Category Archives: Search and Seizure

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.

New Smartphone App Warns You When You’re Too Stoned To Drive

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Detects Marijuana Impairment

Technology. Gotta love it.

Canary has created a smartphone app which checks your mental and physical performance levels after ingesting marijuana and before driving. The app has gained widespread popularity and is sanctioned by NORML, an organization whose mission is to move public opinion to legalize the responsible use of marijuana by adults.

The app is straightforward: after logging in, it quickly subjects users to four basic tests: (1) a memory challenge where you have to recall six numbers that briefly appear on screen, (2) a reaction-time game where you have to quickly identify a particular icon from a series of images that pop up, (3) a time-perception assessment where you have to count off 20 seconds in your head as accurately as possible, and (4) a balance test that uses your phone’s accelerometer to gauge your ability to stand motionless on one foot.

After taking the tests, the app compares your results to a personalized performance baseline based on your past attempts at the app or norms built into the program.

Canary then determines whether your performance is impaired. At the end of the three-minute session, a green light means you’re not impaired, a yellow light means you should reconsider driving, and a blinking red light means you are impaired.

“This tool ideally allows cannabis consumers to take control and identify when they present a traffic-safety risk or when they may be under the influence,” says Paul Armentano, deputy director of NORML. “I believe this is information that all responsible marijuana users will want to know.”

The secret to Canary is that it doesn’t focus on potential markers of impaired performance, like levels of THC in your breath, but instead on performance itself. And since it launched weeks ago, Canary has been downloaded more than 10,000 times and is attracting attention from major marijuana players.

My opinion? Canary moves in the right direction. When it comes to marijuana use, drug tests such as urinalyses or blood tests are highly retrospective. The best those tests can do is assess lifestyle and acknowledge that the perpetrator consumed pot at some time recently.  However, these tests have absolutely no impact on whether you can perform. It’s unfair to prosecute someone who might have smoked a joint on Thursday and tested positive on Monday. So yes, testing someone’s performance before driving is absolutely critical to discovering if they’re too stoned to drive.

There’s a social justice incentive behind accurate marijuana impairment tests as well: Since African-Americans are far more likely to be pulled over and arrested for marijuana offenses than whites, an objective way to determine who’s high and who’s not could help level the playing field.

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. Z.U.E.: Terry Stop Based on Unreliable Informant Tip Was Unlawful

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

Good decision.

In State v. Z.U.E., the Washington Supreme Court decided that when police stop an individual based on an informant’s tip, there must be some “indicia of reliability” based on the totality of the circumstances. Here, there wasn’t.

The facts show that Z.U.E. was a juvenile passenger in a car stopped by police after several 911 callers reported a bald shirtless man seen carrying a gun. Another caller reported a 17 year old female gave the gun to the shirtless man. Based on these tips, police stopped a car believing that the female was in the car. They ordered Z.U.E out of the vehicle, searched him, and found marijuana on his person. The officers did not find any guns, nor did they find the bald, shirtless subject.

The state prosecuted Z.U.E for Unlawful Possession of a Controlled Substance and Obstructing a Law Enforcement Officer. At his trial, Z.U.E. argued a CrR 3.6 Motion to Suppress and essentially challenged the Terry stop and subsequent search incident to arrest. The police who stopped ZUE did not know how many 911 callers there were or the identities of the callers and did not corroborate the report regarding the female with a gun.  The trial court denied the motion. Z.U.E. was found guilty of the drug charge and acquitted on the Obstructing charge. Z.U.E. appealed. The WA Court of Appeals reversed, holding that the 911 calls lacked sufficient “indicia of reliability” to justify the stop. Again, the case went up on appeal – this time, by the State –  to the WA Supreme Court.

The WA Supremes affirmed the WA Court of Appeals and suppressed the evidence. In reaching their decision, the Court discussed Terry stops. In challenging the validity of a Terry stop, article I, section 7 of the WA Constitution generally tracks the U.S. Constitution’s  Fourth Amendment analysis. That said, warrantless seizures are presumed unreasonable, and the State bears the burden of establishing that the seizure falls within one of the carefully drawn exceptions to the warrant requirement. One such exception is a brief investigatory detention of a person, known as a Terry stop. For a Terry stop to be permissible, the State must show that the officer had a “reasonable suspicion” that the detained person was, or was about to be, involved in a crime.

They court further reasoned that when police stop an individual based on an informant’s tip, there must be some “indicia of reliability” based on the totality of the circumstances. There must be either (1) circumstances establishing the informant’s reliability or (2) some corroborative observation by the officers that shows the presence of criminal activity or the informer’s information was obtained in a reliable fashion. Here, the police did not have any articulable reason to suspect any of the passengers in the car of criminal activity. The seizure of Z.U.E was unlawful and the evidence obtained as a result of that seizure should have been suppressed.

My opinion? Good decision. This was a straightforward application of the law. The informant tips were unreliable. Also, Z.U.E.’s involvement on the 911 calls and firearms was so attenuated that it was virtually irrelevant. Well done, WA Supremes!

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. Flores: WA Court of Appeals Decides Frisk for Gun Was Unconstitutional

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In State v. Flores, Division III of the WA Court of Appeals UPHELD the suppression of a gun that officers found on an individual who was walking with a known-gang member and fugitive who had just threatened another person with a firearm. The reason for the suppression? There were no grounds to frisk the defendant because he made no furtive movements, had no known violent propensities, and was compliant with all of the officer’s directions.

Here, Moses Lake police were responded to an anonymous report that Giovanni Powell held a gun to somebody’s head. Dispatch also reported an outstanding warrant for the arrest of Powell. He was a known gang member and a fugitive.

The defendant, Cody Flores, was with Powell. Although Flores had no warrants for his arrest and did not point a firearm at anyone, Flores did, in fact, possess a firearm on his person. Unfortunately, he possessed the firearm unlawfully because a prior felony conviction barred his possession.

Police apprehended both Powell and Flores. Although Flores complied with officers, had no known violent propensities and was compliant with all of the officer’s directions, Flores was nevertheless frisked. Officers found his firearm. He was charged with Unlawful Possession of a Firearm in the First Degree in violation of RCW 9.41.040(1)(a). However, Flores’ his defense attorney prevailed in a 3.6 Motion to suppress the firearm due to an unlawful search.

Among other findings, the trial court found that the officers lacked individualized articulable suspicion to suspect Cody Flores of criminal activity. The trial court granted Cody Flores’ motion to suppress evidence of the gun found on his person and dismissed the charge against him. The State filed an appeal.

The WA Court of Appeals sided with the trial court’s suppression. It reasoned that the Washington Constitution, not the Fourth Amendment to the United States Constitution, is the controlling law. Article I, section 7 of the WA Constitution provides that “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” The Court reasoned that WA’s protection encompasses and exceeds the protection guaranteed in the Fourth Amendment of the United States Constitution.

The Court further reasoned that, as a general rule, warrantless searches and seizures are per se unreasonable, in violation of the Fourth Amendment and article I, section 7 of the Washington State Constitution. There are five exceptions to the warrant requirement. They include (1) exigent circumstances, (2) searches incident to a valid arrest, (3) inventory searches, (4) plain view searches, and (5) Terry investigative stops. The State bears the burden of demonstrating that a warrantless seizure falls into a narrow exception to the rule. “This is a strict rule.” said the Court. “Exceptions to the warrant requirement are limited and narrowly drawn.

“Merely associating with a person suspected of criminal activity does not strip away the protections of the constitution,” said the Court. “In order for police to lawfully seize an otherwise innocent individual present with an arrestee, the arresting officer must articulate an ‘objective rationale’ predicated specifically on safety concerns.”

Finally, the court reasoned that automatically authorizing the search of non-arrested individuals because those individuals happen to be associated with the arrestee, or within the vicinity of the arrest, would distort the narrow limits of the warrant exceptions and offend fundamental constitutional principles. Because the privacy interest of a non arrested individual remains largely undiminished, full blown evidentiary searches of non-arrested individuals are constitutionally invalid even when officers may legitimately fear for their safety. “A generalized concern for officer safety has never justified a full search of a non-arrested person,” said the court.

With that, the Court of Appeals affirmed the trial court’s suppression of evidence and dismissal of charges against Cody Flores.

My opinion? This is a well-reasoned case. It’d be different if the defendant was doing something unlawful, being uncooperative and/or raising safety concerns with the police. Here, the situation was purely mathematics. Again, there can search incident to arrest if there is no arrest. And there can be no arrest without probable cause. Here, there was no probable cause to arrest and search Mr. Flores. Period.

Good opinion!

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. E.J.J.: Exercising Freedom of Speech is NOT Obstructing.

Bellingham Defense Attorney, Constitutional Rights, Dismissal, Due Process, Jury Trial, Juvenile, law enforcement, misdemeanor, Obstructing, police, Probable Cause, Search and Seizure, Washington Court of Appeals, Washington Supreme Court, Whatcom County Criminal Defense, , ,

Student Press Law Center | Know your rights when covering a protest

Excellent opinion.

In State v. E.J.J., the Washington Supreme Court  held that a juvenile offender, who called the officers abusive names, yelled, and used profanity toward the officers while the officers were engaged in a criminal investigation, CANNOT be convicted of Obstructing a Law Enforcement Officer. The words the juvenile directed at the officers are protected by the First Amendment. The obstruction statute is also not violated by a citizen’s presence at a scene, provided the citizen does not physically interfere with police. 

Here, juvenile defendant E.J.J. was charged with Obstructing a Law Enforcement Officer under RCW 9A.76.020(1). Under this law, a person is guilty of obstructing a law enforcement officer if the person willfully hinders, delays, or obstructs any law enforcement officer in the discharge of his or her official powers or duties. Obstructing is a gross misdemeanor punishable up to 1 year in jail and a $5,000.00 fine.

This case began as a call for police assistance to E.J.J. ‘s house to help with his intoxicated, out-of-control sister, R.J. (a juvenile at the time). The police responded and began their intervention by escorting R.J. out of the house 10 to 15 feet away from the front door, where the officers attempted to calm her down. E.J.J. grew concerned when he saw an officer reach for what he perceived to be a nightstick. E.J.J. exited the house and stood on the porch, telling the officers that R.J. was his sister and that they should not use the nightstick. The officers advised him that they were in the middle of their investigation and instructed him multiple times to leave the scene and return to the house.

Initially, E.J.J. did not comply, questioning why he had to return to the house. When, eventually, he did return to his home, he stood in the open doorway and continued his verbal interaction with the officers. The house had double doors: a wrought iron screen door, through which someone could see out and communicate through, and a second, solid wood door.

The officers directed E.J.J. multiple times to close the solid wood door and to withdraw further into the home, but E.J.J. refused, stating that he wanted to supervise the scene from the doorway ( 10 to 15 feet away from the other officers and R.J.) to make sure that R.J. was not harmed. E.J.J. continued to stand behind the closed wrought iron door. Multiple times, an officer reached into the home to close the solid door. E.J.J. would immediately reopen it. At this point, E.J.J. was irate, yelling profanities and calling the officers abusive names. An officer warned E.J.J. that he could be arrested for obstruction. After E.J.J. continued to reopen the solid door, an officer put him under arrest for obstruction of a law enforcement officer. The entire interaction lasted approximately 10 to 15 minutes.

E.J.J. was found guilty at trial. he appealed his conviction to the WA Court of Appeals. Unfortunately, the Court of Appeals upheld E.J.J.’s conviction. The case was again appealed, only this time to the WA Supreme Court.

 The WA Supreme Court reasoned that many court cases have consistently and strongly held that people cannot be held liable when exercising their right to speak. “While E.J.J. ‘s words may have been disrespectful, discourteous, and annoying, they are nonetheless constitutionally protected.”

The Court further reasoned that our cases have consistently required conduct in order to establish obstruction of an officer. “In other words, a conviction for obstruction may not be based solely on an individual’s speech because the speech itself is constitutionally protected. This review is also consistent with the approach established by the United States Supreme Court’s See Street v. New York.”

The WA Supreme Court had many reasons for disagreeing with the WA Court of Appeals. First, the WA Supremes disagreed that E.J .J.’ s physical approach toward the officers was sufficient evidence of conduct to support his conviction: “E.J.J. did not physically interfere with or touch either the police or his sister. Furthermore, the trial court’s findings of fact provide that E.J.J. did not make any threatening movements toward the officers at any time.”

Second, the WA Supremes disagreed that E.J.J.’s presence at the scene escalated the situation: “E.J.J. ‘s mere presence at the scene cannot constitute conduct. E.J.J. had every right to stand on his own property, provided he did not physically interfere with police.”

Third, the WA Supremes disagreed that E.J.J.’s refusal to obey the officers’ repeated requests to leave the scene was sufficient evidence of conduct: “This exchange is so intertwined with E.J.J.’s protected speech that we find insufficient evidence of E.J.J. ‘s conduct to support his conviction on this basis.”

Finally, the WA Supremes disagreed there was evidence of obstruction because an officer was eventually required to escort E.J.J. back to the home, thus delaying officers: “Inconvenience cannot, taken alone, justify an arrest for obstruction.” The Court concluded with the following:

“Where individuals exercise their constitutional rights to criticize how the police are handling a situation, they cannot be concerned about risking a criminal conviction for obstruction. Such a conviction is not permitted under the First Amendment. After a comprehensive review of the record and the trial court’s findings, the decision of the trial court is reversed and charges are dismissed.”

My opinion? EXCELLENT decision. I’ve had many, many clients charged with Obstructing simply because they voiced a heated opinion with law enforcement officers during an investigation. Although it’s never okay to be disrespectful toward law enforcement, obstructing requires conduct – plain and simple. I’m pleased our Washington Supreme Court made the right 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.

States With the Highest DUI Arrests

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States With the Most Drunk Driving Problems (2021)

Today, a national study on DUI arrests was released by Project Know, a drug addiction resource center that combats substance addiction and the societal issues that stem from it. In it, they sifted through data from federal agencies to figure out where you are most likely to get arrested for a DUI, per capita.

For example, Seattle had 2,861 DUI incidents in 2013, which puts its DUI arrest rate at 43.8 per 10,000 residents—slightly lower than Washington’s 2013 rate of 49.8. There were more DUIs in Seattle in 2013 than in 2012 or 2011 and, so far this year (up to November 16th), there have been 2,588, which should put the end-of-year total at about the same level as 2013’s.

My opinion? Interesting projections. Let’s see data showing the lobbying efforts and financial contributions of different anti-drinking-&-driving groups like Mothers Against Drunk Driving (MADD) . I wonder if their efforts have anything to do with the projections and proactive enforcement of DUI laws in Washington? Just a thought.

State v. Wisdom: Unlawful Search of Zipped Shaving Kit Bag

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Interesting opinion. In State v. Wisdom, the WA Court of Appeals Division III decided the removal and warrantless inspection of a zipped shut shaving kit bag found in the front seat of a stolen vehicle the defendant was driving was not a lawful search incident to arrest because  the defendant sat handcuffed in the patrol car at the time of the seizure and search of the toiletry bag. The methamphetamine found in the zipped shut shaving kit is not lawful pursuant to the impound inventory doctrine, as unzipping the kit exceeded the lawful scope of an impound.

Defendant Heath Wisdom drove a Chevrolet pickup truck with an ATV in its back. Someone earlier reported both vehicles as stolen. Yakima County Sheriff Deputy Nate Boyer, while on patrol, passed the pickup, and Boyer’s automated license plate reader identified the pickup as stolen. Officer Boyer pulled Wisdom over and arrested him for possession of a stolen vehicle. Boyer handcuffed Wisdom, searched his body, and escorted him to the patrol vehicle. Officer Boyer found on Wisdom’s body a pipe that Wisdom admitted he used for smoking methamphetamine.

Deputy Nate Boyer advised Heath Wisdom of his Miranda rights. Officer Boyer asked if there were drugs in the truck, and Wisdom replied that methamphetamine lay on the front seat. Officer Boyer looked inside the cab of the truck and saw filters, some cleaner, and a black “shaving kit type” bag. Officer Boyer concluded that the bag contained the methamphetamine. The toiletry bag was closed, but Boyer spied money through the mesh side of the bag.

After photographing the truck, Deputy Boyer removed the bag from the vehicle, opened it, and found methamphetamine, cocaine, ecstasy, heroin, drug paraphernalia, and two thousand seven hundred dollars in cash. Heath Wisdom told Deputy Boyer that he owned the black bag. Deputy Boyer had not asked Wisdom if he owned the black bag before searching inside the bag.

Deputy Boyer never obtained a warrant for his search, nor did he request Heath Wisdom’s consent before opening the black bag. Law enforcement impounded the truck and ATV, since the legal owner could not be located.

The State of Washington charged Heath Wisdom with three counts of Possession of a Controlled Substance in violation of RCW 69.50.4013(1) (cocaine, ecstasy, and heroin) and one count of Possession of a Controlled Substance with Intent to Deliver under RCW 69.50.401(1) (methamphetamine). Wisdom moved under CrR 3.6 to suppress all evidence found in the black toiletry bag. However, the trial court denied Heath Wisdom’s motion to suppress. The WA Court of Appeals accepted review of this case.

First, the Court reasoned that the search incident to arrest exception to the warrant requirement did NOT excuse police from obtaining a search warrant before unzipping and perusing the inside of the shaving kit bag. The court’s opinion was quite lengthy in explaining the need for society to trust police, and that doing so required officers to obtain search warrants in cases like this, and that failure to do so violates a defendants rights under article I, section 7 of the WA Constitution as well as the Fourth Amendment to the U.S. Constitution.

The Court emphasized how the caselaw treats “luggage and other closed packages, bags, and containers” as unique for purposes of police searches. Washington courts recognize an individual’s privacy interest in his closed luggage, whether locked or unlocked. Indeed, the Court gave a very colorful analyses on this subject:

A person does not rummage through a woman’s purse, because ofsecrets obtained therein. A man’s shaving kit bag can be likened to a woman’s purse. The kit bag could obtain prescription drugs, condoms or other items the owner wishes shielded from the public. The bag is intended to safeguard the privacy of personal effects. Literature, medicines, and other things found inside a bag may reveal much about a person’s activities, associations and beliefs.

The Court further reasoned that Washington allows a few jealously and carefully drawn exceptions to the warrant requirement, which include exigent circumstances, searches incident to an arrest, inventory searches, plain view searches, and Terry stops. Furthermore, under Arizona v. Gant, a warrantless vehicle search incident to arrest is authorized when the arrestee would be able to obtain a weapon from the vehicle or reach evidence ofthe crime of arrest to conceal or destroy it. Here, Heath Wisdom sat handcuffed in the patrol car at the time of the seizure and search of the toiletry bag. He lacked access to the bag.

Furthermore, under State v. Snapp, the Court reasoned the WA Constitution disapproves expansive application of the search-incident-to arrest exception to the period of time after the arrestee is secured and attendant risks to officers have passed. When a search can be delayed without running afoul of concerns for officer safety or to preserve evidence of the crime of arrest from concealment or destruction by the arrestee, and does not fall within another applicable exception, the warrant must be obtained. The police officer can prevent destruction of evidence by holding the bag as a sealed unit until obtaining a warrant.

Finally, the Court ruled that the police officer’s inventorying of the pickup’s contents did NOT excuse the need to obtain a search warrant. Inventory searches, unlike other searches, are not conducted to discover evidence of crime. Although a routine inventory search does not require a warrant, a police department policy should not, however, justify an unconstitutional search. The permitted extent of an inventory search pursuant to police department policy must be restricted to effectuating the purposes that justify the exception warrant clause.

In conclusion, the Court of Appeals held the warrantless search inside of Mr. Wisdom’s black bag was not justified by either a search incident to arrest or an inventory search. The court reversed the trial court’s denial of Mr. Wisdom’s motion to suppress evidence, reversed his four convictions, and dismissed all charges filed against him.

Good opinion.

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. Howerton: Citizen 911 Call Supports Terry Stop

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terry stop | Nevada Public Radio

In State v. Howerton, the WA Court of Appeals held that a citizen informant’s 911 call was reliable enough to support a Terry stop. The citizen informant provided her name, address, and telephone number to the dispatch, included a statement that she had just witnessed the crime, objective facts that indicated criminal rather than legal activity, and an offer to speak with the police if they needed to contact her.

On September 29, 2013, at 2:00 a.m., Laura Parks called 911 from her cell phone to report that she just witnessed someone break into a van parked across the street from her house. She provided her name, address, and telephone number to the dispatcher. Parks described the suspect as a black male, average build, five feet seven inches tall, wearing a baggy black leather jacket and baggy pants. She stated he left the area on foot and was heading south on Second Avenue in Burien, Washington.

Police responded to the call and began searching the area for the subject. They contacted a man identified as Delante Howerton matching the description. Howerton was handcuffed. Police noticed a blade sticking out of Howerton’s sleeve. When searched Howerton for weapons, police officers found a foot-long bread knife and a screwdriver on Howerton’s person.

Ms. Parks confirmed that Howerton was the individual she saw break into the van earlier.

Howerton was charged with attempted Theft of a Motor Vehicle, Making or Possessing Vehicle Theft Tools, and Intimidating a Public Servant. The trial court later dismissed the charge of intimidating a public servant. Howerton moved to suppress evidence obtained as a result of the investigatory detention. Specifically, Howerton argued Hutchinson lacked reasonable articulable suspicion to detain him when Hutchinson’s only source of information was from a named but unknown telephone informant. After a CrR 3.5 and CrR 3.6 hearing, the trial court denied Howerton’s motion to suppress.

A jury convicted Howerton of misdemeanor second degree attempted taking of a motor vehicle without permission and making or having vehicle theft tools. He appealed.

The Court of Appeals upheld Howerton’s conviction and ruled his stop/arrest was lawful under Terry v. Ohio. They reasoned that an investigatory Terry stop is permissible if he investigating officer has a reasonable and articulable suspicion that the individual is involved in criminal activity. A reasonable suspicion is the substantial possibility that criminal conduct has occurred or is about to occur. A reasonable suspicion can arise from information that is less reliable than that required to establish probable cause.

The Court further reasoned that an informant’s tip can provide police with reasonable suspicion to justify an investigatory Terry stop if the tip possesses sufficient “‘indicia of reliability.'” Courts employ the totality of the circumstances test to determine whether an informant’s tip possessed sufficient indicia of reliability to support reasonable suspicion.

When deciding whether this indicia of reliability exists, the courts will generally consider several factors, primarily “(1) whether the informant is reliable, (2) whether the information was obtained in a reliable fashion, and (3) whether the officers can corroborate any details of the informant’s tip.” Known citizen informants are presumptively reliable.

Here, the Court further reasoned that Parks’s 911 call demonstrated a sufficient factual basis to provide reasonable suspicion for the seizure:

Here, Parks unequivocally indicated to the 911 dispatcher that she was an eyewitness. When she called 911, she told the dispatcher, “I just saw a robbery.” She provided her full name, her address, and her telephone number. She indicated that she was willing to speak with police if they needed to contact her. She told the dispatcher the incident occurred “directly across the street” from her house and that it “just now happened.” She stated that an individual “broke into a car.” She said she actually saw him enter the car.

She gave a detailed description of the suspect—black male, average build, short hair, five feet seven inches tall, wearing a baggy black leather jacket and baggy pants. The dispatcher immediately broadcast this description via radio to officers. Parks stated that the suspect just left the scene heading south on Second Avenue. She also accurately described the street location. Further, Parks reported objective facts that indicated criminal rather than legal activity.

The court further elaborated that Ms. Parks reinforced her factual basis for these allegations by stating that the incident “just now happened” and that the car was directly across the street from her house. Parks reported facts she personally observed. The Court decided the information was reliably obtained and that the police corroborated the information from Ms. Parks’ tip.

Consequently, the totality of the circumstances supported Howerton’s  Terry stop. The Court of Appeals upheld his conviction.

Please review 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. Reis: Search & Seizure in Medical Marijuana Case

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In State v. Reis, the WA Supreme Court decided that although medical marijuana use is a defense, police officers can still obtain search warrants and search people’s homes if sufficient probable cause of criminal activity exists.

In 2012, Detective Thomas Calabrese received an anonymous tip from an individual living in the Shorewood area of Burien, informing him that a man named “William” was actively growing marijuana in a house in that neighborhood. The informant, who feared retaliation by Reis, declined to provide any additional information. Detective Calabrese began investigating.

He conducted stakeout surveillance of the home and watched the defendant William Reis tending to numerous marijuana plants growing in the backyard. The detective also heard a distinct humming sound coming from the northwest side of the target home and observed black plastic covering the daylight basement window. Detective Calabrese also noticed condensation on this window.

Detective Calabrese also discovered Mr. Reis had a prior DV conviction and, during that arrest, officers discovered significant evidence of a marijuana grow operation, as well as a rifle and $18,000 cash hidden in the attic. Additional searches of Reis’s financial records in 2005 connected him to a large marijuana grow operation in California. Detective Calabrese also learned that Reis had been arrested in 2011 for possession of 1.3 grams of marijuana.

Based on this information, Detective Calabrese put all of this information in an affidavit of probable cause to support a search warrant of Reis’s home. Judge Eide granted a search warrant, finding probable cause to believe that Reis was violating Washington’s Uniform Controlled Substances Act, RCW 69.50. A search of Reis’s home pursuant to the search warrant revealed plants, scales, ledgers, sales receipts, and tools indicative of a marijuana grow operation. The search also revealed 37 plants and 210.72 ounces of cannabis.

Reis moved to suppress the evidence on the basis that officers lacked probable cause to search his home. The trial court denied his motion. The WA Court of Appeals granted review. They decided the authorized use of medical marijuana under RCW 69.51A.040 does not stop an officer from searching a home for criminal activity. Although compliant use of medical marijuana under the statute is an affirmative defense, it does not negate probable cause required for a search warrant. State v. Reis, 180 Wn.App. 438, 322 P.3d 1238 (2014). The WA Supreme Court  granted review and affirmed the Court of Appeals.

The WA Supremes reasoned that RCW 69.51A.040, as passed, does not decriminalize the medical use of marijuana. Instead, the plain language of the statute establishes a limited exception to the general prohibition against marijuana that existed at the time that the search warrant in this case issued. The Court summarized it best here:

The legislature may have intended to create heightened protections for qualifying patients who registered. However, because registration is currently impossible, the statute provides qualifying patients with only an affirmative defense until the legislature is able to establish a registry. Therefore, we reject Reis’s argument and affirm the Court of Appeals.

The Court describes how the “Medical Marijuana Defense” works under RCW 69.51A.040.

There are six required “terms and conditions” contained within RCW 69.51A.040. Subsection (1) places limits on the quantity of cannabis that a qualifying patient or designated provider may possess. Subsections (2) and (3) require registration with the Department of Health-now impossible in light of the governor’s veto-and require that the patient keep their registration within their home and present it to inquiring investigating officers. Subsections (4 ), (5), and (6) require that the investigating officer not possess evidence that the qualifying patient or designated provider is converting marijuana for their own use or benefit, or otherwise violating distribution requirements or registration requirements. If a qualifying patient or designated provider complies with all of these requirements, including registration, the use of marijuana does not constitute a crime.

Here, the search was valid because the plain language of the statute and the legislative intent lead to the conclusion that a user or possessor of cannabis may raise only an affirmative defense.

My opinion? Hate to say, but the reasoning makes sense. After all, assaulting people in the street is still a crime. One must prove a defense – hypothetically speaking, self-defense – by a preponderance of the evidence in order to be found not guilty of the crime of assault. The same reasoning applies here. The medical use of marijuana does not decriminalize marijuana use – it only provides a defense if one is charged with marihuana-related crimes. Police officers can still investigate citizens and apply for search warrants if probable cause exists that a crime is being committed.

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. Fuentes & Sandoz: Are Terry Stops Legal in High-Crime Areas?

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

Joyce Carol Oates revisits past in 'High Crime' tales

The WA Supreme Court consolidated two search & seizure cases with very similar facts. Both cases involve Terry stops of a defendants who entered a high-crime areas and visited homes occupied by suspected drug dealers.

TERRY STOPS

 Generally, under the Fourth Amendment to the United States Constitution and article I, section 7 of Washington’s constitution, an officer may not seize a person without a warrant. However, exceptions exist. A Terry investigative stop is one of the exceptions.

For those who don’t know, a “Terry stop” is a brief detention of a person by police on reasonable suspicion of involvement in criminal activity but short of probable cause to arrest. Picture an officer walking up to you and asking for your I.D. The name derives from Terry v. Ohio, 392 U.S. 1 (1968), in which the U.S. Supreme Court held that police may briefly detain a person who they reasonably suspect is involved in criminal activity. Also, police may conduct a limited search of the suspect’s outer garments for weapons if they have a reasonable and articulable suspicion that the person detained may be “armed and dangerous”. When a search for weapons is authorized, the procedure is known as a “stop and frisk.”

To have reasonable suspicion that would justify a stop, police must be able to point to “specific and articulable facts” that would indicate to a reasonable person that a crime has been, is being, or is about to be committed. Reasonable suspicion depends on the “totality of the circumstances”, and can result from a combination of facts, each of which is by itself innocuous.

State v. Fuentes

In this case, police officers were conducting a stakeout of a known drug house. They saw Marisa Fuentes park her car across the street from the apartment. She walked up to the apartment, entered, stayed for about five minutes, and returned to her car. She opened the trunk of her car and removed a small plastic bag. The bag contained something about the size of a small football. Then Fuentes reentered the apartment, stayed for about five minutes, and returned to her car with a bag that had noticeably less content than when she entered the apartment.

Based on what officers observed, police stopped Fuentes’ car on suspicion of narcotics activity. An officer advised Fuentes that he needed to talk with her. For safety reasons, the officer requested that Fuentes come to the police vehicle, which she did. The officer read Fuentes her Miranda rights. Fuentas waived those rights and admitted she delivered marijuana to Fenton’s apartment.

The State charged Fuentes with Delivery of Marijuana. Fuentes moved to suppress evidence uncovered from the investigative stop of her car, including her statement about delivering marijuana, arguing that the police lacked reasonable suspicion to justify the Terry stop of her vehicle. The trial court concluded that officers had reasonable   suspicion to stop the vehicle and therefore denied the motion to suppress. Fuentes was subsequently convicted of delivery of marijuana at a stipulated facts trial. She appealed.

The WA Supreme Court decided the police had reasonable suspicion of criminal activity particularized to Fuentes before the stop occurred.

The officers in this case. They knew about past drug activity at Fenton’s apartment. Police made controlled buys from Fenton and conducted a search of the apartment 11 months before and found drugs. The officers also testified they had recent information from individuals arrested on drug-related charges that Fenton was still dealing drugs. Additionally, officers observed foot traffic that morning (10 visits between 10 p.m. and midnight) that suggested ongoing drug transactions.

Additionally, officers could reasonably infer that Fuentes participated in the ongoing drug transactions: Fuentes entered the apartment briefly, then returned to her car. She then carried a plastic bag into the apartment, and she left with a bag that had noticeably less content. Her stay lasted approximately five minutes. From these observations, officers could form a reasonable suspicion that Fuentes made a delivery at the apartment.

The WA Supremes affirmed the Court of Appeals in Fuentes because, under the totality of circumstances, the officers had individualized reasonable suspicion of criminal activity.

State v. Sandoz

In this case, around 11:30 p.m., Officer Chris Pryzgocld drove his patrol car past a six-unit apartment building in SeaTac. A high number of documented criminal incidents occurred in the area of this apartment building, including drug-related activity.

He saw a white vehicle parked illegally. The driver of the Jeep slumped down, as if to hide from the officer’s view, as the officer drove by. The officer parked his marked patrol car about 20 yards away. After waiting, he made contact with the slumped-over driver.

The officer observed Steven Sandoz leaving the apartment. The officer asked Sandoz what was going on. Sandoz replied that his friend gave him a ride to collect $20 from a friend. After more conversation, Sandoz admitted that he had a drug problem and said that he had a crack pipe in his pocket. Sandoz took out the pipe, and the officer arrested Sandoz for possession of drug paraphernalia. During a search incident to arrest, the officer felt something in Sandoz’s groin area. The officer read Sandoz his Miranda rights, and Sandoz admitted that he had two small envelopes of cocaine in his underwear.

Sandoz was arrested and charged with Possession of Cocaine. Although he tried suppressing the evidence at pretrial, the Judge denied the motion for the following reasons: (1) the officer knew the area had extremely high drug activity based on 911 calls and drug dealing investigations, (2) the officer knew that the apartment Sandoz exited belonged to Ms. Meadows, who had numerous drug-related convictions, including possession with intent to deliver, (3) the officer had express authority from the complex owner to trespass nonoccupants for “loitering” at the complex, (4) the Jeep did not belong to any of the tenants at the complex, (5) the driver of the Jeep slouched down when the officer drove past, (6) the driver and Sandoz had conflicting stories for why they were in the area, (7) Sandoz looked surprised when he saw the officer, and (8) Sandoz visibly shook and looked pale when the officer talked to him.

Sandoz was found guilty at a bench trial he appealed. The WA Supreme Court granted certiorari.

Under the totality of the circumstances, the WA Supreme Court ruled that the officer did not have reasonable suspicion of criminal activity individualized to Sandoz to justify his Terry stop. First, Sandoz’s surprise at seeing the officer did not suggest criminal behavior. Next, the driver’s story did not conflict with Sandoz’s story. The driver said that his friend called him for a ride, and Sandoz said his friend gave him a ride to the apartment to collect $20. Rather than conflict, the stories confirmed one another.

Furthermore, as to Sandoz’s physical appearance, the officer did not attribute Sandoz’s pallor or shaking to drugs or to any illicit conduct. Thus, this fact does not add to circumstances that suggest criminal activity. The fact that the officer did not recognize the Jeep might justify the officer’s contact with the driver, but the oflicer did not connect this fact with anything the officer observed about Sandoz.

Additionally, Sandoz did not loiter or trespass. “Loiter” means “to remain in or near a place in an idle or apparently idle manner.” Sandoz did not remain idle: he left the apartment and walked immediately to the Jeep without stopping. Although the individuals in the Jeep may have loitered, that issue is not before the court. Similarly, Sandoz did not appear to trespass: he entered a tenant’s apartment, stayed inside at least 15 minutes without any known discord, and left directly to the Jeep. The facts suggest that Sandoz was an invited guest of Ms. Meadows, and as the officer stated, simply going into an apartment does not equal wrongdoing.

Finally, the Court reasoned that although Sandoz was visiting the apartment of a suspected drug dealer late at night in a high-crime area, this fact by itself does not justify a Terry stop. Other facts must exist to suggest criminal behavior. An officer’s hunch does not justify a stop. The totality of the circumstances in this case do not justify a Terry stop.

The WA Supremes concluded officers did not have reasonable suspicion that Sandoz engaged in criminal activity and reversed the Court of Appeals decision affirming his guilt.

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.