Category Archives: Search and Seizure

“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

Attenuation Doctrine, Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Evidence, Exclusionary Rule, felony, law enforcement, police, Privacy, Search and Seizure, Skagit County Criminal Defense, Terry Stop, United States Supreme Court, Washington Supreme Court, Whatcom County Criminal Defense, , ,

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.”

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Drug Recognition Expert, Due Process, DUI, Evidence, Jury Trial, National Highway Traffic Safety Administration, police, Privacy, Search and Seizure, Search Warrant, Skagit County Criminal Defense, Terry Stop, Washington Supreme Court, Whatcom County Criminal Defense, , ,

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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.

Unlawful Arrest for Failure to Pay Court Fines.

Bellingham Defense Attorney, Bench Warrant, Constitutional Rights, Court Fines, Drug Offenses, Due Process, felony, Legal Financial Obligations, Methamphetamine, Search and Seizure, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

In State v. Sleater, the WA Court of Appeals Div. III held an arrest warrant may not issue for a defendant who fails to schedule an appearance in court to explain why she had failed to pay her court fines.

The Defendant Ms. Sleater had prior convictions for various Drug Offenses. As of April 2014, she was making a combined monthly payment of$75 toward three cases. She was also entered into Benton County’s “pay or appear” program. It required her to make her legal financial obligation (LFO) payments every month or appear to schedule a hearing to explain why she could not make the payments. The program agreement also stated that if the defendant did not make a payment and failed to schedule a hearing, “a warrant will be issued for the Defendant’s arrest.”

For months, Ms. Sleater’s mother paid the monthly fines. Her mother made a $150 on-line payment on April 17, 2014. Unfortunately, the computer did not apportion the sum among the three accounts, but applied all of the money to only one case number identified with the payment. AS a result, The other two counts were four and seven months behind.

On April 22, 2014 the clerk’s office obtained arrest warrants for Ms. Sleater since she had not made payments on those two cases and had not scheduled a hearing to explain the lack of payments.

On May 16, 2014 officers arrested Ms. Sleater on the two warrants. She possessed methamphetamine at the time of her arrest. Consequently, the prosecutor filed one count of possession of a controlled substance. Her attorney moved to suppress the evidence under CrR 3.6 on the claim that the warrants were wrongly issued. However, the trial court denied the motion and found Ms. Sleater guilty at trial.  She appealed.

The WA Court of Appeals held that the arrest warrants were invalidly issued in violation of the Fourth Amendment to the United States Constitution.

The Court reasoned that the Fourth Amendment protects against unreasonable seizures, and that seizure is reasonable if it serves a governmental interest which is adequate to justify imposing on the liberty of the individual.” However, it violates due process to punish defendants for failing to pay fines if the defendant cannot pay simply because they are impoverished.

“Nor can a state impose a fine and convert it to jail time solely because a defendant has no ability to pay the fine. The State must afford the defendant a hearing before jailing him for failing to pay his obligations. While the court can put the burden to prove inability to pay on the defendant, it still has a duty to inquire into a defendant’s ability to pay fines prior to jailing him.”

Here, the Court reasoned that the effect of the arrest warrants was to require Ms. Sleater to go to jail for failing to pay her LFOs without first conducting an inquiry into her ability to pay them:

“The facts of this case demonstrate the need for such an inquiry. Ms. Sleater’s mother did make a payment toward her daughter’s LFOs, but through some type of error the payment was not reflected in all three files. A hearing before the warrants issued would have allowed the court to resolve the problem without the necessity of an arrest.”

Here, reasoned the Court, a warrant should not have issued for defendant’s failure to pay without first determining the willfulness of that violation. Accordingly, the Court of Appeals reversed Ms Sleater’s conviction for possessing methamphetamine.

Good decision.

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.

AAA Questions Marijuana DUI Laws

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According to a news article from the Chicago Tribune, recent studies conducted by car insurer AAA find that blood tests given to drivers suspected of Marijuana DUI have no scientific basis.

A handful of studies released by the AAA Foundation for Traffic Safety found that drivers can have a low level of THC, the active ingredient in marijuana, in their blood and be unsafe behind the wheel, while others with relatively high levels may not be a hazard. Below are the individual studies accompanied by capsule summaries comprising the effort:

“If you’ve had marijuana whether it’s medicinal or otherwise, don’t drive,” said AAA Chicago spokeswoman Beth Mosher, “It’s really that simple.”

The studies examined the results of more than 5,300 people nationwide who were arrested for driving under the influence of marijuana, 600 of whom tested positive for THC only, while the others had THC and other substances. This is because marijuana isn’t metabolized by the body in the same way as alcohol. The researchers compared the Drug Recognition Expert (DRE) exam results of 602 drivers that only had THC present in their blood at the time of arrest to those of 349 volunteers that took the test drug-free and sober. Ultimately, the degree to which a driver is impaired by marijuana use depends a lot on the individual, the foundation said.

The data appears confusing because AAA also looked at Washington – one of the first states to legalize marijuana – and found fatal crashes involving drivers who recently used marijuana doubled.

“ In most recent data 1 in 6 drivers who are involved in a fatal crash there had marijuana in there system,” Mosher  said.  “And as more and more states look at legalizing marijuana we see this as a concerning trend.”

Nevertheless, AAA is sending the message that the legal limits established for marijuana are arbitrary. A handful of states have moved to specify the maximum amount of active THC — the main chemical in marijuana — that drivers can have in their system. But AAA says that doesn’t work.

“We think those are meaningless,” said Mosher. “They are not backed by any science. One person can have one limit of THC in their blood and be significantly impaired and others can have that same limit and not be impaired at all,” Mosher said.

Many in law enforcement and AAA say that officer recognition of impaired drivers is really the only what to determine whether someone is too high to drive.  Of course all of this a public safety concerns as pot becomes legal across the country.

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.

State v. Budd: WA Supreme Court Acknowledges Unlawful Search of Home.

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In State v. Budd, the WA Supreme Court decided law enforcement officers must properly give Ferrier warnings before entering a residence.

Good decision. Last year, I discussed how the WA Court of Appeals decided this matter in my blog titled, State v. Budd: Ferrier Warnings Improperly Given. Fortunately, the WA Supreme Court upheld the Court of Appeals’ decision.

Police arrived at his door on a “cybertip” that Mr. Budd was talking to underage girls through online chatting and that he possessed child pornography on his computer. Officers arrived at Budd’s home and performed a “knock & talk“, however, they lacked probable cause for a search warrant.  Also,  the detectives did not properly discuss Ferrier warnings with Mr. Holmes before he allowed them entry. They seized his computer, found child porn and charged him with Possession of Depictions of Minors Engaged in Sexually Explicit Conduct under RCW 9.68A.070. He was convicted.

Some background on Ferrier warnings is necessary in order to understand this “search & seizure of a home” case. In State v. Ferrier, the WA Supreme Court held that, before entering a citizen’s home without a warrant, a law enforcement officer must (1) ask the citizen for consent, (2) inform the citizen that he can revoke consent at any time and (3) notify the citizen that he can limit the scope of the entry into the home. If an officer fails to provide these Ferrier rights/warnings, then any evidence obtained from the search is “fruits of the poisonous search” and can be suppressed.

On appeal, Budd argued that the trial court wrongfully denied his motion to suppress evidence because the Ferrier warnings given by police were insufficient. The Court of Appeals agreed with Mr. Budd and suppressed the evidence. In response, the State took the issue up on appeal to the WA Supreme Court. In this new opinion, however, the WA Supremes ultimately decided the Court of Appeals correctly ruled that Budd’s consent was invalid.

The WA Supreme Court reasoned that since Ferrier, the Court has consistently limited the Ferrier warnings to knock and talk procedures. “In this case, the officers conducted a knock and talk because they sought Budd’s consent to enter his home to search for and seize suspected contraband. Therefore, the officers were required to give Budd the Ferrier warnings before entering his home.”

Furthermore, the Court discussed the similarities between Mr. Budd’s case at hand and the defendant in Ferrier:

“Indeed, the officers’ conduct in this case paralleled the conduct of the officers in Ferrier. In both cases, the officers arrived without announcement, surprising the resident. In both cases, the resident was not given time to reflect on the officers’ presence before being asked to give his or her consent for the officers to enter the home and search for evidence of a crime. In both cases, the resident reacted to the knock and talk procedure as expected by being polite and cooperative, and allowing the officers inside the residence.”

Finally, the WA Supreme Court affirmed the trial court’s finding that the officers did not give Budd the Ferrier warnings before entering his home and hold that Budd’s consent was therefore involuntary. And with that ,the WA Supreme Court affirmed the Court of Appeals and dismissed the charges against Mr. Budd.

Again, good decision. Although Mr. Budd’s actions leading up to his charges were certainly concerning, the WA Supremes got it right in deciding that our individual rights trump unlawful government searches of our homes. I’m glad they didn’t decide differently and chip away at the Ferrier decision. In Ferrier, the WA Supreme Court specifically highlighted the fact that when confronted with a surprise show of government force and authority, most residents believe they have no choice but to consent to the search. This is absolutely true. The Ferrier court also noted that it was not surprised by an officer’s testimony that virtually everyone confronted by a knock and talk accedes to the request to permit a search of their home.

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

State v. Deleon: Court Strikes Evidence of “Gang Affiliation” Due To Defendant’s Music Preferences

Assault, Bellingham Defense Attorney, Constitutional Rights, Duress Defense, Evidence, felony, Prison, Race & Law, Search and Seizure, Self-Incrimination, Sentencing, Washington Supreme Court, Whatcom County Criminal Defense, , ,

Image result for los tigros del notre

In State v. Deleon, the  WA Supreme Court held that (1) a defendant’s musical preference does not establish gang membership, and their admittance to gang affiliation during jail  booking may not be used at trial.

The State prosecuted Mr. Deleon and two others for multiple counts of Assault in the First Degree with deadly weapon enhancements and with gang aggravators.  If convicted, these upward enhancements substantially increased Deleon’s prison sentence. At trial, the court admitted as evidence of gang affiliation statements the defendant made at booking about his gang affiliation and evidence of the type of music on his cell phone.  Also, the trial court allowed a police officer to testify as a gang expert regarding generalized information of gang affiliation.

Mr. Deleon was found guilty and sentenced to 1,002 months. He appealed on the issue of (1) whether the trial court violated his Fifth Amendment right against self incrimination improperly admitted the aforementioned evidence, and (2) whether the gang expert testimony regarding gang culture and behavior was irrelevant and thus improperly admitted.

The WA Supreme Court reasoned that the gang information from the jail intake forms was not gathered voluntarily, and thus should not have been admitted as evidence. In short, it reasoned that when a defendant’s self-incriminating statements are made in exchange for protection from credible threats of violence while incarcerated, the statements are coerced and involuntary:

“We do not see how statements made under these circumstances could be considered voluntary. The admission of these statements was a violation of the defendant’s Fifth Amendment rights.”

The WA Supreme Court also ruled that the trial court mistakenly allowed evidence of the type of music on the defendant’s phone as evidence of gang affiliation. “Los Tigres del Norte is a prominent and popular Latin band and there is no evidence in the record to support that enjoying their music is evidence of gang affiliation . . .  We take this opportunity to remind courts to be far more cautious when drawing conclusions from a defendant’s musical preferences.”  This scathing wisdom reminded courts to be careful when admitting generalized evidence about gang affiliation.  “Such evidence is often highly prejudicial and must be tightly constrained to comply with the rules of evidence.”

Finally, the Court ruled that much of the generalized “gang evidence” was irrelevant and prejudicial, and thus should not have been admitted. The court reasoned that, under ER 402, evidence which is not relevant is not admissible. Here, the gang evidence produced by the State’s gang expert witness was highly prejudicial:

“We agree and urge courts to use caution when considering generalized gang evidence. Such evidence is often highly prejudicial, and must be tightly constrained to comply with the rules of evidence.”

With that, the WA Supreme Court held the defendant was entitled to a new trial. Therefore, the Court reversed the convictions and gang aggravators.

My opinion? I really enjoyed the rulings in this case. Sometimes, mainstream culture and music can be misconstrued as “gang evidence” when said music/culture is heard/exhibited by minorities. The Court attacked this veiled racism. Good on them. Also, they made good rulings on the 5th Amendment issues. A defendant’s gang affiliation when being booked into jail is a matter of personal security. The information should not be admitted at trial.

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.