible because his discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized from Strieff incident to arrest.”

Furthermore, the Court also noted that although the Exclusionary Rule prohibits the admissibility of evidence which is illegally seized in violation of people’s Constitutional rights, there are several exceptions to the rule. One exception is the Attenuation Doctrine, which admits typically inadmissible evidence when the connection between unconstitutional police conduct and the evidence is sufficiently remote or has been interrupted by some intervening circumstance.

The Court reasoned that the Attenuation Doctrine therefore applies here, where the intervening circumstance is the discovery of a valid, pre-existing, and untainted arrest warrant: “Assuming, without deciding, that Officer Fackrell lacked reasonable suspicion to stop Strieff initially, the discovery of that arrest warrant attenuated the connection between the unlawful stop and the evidence seized from Strieff incident to his arrest.” Justice Thomas’s majority opinion was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Stephen Breyer, and Samuel Alito.

Writing in dissent, Justice Sonia Sotomayor blasted the majority for excusing police misconduct and undermining the Fourth Amendment:

“The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic war rants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant. Because the Fourth Amendment should prohibit, not permit, such misconduct, I dissent.”

“This case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.”

My opinion? I agree with Sotomayor’s dissent. Utah v. Strieff is a terrible blow to every American’s Fourth Amendment rights to be free from unlawful and intrusive government searches. Period.

That aside, will Utah v. Strieff negatively impact the constitutional rights of citizens in Washington State? Probably not. We already have time-tested precedents like State v. Doughty, State v. Afana and State v. Winterstein. All of these WA Supreme Court cases – and more – are recent opinions that are factually similar to Utah v. Streiff. Fortunately, these cases have already ruled against police officers violating people’s Constitutional rights against illegal search and seizure.

As a colleague of mine said, “The rest of the country may be SOL, but Utah v. Strieff should not survive here in WA State.”

Let’s keep our fingers crossed.

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.

Refusing Field Sobriety Test is Admissible as “Consciousness of Guilt.”

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In State v. Mecham, the WA Supreme Court decided that Prosecutors in DUI trials may admit evidence that a defendant is declining field sobriety tests as evidence of consciousness of guilt.

FACTS

In 2011, Officer Campbell made a traffic stop of defendant Mark Tracy Mecham. Although Mecham’s driving showed no signs of intoxication, Mecham smelled of intoxicants and had slurred speech. The officer asked Mecham to perform voluntary field sobriety tests (FSTs), which would have involved Officer Campbell’s observing Mecham’s eye movements and ability to walk a straight line and stand on one leg. Mecham refused.

At trial, Mecham moved to suppress his refusal to perform the FSTs. Typically, trial courts grant this defense motion. In Mecham’s case, however, the trial court denied his motion and ruled that even if FSTs were a search, probable cause supported the search. Mecham’s refusal was admitted to the jury as evidence to support the Prosecutor’s theory that Mecham exhibited “Consciousness of Guilt.” The jury found Mecham guilty of DUI.

Eventually, Mecham’s case was appealed to the WA Supreme Court. He argued that his right to be free from unreasonable searches was violated when the trial court admitted evidence of his refusal to undergo FSTs.

THE DECISION

Unfortunately for Mecham, the WA Supreme Court disagreed and upheld his DUI conviction. In a deeply divided decision, the Court held that while a FST is a seizure, it is not a search either under article I, section 7 of the Washington Constitution or under the Fourth Amendment to the United States Constitution. The State may, therefore, offer evidence of a defendant’s refusal to perform FSTs. Field sobriety tests may only be administered when the initial traffic stop was supported by reasonable suspicion and the officer has reasonable suspicion that the defendant was driving under the influence.

The lead majority opinion was authored by Justice Wiggins. Justice Fairhurst concurred in part and dissented in part. Justice Fairhurst would prohibit the administration of FSTs once the defendant is already under formal arrest for an offense other then DUI. Justice Johnson dissented on the grounds that the defendant had been told by the officer who administered the FSTs that they were voluntary. Finally, Justice Gordon McCloud dissented on the grounds that FSTs are searches.

My opinion?

I agree with Justice McCloud’s dissent. Here’s a portion:

“An FST can reveal information about a person’s body and medical history that are unquestionably private in nature. According to the National Highway Traffic Safety Administration (NHTSA), in addition to possible inebriation, FSTs can reveal a head injury, neurological disorder, brain tumors or damage, and some inner ear diseases. These conditions are not necessarily observable in the subject’s normal public behavior; they may well be revealed only by the special maneuvers the subject is directed to perform during the FST. Indeed, if an FST did not reveal information beyond what is readily observable by the general public, there would be no need to administer it in the first place. I therefore conclude that FSTs are searches under article I, section 7 of our state constitution.”

FSTs are a search. Period. Clearly, Officers who ask citizens to performs FSTs are seeking evidence of DUI. Because FSTs are a search, Mecham had a constitutional right to refuse to perform them unless (1) the officers had a warrant, or (2) an exception to the warrant requirement applied. Here, the Officer neither possessed or obtained a warrant for a blood test. Nor did the Officer even attempt to get a warrant.

Even more concerning, Prosecutors now have free reign to spin a citizen’s refusal of FSTs as “consciousness of guilt.” That’s unfair. Indeed, there’s a lot of debate in criminal law on whether FSTs accurately and/or scientifically indicate whether someone is DUI. These tests are, quite simply, balancing and memory tests administered under extremely uncomfortable and stressful conditions. These tests – which more of less reflect bad balance, lack of memory and preexisting health issues – simply do not accurately depict intoxication.

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.