Category Archives: Search and Seizure

State v. Cherry: Consent & Self-Incrimination

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Due Process, Evidence, felony, law enforcement, Methamphetamine, Miranda, Search and Seizure, Self-Incrimination, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

In State v. Cherry, the WA Court of Appeals Division II decided that a police officer’s questions to the passengers of a vehicle – which were intended to determine whether one of the passengers could safely remove the defendant’s car from the scene – were routine booking questions and did not violate the defendant’s Fifth Amendment rights.

Defendant Mathew Cherry was arrested for driving with a suspended license. He was driving two passengers. When the police officer asked Cherry to confirm who was in the car, Cherry identified his two passengers. When asked whether either passenger could take the car, Cherry responded that neither had a license and that he did not know anyone who did. The officer told Cherry that his car would be impounded.

Cherry consented to a search of his car. A pipe containing methamphetamine residue was found. When Cherry was booked into jail, he resisted a strip search and apparently swallowed the contents of a small pouch after it was seen between his legs.

The State charged Cherry with Unlawful Possession of a Controlled Substance and Tampering With Evidence. Cherry filed a CrR 3.6 motion to suppress the evidence found in his car, arguing that the officers threatened to have his car impounded if he did not consent to its search and that his consent was coerced. The trial court also conducted a CrR 3.5 hearing in which Cherry challenged the admission of his statements to police. At trial, a jury found Cherry guilty as charged. He appealed.

Ultimately, the Court of Appeals upheld Cherry’s convictions. Here, the officer’s questions to Cherry’s passengers were not intended to and did not elicit incriminating information. Rather, the questions were intended to determine whether Cherry’s car could be safely removed from the scene.

Additionally, the court disagreed with Cherry’s arguments that officers were not permitted to ask for consent to search his car after he invoked his right to remain silent. Here, the officer informed Cherry of his Miranda rights before requesting Cherry’s consent to search the car. The court reasoned that the request for consent to search was not designed to elicit testimonial evidence and Cherry’s consent was not an incriminating statement. Therefore, law enforcement did not violate Cherry’s constitutional right to remain silent by requesting consent to search his car after Cherry had invoked that right.

Moreover, Cherry’s statements to police that he had consumed drugs earlier that day were admissible, and not made in response to any questioning likely to elicit an incriminating response. The court reasoned that even if Cherry’s statements were prompted by watching the police search his car, as Cherry now argues, they were not prompted by unlawful interrogation. There was no violation of Cherry’s right to remain silent. Therefore, his statements were properly admitted.

Finally, the court disagreed with Cherry’s arguments that his consent to search was not voluntary, and therefore, it violated the Fourth Amendment and the evidence found during the search is inadmissible. Here, under these facts, Cherry clearly consented.

For all of these reasons, the Court of Appeals affirm Cherry’s convictions.

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

State v. Mitchell: Bus Fare Officers

Bellingham Defense Attorney, Detention, felony, Firearm, law enforcement, Search and Seizure, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Sound Transit, King County Metro suspending fare enforcement to improve safety during novel coronavirus response | Mass Transit

In State v. Mitchell the WA Court of Appeals Division I decided that a fare enforcement officer (FEO) may detain a passenger for a period of time necessary to identify a bus rider and may also issue a notice of civil infraction when a passenger fails to pay the required fare or produce proof of payment when asked, if the infraction occurs in the officer’s presence. Finally, a “passenger” includes a person that the FEO observes stepping off the bus.

Here, Mitchell was convicted of Unlawful Possession of a Firearm in the First Degree. The firearms were discovered when a fare enforcement officer stopped him to check proof of fare payment after he exited a Metro bus. Mitchell argues he was unlawfully detained and the trial court erred by not suppressing evidence of the firearms.

The Court of Appeals reasoned that RCW 35.58.585(1) allows metropolitan municipal corporations to designate individuals to monitor fare payment. These persons have all the powers granted to enforcement officers under RCW 7.80.050 and 7.80.060. This means an FEO can issue a notice of civil infraction when the infraction occurs in the officer’s presence, request identification, and detain a person for a period of time reasonably necessary to identify the person. Also, under RCW 35.58.585(2)(b) the law specifically grants FEOs the additional authority for the following:

(i) Request proof of payment from passengers; (ii) Request personal identification from a passenger who does not produce proof of payment when requested; (iii) Issue a citation and (iv) Request that a passenger leave the bus or other mode of public transportation when the passenger has not produced proof of payment after being asked to do so by a person designated to monitor fare payment.

Here, the defendant challenged the legality of the stop. He argued that the word “passenger” includes only those persons physically present on a mode of public transportation. Under this theory, an FEO may request proof of payment from someone currently traveling on a bus, because that traveler’s freedom of movement is already restricted by his or her presence on a moving vehicle. However, once the person disembarks the bus, additional authority is needed to request proof of payment, because to do so an FEO must first stop the person.

Unfortunately for Mitchell, the WA Court of Appeals disagreed. They said that here, there is no question Mitchell was a passenger. The FEO witnessed Mitchell disembarking the bus. He asked Mitchell and the other departing passengers for their proof of payment as they stepped off the bus. By using the bus, as a passenger, Mitchell had already incurred the obligation to display proof of payment when asked. Under these facts, the FEO acted within the scope of his statutory authority by requesting proof of payment from Mitchell. Additional authority to detain was unnecessary.

Also, because Michell did not have ID on himself, the FEO had the authority to detain Mitchell for the time reasonably necessary to identify him. Accordingly, the FEO radioed for assistance and, within minutes, police arrived and confirmed Mitchell’s identity. At each step of this encounter, the FEO acted within the scope of his statutory authority.

The Court of Appeals upheld Mitchell’s conviction for Unlawful Possession of a Firearm First Degree.

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. Besola: Overbroad Search Warrant

Bellingham Defense Attorney, Constitutional Rights, Due Process, Evidence, law enforcement, Search and Seizure, Search Warrant, Washington Supreme Court, Whatcom County Criminal Defense, , ,

Federal Warrants and Search and Seizure Lawyer | Eisner Gorin LLP

In State v. Besola, the Washington Supreme Court held that a search warrant was overbroad. Because the warrant failed to meet the Constitution’s “particularity” requirement, the court reversed the Defendant’s convictions for Possession of Depictions of Minors Engaged in Sexually Explicit Conduct and Dealing in such depictions.

Mark Besola and Jeffrey Swenson lived together in Besola’s house. After a friend of Swenson’s, Kellie Westfall, was arrested, she told police that she had seen drugs and child pornography at Besola’ s house. Based on the information provided by Westfall, a judge issued a search warrant for illegal drugs but declined to issue a search warrant related to child pornography at that time.

At the scene, police saw CDs and DVDs with handwritten titles that implied that they contained child pornography. On the basis of this observation, police requested and obtained an addendum to the search warrant.

The language of that amended warrant (and whether it was sufficiently particular) is at the heart of the legal issue in this case.

The warrant indicated that the crime under investigation was “Possession of Child Pornography R.C.W. 9.68A.070.” Clerk’s Papers (CP) at 312 (boldface omitted). The warrant indicated that “the following evidence is material to the investigation or prosecution of the above described felony”:

1. Any and all video tapes, CDs, DVDs, or any other visual and or audio recordings; 2. Any and all printed pornographic materials; 3. Any photographs, but particularly of minors; 4. Any and all computer hard drives or laptop computers and any memory storage devices; 5. Any and all documents demonstrating purchase, sale or transfer of pornographic material.

Police seized a number of computers, memory storage devices, CDs, and DVDs. They ultimately found child pornography on one computer and on 41 disks with handwritten titles. They also found a DVD duplicating device (also known as a DVD burner) attached to the computer. Some disks contained duplicated copies of the child pornography.

A handwriting expert testified that Besola’s handwriting was on at least one of the disks containing child pornography and that indications of both Besola’s and Swenson’s handwriting were on multiple other disks. Both defendants were charged with Possession of Depictions of Minors Engaged in Sexually Explicit Conduct and Dealing in such depictions.

Although the Court of Appeals affirmed the convictions, the WA Supreme Court granted review on the issue of whether the search warrant meet the Fourth Amendment’s particularity requirement.

The Court reasoned that the Fourth Amendment to the United States Constitution requires warrants to “particularly describe the place to be searched, and the persons or things to be seized.” That requirement is heightened if the warrant authorizes a search for materials protected by the First Amendment to the United States Constitution.

For guidance, the court reviewed a 1992 case, State v. Perrone, that involved similar circumstances. In Perrone, the Court decided that the warrant in that case failed to meet the particularity requirement of the Fourth Amendment, in part because it provided for the seizure of items that were legal to possess, such as adult pornography.

Here, the Court decided the decision in Perrone is binding in this case. Under Perrone, the court concluded that many provisions of this search warrant were similarly overbroad. As in Perrone, the descriptions of the items to be seized expressly included materials that were legal to possess, such as adult pornography and photographs that did not depict children engaged in sexually explicit conduct.

Similar to Perrone, these descriptions could easily have been made more particular by adding the precise statutory language, “depictions of a minor engaged in sexually explicit conduct.” As in Perrone, the police in this case failed to add that language to their search warrant. Therefore, under Perrone, these provisions were insufficiently particular and thus invalid.

The WA Supreme Court denied the State’s arguments that the warrant in this case is saved by a citation to the child pornography statute at the top of the warrant. The Court reasoned the State was incorrect because the statutory citation does not modify or limit the items listed in the warrant, so it does not save the warrant from being overbroad. More importantly, said the Court, the State’s position conflicts with Perrone and would hinder the goals of the warrant particularity requirement.

Because the warrant fails to meet the Constitution’s particularity requirement, the WA Supreme Court reversed these convictions.

My opinion? Good decision. Yes, possessing child porn is illegal. However, so are illegal searches. Warrants must particularly describe the items believed to found. Otherwise, they become a meaningless ticket allowing police to engage a fishing expedition of our bodies, property, vehicles and homes. 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.

State v. Linder: Unwitnessed Search is Unlawful

Bellingham Defense Attorney, Constitutional Rights, Dismissal, Drug Offenses, Due Process, Evidence, Exclusionary Rule, felony, Methamphetamine, Miranda, Search and Seizure, Search Warrant, Sixth Amendment, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Image result for police search

In State v. Linder, the WA Court of Appeals Division III decided that evidence obtained pursuant to a search warrant was properly suppressed because the officer’s inventory of the search was not conducted with at least one witness.

Here, Defendant Aaron Linder was arrested by Kalama Police Chief Grant Gibson in March 2013 for driving with a suspended license. During the search incident to arrest, Chief Gibson found a small tin box inside the pocket of Mr. Linder’s hoodie. After being informed of his Miranda rights, Mr. Linder admitted being a daily user of hard drugs and that the tin box contained drug paraphernalia. But he refused to give his consent for Chief Gibson to open the box initially, and refused a second time at the police station.

The police obtained a search warrant. Sergeant Parker, without anyone else present, executed the warrant by opening the metal box and photographing and inventorying its contents. It was typical for the department’s night shift officer to work alone. The Kalama police department has a total of only five sworn officers.

Sergeant Parker inventoried the tin box as containing two pieces of aluminum foil, an empty plastic box, two plastic tubes, a hair pin, a safety pin, and a piece of plastic from a cigarette package. The cigarette wrapper contained a crystalline substance that appeared to be methamphetamine. After he finished the inventory and completed the return of service form, Sergeant Parker placed the items, a copy of his report, and a note for Chief Gibson in a temporary evidence locker.

The next morning, Chief Gibson, also acting alone, verified that the contents in the box matched Sergeant Parker’s inventory and field tested a small quantity of the cellophane wrapper and its contents, which tested positive for methamphetamine. He packaged the remainder of the crystalline substance for submission to the crime laboratory. Mr. Linder was thereafter charged with one count of Violation of the Uniform Controlled Substances Act, Chapter 69.50 RCW, for possession of methamphetamine.

Before trial, Mr. Linder moved to suppress the evidence found in the tin box on the grounds that it was searched in violation of CrR 2.3( d). The rule provides that a return of the search warrant shall be made promptly, shall be accompanied by a written inventory of any property taken, and-relevant here-that “the inventory shall be made in the presence of the person from whose possession or premises the property is taken, or in the presence of at least one person other than the officer.” In the suppression hearing that followed, both Sergeant Parker and Chief Gibson testified that they were unaware of the rule’s requirement that the inventory be made in the presence of another person.

The trial court granted Mr. Linder’s motion to suppress. The State appealed.

In reaching its decision, the WA Court of Appeals looked to the Exclusionary Rule In considering whether the contraband should be suppressed.

For those who don’t know, the Exclusionary Rule is a legal principle in the United States, under constitutional law, which holds that evidence collected or analyzed in violation of the defendant’s constitutional rights is sometimes inadmissible for a criminal prosecution in a court of law. The exclusionary rule may also, in some circumstances at least, be considered to follow directly from the constitutional language, such as the Fifth Amendment‘s command that no person “shall be compelled in any criminal case to be a witness against himself” and that no person “shall be deprived of life, liberty or property without due process of law”.

The Exclusionary Rule is grounded in the Fourth Amendment and it is intended to protect citizens from illegal searches and seizures. The exclusionary rule is also designed to provide a legal remedy and disincentive, which is short of criminal prosecution in response to prosecutors and police who illegally gather evidence in violation of the Fifth Amendment in the Bill of Rights compelled to self-incrimination. The exclusionary rule also applies to violations of the Sixth Amendment, which guarantees the right to counsel.

The WA Court of Appeals reasoned that Washington’s version of the Exclusionary Rule had three objectives:

First, and most important, to protect privacy interests of individuals against unreasonable governmental intrusions; second, to deter the police from acting unlawfully in obtaining evidence; and third, to preserve the dignity of the judiciary by refusing to consider evidence which has been obtained through illegal means.

Here, reasoned the Court, excluding the evidence served the third objective of preserving the dignity of the judiciary by refusing to consider evidence obtained through illegal means.  Here, a police officer’s unwitnessed late night execution of a search warrant in this case clearly violated CrR 2.3(d), called the reliability of his inventory into question, and could not be remedied other than by suppression.

My opinion? Great decision. Kudos to Division III for following the law.

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. Rooney: Unlawful Search of Bedroom, Yet Valid Frisk of Pants.

Bellingham Defense Attorney, Common Authority Rule, Constitutional Rights, Drug Offenses, Evidence, felony, Firearm, law enforcement, Search and Seizure, Terry Stop, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

What to Know About Unlawful Search and Seizure

In State v. Rooney, the WA Court of Appeals Division II gave interesting results on a multi-layered search & seizure case. First, an officer who lawfully entered a parolee’s room in order to arrest him, properly conducted a Terry frisk of a roommate’s pair of pants before giving them to the roommate. The frisk was justified by the presence of several swords, an axe and multiple knives in the room. However, the officer’s search of a room over the objection of the roommate, who was not on community custody, violated the roommate’s Constitutional rights.

Alexandria White, who was serving a term of community custody, began living with the defendant, Norman Rooney, in his home in December 2013 shortly after her release from prison. Her parole officer Chris Napolitano supervised White’s community custody. Napolitano knew that Rooney and White had lived together like a married couple and they had always lived in the same room together.

After White moved in with Rooney again that December, Napolitano discovered White had changed her address without notifying him, which violated her community custody conditions.

Napolitano obtained an arrest warrant for White and, with a team of law enforcement officers, went to Rooney’s house to arrest her on December 30, 2013. As Napolitano walked into the bedroom, White was standing in the bedroom with Rooney, who appeared to be asleep in bed. Napolitano observed swords and axes hanging on the bedroom wall and a couple of knives laying on the shelves. He observed additional weapons on Rooney’s nightstand. Napolitano advised White that by failing to report her new address and not being available for contact she had violated her community custody. White acknowledged that Napolitano would arrest her for the violation.

After Napolitano arrested White and placed her in the living room, Napolitano told White that he was going to search the bedroom. White responded that she lived in the living room, not the bedroom, but Napolitano did not see any sleeping arrangements or anything that appeared to be White’s belongings in the living room. Napolitano ordered Rooney to leave the bedroom so the officers could search it. Rooney objected to the search because he was not currently on community custody, but he began to physically comply.

Rooney, who was dressed in what appeared to be boxer shorts, asked to put on pants. Napolitano replied that he would have to search the pants “for safety reasons” before Rooney could put them on and leave the room. Given the other weapons in the room, Napolitano was concerned that Rooney might have a weapon in the pants. Rooney grabbed a pair of pants, and when Napolitano took hold of the pants, he immediately felt a firearm.

After Rooney was arrested and placed in the living room, Napolitano and Harvey searched the bedroom and found methamphetamine, heroin, and clonazepam. The State charged Rooney with three counts of Unlawful Possession of a Controlled Substance (methamphetamine, heroin, and clonazepam) and one count of First Degree Unlawful Possession of a Firearm. Rooney moved to suppress evidence of the controlled substances and the firearm. The trial court denied Rooney’s motion and found him guilty as charged at a bench trial. On appeal, Rooney argues that the trial court erred when it denied his motion to suppress.

The Court of Appeals reasoned that warrantless searches and seizures are generally unreasonable and violate the Fourth Amendment of the United States Constitution and article I, section 7 of the Washington Constitution. However, consent is one well-recognized exception to this rule. The State bears the burden of proving by clear and convincing evidence that a warrantless search falls into one of the exceptions to the warrant requirement.

The Court further reasoned that, in searches involving a cohabitant who consents to a warrantless search, Washington has adopted the Common Authority Rule; which says that a cohabitant may grant consent to search a residential area that each cohabitant has equal authority to control. This rule is based on the Washington Constitution’s guarantee of each individual’s expectation of privacy and the theory that a person assumes risk that his or her cohabitant may allow “outsiders” into a shared space.

Finally, the Court reasoned that the consent of only one person with common authority over the place to be searched when multiple cohabitants are present is NOT sufficient to conduct a lawful search of shared space.  “We have never held that a cohabitant with common authority can give consent that is binding upon another cohabitant with equal or greater control over the premises when the non-consenting cohabitant is actually present on the premises,” said the Court. “When a cohabitant who has equal or greater authority to control the premises is present, his consent must be obtained and the consent of another of equal or lesser authority is ineffective against the non-consenting cohabitant.”

With that, the court held that under application of the common authority rule, because Rooney was present and objected, the officers’ search of Rooney’s room was unlawful. The fact that White was serving a community custody term does not undermine Rooney’s right to object to a warrantless search of his bedroom. Therefore, the officers’ warrantless search of Rooney’s bedroom was unlawful as to Rooney, and the trial court erred in denying Rooney’s motion to suppress the methamphetamine, heroin, and clonazepam evidence found during the unlawful search.

Regarding the frisk of Rooney’s pants, the Court of Appeals reached an entirely different decision. They decided the trial court did not error in denying Rooney’s motion to suppress evidence of the firearm found in Rooney’s pants. The Court reasoned that an officer may conduct a non-consensual protective Terry frisk for weapons if the officer can articulate specific facts that create an objectively reasonable belief that the person is armed and dangerous. The officer need not be certain that the person is armed before he or she conducts a protective frisk.

Here, Napolitano and other law enforcement officers saw “several swords, an axe, and multiple knives” in Rooney’s bedroom. Because he was aware of the number of weapons, Napolitano was concerned for his safety. Also, Rooney’s behavior following Napolitano’s warning that the pants would be searched, together with Napolitano’s observation of the weapons in plain view in his bedroom, gave Napolitano articulable suspicion that the pants Rooney wanted to wear might have contained a weapon.

The court concluded that the officers’ warrantless search of Rooney’s bedroom over his objection was unlawful, and therefore, the evidence of the controlled substances must be suppressed. But Napolitano’s frisk of Rooney’s pants was lawful and based on reasonable suspicion. Therefore, the court reversed Rooney’s three convictions for Unlawful Possession of a Controlled Substance (methamphetamine, heroin, and clonazepam), and affirmed his conviction for First Degree Unlawful Possession of a Firearm.

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.

Stingray “Spy” Devices

ACLU, Bellingham Defense Attorney, Cell Phone, Constitutional Rights, Due Process, Evidence, law enforcement, Pretrial Investigations, Privacy, Probable Cause, Search and Seizure, Search Warrant, Stingray Devices, Technology, Text Messages, United States Supreme Court, Whatcom County Criminal Defense, , ,

This undated handout photo provided by the U.S. Patent and Trademark Office shows the StingRay II, manufactured by Harris Corporation, of Melbourne, Fla., a cellular site simulator used for surveillance purposes. (AP Photo/U.S. Patent and Trademark Office)

Intimidating, no?

This suitcase-sized device, called Hailstorm or Stingray, is a controversial cellular phone surveillance device manufactured by the Harris Corporation. It is designed to sweep up basic cellphone data from a neighborhood and identify unique subscriber numbers. That data is then transmitted to the police, allowing them to locate a phone without the user even making a call or sending a text message. It’s the newest, most advanced technology in spyware which essentially allows police to observe, record and otherwise pinpoint your cell phone activity. And, of course, a growing number of police departments are purchasing these devices.

Stingrays cost as much as $400,000 and acts as a fake cell tower. The system, typically installed in a vehicle so it can be moved into any neighborhood, tricks all nearby phones into connecting to it and feeding data to police. In some states, the devices are available to any local police department via state surveillance units. The federal government funds most of the purchases, via anti-terror grants.

These devices are used to spy on people’s words, locations and associations. Stingrays can capture everything from metadata (who called whom, when, and sometimes from where) to the content of calls.

A news article from USA Today titled, Cellphone Data Spying: It’s Not Just the NSA describes how numerous police agencies across the country refuse to admit whether they’ve used Stingrays in surveillance. According to the article, most police agencies deny public records requests, arguing that criminals or terrorists could use the information to thwart important crime-fighting and surveillance techniques. Police maintain that cellphone data can help solve crimes, track fugitives or abducted children or even foil a terror attack.

The American Civil Liberties Union (ACLU) has investigated the use of Stingrays and has also successfully identified 54 agencies in 21 states and the District of Columbia that own Stingrays. Many agencies continue to shroud their purchase and use of Stingrays in secrecy.

A growing number of courts and legal authorities are increasingly wary on whether Stingrays violate citizen’s rights against unlawful search under the Fourth Amendment to the U.S. Constitution. For example,  in FROM SMARTPHONES TO STINGRAYS: CAN THE FOURTH AMENDMENT KEEP UP WITH THE TWENTY-FIRST CENTURY? attorney Brittany Hampton wrote a Note in the University of Louisville Law Review which discussed the questionable use of the Stingray devices by police agencies.

In her article, Ms. Hampton argues that individuals have a reasonable expectation of privacy in their movements when using their cellphones; therefore, the use of the Stingray constitutes a search within the meaning of the Fourth Amendment. She also discusses the need for the United States Supreme Court to develop a clear warrant requirement for the monitoring of an individual using the Stingray device. Ultimately, Hampton advocates a warrant requirement for utilizing the Stingray devices for police tracking purposes because the warrantless use of the Stingray is an unreasonable search under the Fourth Amendment.

My opinion? I wholeheartedly agree with Ms. Hampton, the ACLU and other legal experts on this issues. Using Stingrays is an unlawful search. Quite frankly, the government should not have carte blanche secret access to people’s cell phone use and information. It’s overly intrusive and distasteful that the government can, without warning, essentially use people’s cell data as pretextual evidence to investigate our whereabouts, listen to our conversations and ultimately charge us with crimes.

Even worse – and speaking as a criminal defense attorney – it’s disturbing that police agencies can use the information obtained from Stingrays as probable cause to obtain search warrants of people’s homes and seize evidence therein. Moreover, if I move to suppress the evidence gained from the search warrant as the fruits of an unlawful search, local police agencies deny and circumvent my Motions to Compel Evidence and Public Disclosure Requests by simply having the feds conduct the Stingray search. This is bad.

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. Martines: WA Supreme Court Finds Defendant Guilty of DUI on Blood Test Case

Bellingham, Bellingham Defense Attorney, Blood Test, Constitutional Rights, Due Process, Evidence, Exigent Circumstances, Forensics, law enforcement, marijuana, Search and Seizure, Search Warrant, Washington Court of Appeals, Washington Supreme Court, Whatcom County Criminal Defense, , ,

Bad news.

In State v. Martines, the Washington Supreme Court reversed the WA Court of Appeals Division I. I blogged about this case last year in State v. Martines: More Good Caselaw on Blood tests Taken After DUI Arrests. There, the WA Court of Appeals version of State v. Martines held that the blood test performed on Martines was an unlawful warrantless search. The Court of Appeals also reasoned that drawing blood and testing blood constitute separate searches, each of which requires particular authorization, and that the warrant here authorized only a blood draw.

The original Martines opinion appeared strong. It was rooted in the United States Supreme Court’s decision in Missouri v. McNeely; which requires police officers to obtain search warrants for blood draws in DUI cases when exigent circumstances do not otherwise exist. It also followed Washington State legalizing marijuana, thus necessitating stronger regulations and monitoring of blood tests performed during DUI investigations.

The WA Supreme Court decided differently in a short, scathing opinion signed by all justices.

First, the Court held that a warrant authorizing the testing of a blood sample for intoxicants does not require separate findings of probable cause to suspect drug and alcohol use so long as there is probable cause to suspect intoxication that may be caused by alcohol, drugs, or a combination of both.

Second, the Court  further held that the search warrant lawfully authorized testing Martines’s blood sample for intoxicants because it authorized a blood draw to obtain evidence of DUI. In other words, the search of Martines’s blood did not exceed the bounds of the search warrant when a sample of Martines’s blood was extracted and tested for intoxicants anyway.

My opinion?

Bad decision. I’m amazed the WA Supremes didn’t discuss Missouri v. McNeely at all. Not once. McNeely profoundly and significantly evolved search and seizure law concerning blood draws in DUI investigations. Indeed, McNeely was the underpinnings for Division One Court of Appeals case State v. Martinez. Yet the WA Supremes ignore McNeely as if it didn’t exist. Ignoring case precedents violates stare decisis, plain and simple.

Hopefully, this case gets appealed to the U.S. Supreme Court for further review.

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

State v. Brock: WA Supreme Court Reverses Search of Backpack Case

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Due Process, Evidence, felony, law enforcement, police, Search and Seizure, Terry Stop, Washington Court of Appeals, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

In State v. Brock, the WA Supreme Court reversed the Court of Appeals decision to reverse the Defendant’s convictions for 10 counts of Identity Theft in the Second Degree, 3 counts of Forgery, and violation of the Uniform Controlled Substances Act.

Last year, in State v. Brock: The “Time for Arrest” Doctrine, I blogged about how the Court of Appeals reversed Brock’s conviction, agreeing with Brock that it was not a valid search of his person under article I, section 7 of the Washington Constitution. The court reasoned that under the “Time for Arrest” doctrine, Brock did not have actual, exclusive possession of the backpack “immediately preceding” arrest and reversed Brock’s conviction on that basis.

Well, the WA Supreme Court decided different.

The Court reasoned that the “Time for Arrest” doctrine didn’t apply because the Defendant’s backpack was a part of his person at the time of arrest:

“Under these circumstances, the lapse of time had little practical effect on Brock’s relationship to his backpack. Brock wore the backpack at the very moment he was stopped by Officer Olson. The arrest process began the moment Officer Olson told Brock that although he was not under arrest, he was also not free to leave. The officer himself removed the backpack from Brock as a part of his investigation. And, having no other place to safely stow it, Brock would have to bring the backpack along with him into custody. Once the arrest process had begun, the passage of time prior to the arrest did not render it any less a part of Brock’s arrested person.”

Based on that the WA Supremes reversed the Court of Appeals and decided the search was a valid search incident to arrest.

My opinion? Obviously, I agree with Justice McCloud’s dissenting opinion. He stated that the majority opinion ignores the strict limitations imposed on law enforcement during a Terry stop, confuses the justifications for a Terry frisk with the justifications for a search incident to arrest, and “conflicts with our precedent holding that a full custodial arrest is a prerequisite to any search incident to arrest.”

Justice McCloud couldn’t have said it better in the tongue-in-cheek retort in the last sentence of his dissent:

“I fear the majority’s new rule will only invite further expansions of our ‘narrow’ and ‘jealously guarded’ exception to the warrant requirement.”

Exactly.

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.

“Studies” Show Pot-Related Accidents Doubled from 2013-2014

Bellingham Defense Attorney, Blood Test, Department of Licensing, Drug Offenses, DUI, Evidence, law enforcement, marijuana, misdemeanor, police, Reckless Driving, Search and Seizure, Studies, Traffic Infractions, Washington State Traffic Commission, Whatcom County Criminal Defense, , ,

 

Newly released data from the Washington Traffic Safety Commission (WTSC) shows that marijuana is increasing as a factor in deadly crashes. The number of marijuana-impaired drivers involved in accidents has nearly doubled at a 48% increase from 2013 to 2014.

“We have seen marijuana involvement in fatal crashes remain steady over the years, and then it just spiked in 2014,” said Dr. Staci Hoff, WTSC Data and Research Director.

Also , Julie Furlong of the WTSC said 60% of the drivers involved in fatal or deadly crashes between 2010 and 2014 were tested for drugs. Of those tested, about 20% were positive for pot. These figures match those of previous years, they remained about the same year after year.

New testing and new analytics are now allowing the WTSC to determine specific THC levels at the time the driver is tested following an incident or crash. It’s called “active THC,” or enough to impair the driver’s coordination and judgement.  According to the WTSC, less than half of drivers who tested positive for pot in 2010 had active TCH. However, that number increased to 65% in 2013, and skyrocketed to 85% in 2014.

Dr.Staci Hoff, Data and Research Director for the Commission, says that simply means 85% of the drivers involved in deadly-fatal collisions in 2014 who had pot in their system were actually high at the time of the accident.

Young men between the ages of 21-25 have seen the greatest jump,  with over a 66% increase.

Some argue these facts show that since the legalization of marijuana in Washington state, we now face a potential epidemic of impaired drivers who are high behind the wheel. As a consequence, the National Drive Sober or Get Pulled Over campaign is gaining momentum. From now through Labor Day, extra law enforcement officers are patrolling areas and locations where DUI is a problem.

Over 100 law enforcement agencies including all districts of the Washington State Patrol will be teaming up and participating in the extra patrols all across the state. These extra patrols are all part of Target Zero—striving to end traffic deaths and serious injuries in Washington by 2030.

My opinion?

First, only 60% of fatal car crash victims were tested for drugs. Without understanding how this 60% was arrived at, we run the risk of a data selection bias.

Second, if 20% of the group tested positive for marijuana then this only reflects the actual percentage of cannabis users in the state; which, by itself, is not a very convincing argument of anything.

Third, we need more data. You can’t jump to conclusions based on data that’s too new. It needs more time to be compared against other factors. We don’t hear anything else about possible confounding factors to this data, which also raises serious suspicions. However even this admission whittles marijuana as the sole culprit down to maximum of 10% of all fatal crashes.

Fourth, the data comes on the heels of new DUI emphasis patrols. Sounds like a media spin to me.

Finally, what we really need to know is how many fatal accidents occurred solely for users of marijuana over the limit. This number would be the best indication of a causal relationship if confounding factors were accounted for and the sample size was unbiased.

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

Is Texting While Driving the New DUI?

ACLU, Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Due Process, DUI, law enforcement, Legislation, marijuana, misdemeanor, police, Probable Cause, Search and Seizure, Technology, Text Messages, Traffic Infractions, Washington Supreme Court, Whatcom County Criminal Defense, , ,

 

Police Officer Posing As Construction Worker

Recently, Marietta Police dressed up as a construction workers at a busy intersection to catch distracted drivers who were text messaging while driving. The police go as far as busting drivers who are texting while stopped at red lights. It appears that going undercover is an effective way to bust drivers texting, tweeting or checking emails behind the wheel.

“What we’ve done here is we’re able to put officers in the roads so we’re able to get close enough almost inside their cars so we can look down and see exactly what they’re doing on their phones,” said Marietta police Officer Nick Serkedakis. “I really think this is the DUI of the future. Impairment is still a problem, but this distracted driving is killing as many people as drunk drivers.”

The tickets are $150 and one point on your license.

Can a program like this – one where WA police officers pose as construction workers at certain locations to observe texting drivers – be implemented in Washington State?

Probably not.

This program is very similar to DUI checkpoints, which were basically outlawed in 2008. For those who don’t know, sobriety checkpoints (also called DUI checkpoints) are locations where law enforcment officers are stationed to check drivers for signs of intoxication and impairment. Many jurisdictions utilize sobriety checkpoints as part of their larger drunk driving deterrance program. Due to legal issues surrounding their use, not all states conduct sobriety checkpoints. Some states have laws authorizing their use. Others forbid them or are silent on the issue.

According to the Government’s Highway Safety Association (GHSA), Washington State is one of only 12 states which do not conduct DUI checkpoints. The story is interesting. In 2008, then-Governor Christine Gregoire wanted the state Legislature to authorize police to set up sobriety spot checks, a practice unseen in Washington since the state Supreme Court declared it unconstitutional in 1988 under City of Seattle v. Messiani.

Some background is necessary. In Messiani, the Washington State Supreme Court decided that the Seattle Police Department’s sobriety checkpoint program was constitutional. In short, police officers set up roadblocks where all oncoming motorists were stopped. The police lacked warrants and any particular suspicion of criminal activity. The City of Seattle argued that the State’s interest in the legal operation of vehicles outweighs any privacy interest under Article I, Section 7 of the WA Constitution. Ultimately, the Washington State Supreme Court concluded that the City of Seattle’s position was unlawful, and held that sobriety checkpoints were unconstitutional.

At any rate, Governor Gregoire’s proposed DUI Checkpoint legislation failed. The ACLU even got involved. In the end, Legislators simply lacked the political will overturn the WA Supreme Court’s City of Seattle v. Messiani. 

Unlike Washington, however, Georgia has  actively legalized DUI checkpoints. They are conducted weekly and aggressively; and upheld under the State of Georgia’s Constitution.

Due to the differences, I can’t see WA police officers successfully pulling off an anti-text messaging campaign like the Georgia police officers can. This campaign is too similar to DUI checkpoints, which are illegal in Washington State.

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.