Category Archives: Search and Seizure

State v. Weller: Community Caretaking

Assault, Community Caretaking, Constitutional Rights, Due Process, Evidence, felony, law enforcement, Plain View, police, Probable Cause, Search and Seizure, Search Warrant, Violent Crime, Washington Court of Appeals, , ,

Community Caretaking: Police May Make Stop Without Reasonable Suspicion

In State v. Weller, the WA Court of Appeals decided an officers’ entry into a garage to privately interview children about their allegations of abuse was lawful under the health and safety check community caretaking exception to the warrant requirement. Also, the seizure of the board the children stated was used by the parents while beating the children, was lawful under the plain view exception to the warrant requirement.

Sandra and Jeffrey Weller had six children in their care. In 2011, CPS became suspicious that the Wellers were abusing the children. Eventually, CPS conducted a welfare check of the family home with the assistance of numerous police officers. The officers did not have a search warrant. Officer Aldridge asked if they could come inside and speak with Sandra and the children.

Sandra stepped back from the door and the officers entered the house. The officers attempted to talk privately with the twins. Officer Jensen and CW talked in one room. Officer Aldridge and CG talked in another room, and ultimately moved into the garage for greater privacy. Both children described being beaten repeatedly with a board.

Officer Aldridge was standing in the same place as when she entered the garage when she looked around and saw a board leaning against the garage wall in plain view. She asked the children if that was the board used to beat them, and they replied that it was. Officers saw what appeared to be bloodstains on the board. Based on her observations, Officer Aldridge decided to remove the twins and the other children from the Weller residence.

After speaking with the children, the State filed multiple charges against the Wellers, including several charges of second, third, and fourth degree assault, and several counts of unlawful imprisonment. At trial, the Wellers tried to suppress the evidence and dismiss the case on theories

The Wellers moved to suppress the board, arguing that it was seized during an unlawful search of their residence without a warrant. They argued that the emergency aid exception to the warrant requirement was inapplicable because there was no immediate threat of injury to any persons and that entry into the house was a pretext for a search for evidence of a crime.

However, the trial court denied the motion to suppress, concluding in a detailed oral ruling that the officers lawfully were in the garage under the community caretaking exception and that they were authorized to seize the board because it was in plain view.

The case proceeded to a jury trial. The jury found Jeffrey guilty on most counts and the trial court sentenced him for five counts of Assault Second Degree, one count of Unlawful Imprisonment, one count of Assault Third Degree of a Child, and two counts of Assault Fourth Degree. The jury also found Sandra guilty on most counts and the trial court sentenced her for four counts of Assault Second Degree and one count of Unlawful Imprisonment. The defendants appealed.

The Wellers argue that the officers seized the board used to beat CW and CG in an unlawful warrantless search of their garage, and therefore that the trial court erred in denying their CrR 3. 6 motion to suppress the board. The Court disagreed, and held that the trial court did not err when it concluded that ( 1) the officers’ entry into the garage to privately interview the children was lawful under the community caretaking function exception to the warrant requirement, and (2) the seizure of the board was lawful under the plain view exception to the warrant requirement. Some background on these legal principles is necessary.

WARRANTLESS SEARCHES

Both the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington State Constitution prohibit warrantless searches and seizures unless one of the narrow exceptions to the warrant requirement applies. The State bears the burden of demonstrating that a warrantless search or seizure falls within an exception to the warrant requirement.

 COMMUNITY CARETAKING

The community caretaking function exception to the warrant requirement arises from law enforcement officers’ community caretaking function and involves two aspects: officers rendering aid or assistance ( emergency aid exception) or making routine checks on health and safety (health and safety exception). Another exception to the warrant requirement is the plain view exception, which allows officers to seize an object if they are lawfully present in a constitutionally protected area and the object is in plain view.

A search pursuant to the community caretaking function exception must be totally divorced from  a criminal investigation. The exception does not apply where an officer’ s primary motivation is to search for evidence or make an arrest.

Here, the Court reasoned that the officers entered the garage because they were trying to find a private place to interview the children in conjunction with their welfare check. Nothing in the record suggests that the officers were searching the garage or looking for evidence.

HEALTH AND SAFETY CHECK INSPECTION

To invoke the health and safety check exception, the State must show that ( 1) the officer subjectively believed someone needed health or safety assistance, and (2) a reasonable person in the same situation would believe that there was a need for assistance, and ( 3) there was a reasonable basis to associate the need for assistance with the place searched. Next, the State must show that the encounter under this exception was reasonable, which depends upon a balancing of the individual’ s interest in freedom from police interference against the public’ s interest in having the police perform a community caretaking function.

Here, the Court reasoned that the three requirements for application of the health and safety check exception clearly were satisfied. The officers subjectively and reasonably believed that the Weller children needed health or safety assistance. A trained CPS investigator relayed to the officers her professional opinion that the Weller children were not safe and were expressing severe fear.

PLAIN VIEW

The ” plain view” exception to the warrant requirement applies when officers ( 1) have a valid justification for being in a constitutionally protected area, and ( 2) are immediately able to realize that an item they can see in plain view is associated with criminal activity. The test for determining when an item is immediately apparent for purposes of a plain view seizure is whether, considering the surrounding circumstances, the police can reasonably conclude that the item is incriminating evidence. Officers do not need to be certain that the item is associated with criminal activity – probable cause is sufficient.

Here, the Court decided the officers were lawfully present in the Wellers’ garage. Further, the surrounding facts and circumstances led the officers to believe that the board was evidence of a crime. As the welfare check progressed, the children said Mr. Weller periodically beat them with a board. Further, when the officers were in the garage, the children began to look for the board. And the children immediately confirmed that the board in the garage was in fact the board used to beat them. As a result, the Court held that the plain view exception to the warrant requirement applied to the officers’ seizure of the board.

The Court of Appeals upheld the 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. Rubio: “Exigent Circumstances” Found in Arrest for Possession of Methamphetamine.

Constitutional Rights, Drug Offenses, Due Process, Evidence, Exigent Circumstances, felony, law enforcement, Methamphetamine, police, Search and Seizure, Search Warrant, Washington Court of Appeals, , ,

EXIGENT CIRCUMSTANCES | Austin Criminal Defense Lawyer

In State v. Rubio, the WA Court of Appeals Division III upheld the defendant’s conviction for Possession of Methamphetamine because exigent circumstances existed to seize and search the defendant after it was discovered he had open warrants for his arrest and possibly witnessed a domestic violence incident.

Officers from the Spokane police department responded to a domestic disturbance call and found Ricardo J. Rubio inside the apartment at the reported address. Police ran a check on Mr. Rubio and discovered three outstanding warrants for his arrest. He was subsequently arrested and booked into jail. While being booked, police discovered methamphetamine in Mr. Rubio’s sock. He was convicted of possession of a controlled substance. The judge denied Rubio’s pretrial motion to suppress the evidence. He was later convicted at a bench trial.

Rubio appealed on the argument that he was unlawfully seized because he was merely witnessed the reported DV disturbance. The Court of Appeals, however, disagreed. They reasoned the seizure was lawful under the exigent circumstances exception to the warrant requirement.

Some background is necessary. Generally, warrantless searches are unreasonable per se under the Fourth Amendment to the United States Constitution. However, courts recognize a few carefully drawn exceptions to this rule. The State carries the burden of proving that a warrantless seizure falls into one of these exceptions. A recognized exception to the warrant requirement allows police to seize and search a person without a warrant when justified by “exigent circumstances.”

EXIGENT CIRCUMSTANCES

An officer is allowed to stop a witness under exigent circumstances when (1) the officer has reasonable cause to believe that a misdemeanor or felony involving danger or forcible injury to persons has just been committed near the place where he finds such person, (2) the officer has reasonable cause to believe that such person has knowledge of material aid in the investigation of such crime, and (3) such action is reasonably necessary to obtain or verify the identification of such person, or to obtain an account of such crime. The rationale behind the exigent circumstances exception is to permit a warrantless search where the circumstances are such that obtaining a warrant would compromise officer safety, facilitate escape or permit the destruction of evidence.

Here, the court reasoned Mr. Rubio was lawfully seized even though the officer had no search warrant. The officer’s detention of Mr. Rubio was reasonable due to exigent circumstances because it was imperative that the officer quickly locate the injured woman and her assailant.

The court also reasoned the seizure under exigent circumstances was lawful for three reasons. First, the police officer had reason to believe that a crime was just committed at the address involving injury to a person. Second, the officer had reason to believe that each person who was in the apartment, including Mr. Rubio, had knowledge which would aid in the investigation of the crime. Third, the officer’s request for Mr. Rubio’s identification was necessary to determine the true identity of Mr. Rubio. Running the warrant check was needed to verify that Mr. Rubio was the person he claimed to be. Consequently, Officer Kirby’s seizure of Mr. Rubio was lawful under the exigent circumstances exception to the warrant requirement.

My opinion? This is a difficult case to swallow. Sure, Mr. Rubio had warrants for his arrest. And yes, the police can lawfully arrest and incarcerate people for that reason alone. And yes, the authorities regularly find illegal contraband during inventory searches and/or when defendants are booked into jail on warrants.

Still, it’s difficult to accept the notion that citizens can become criminal defendants by merely being at the wrong place at the wrong time; and that merely witnessing an alleged incident can lead one to be seized, searched and charged for a totally different crime than the one police responded to in the first place. Interesting.

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. Witherrite: Ferrier Warnings Do Not Apply to Car Searches

Constitutional Rights, Drug Offenses, Due Process, Evidence, felony, Knock & Talk, law enforcement, police, Privacy, Probable Cause, Search and Seizure, Search Warrant, Terry Stop, Washington Court of Appeals, , ,

Unreasonable Search and Seizure - Passengers, Tire Chalking, Warrantless Searches

Interesting. In State v. Witherrite, the Court of Appeals decided that law enforcement officers need not give Ferrier warnings for car searches because an automobile should not be treated in the same manner as a home.

A deputy sheriff stopped Ms. Witherrite for a traffic violation and had her perform field sobriety tests. The deputy then received permission to search Ms. Witherrite’s car after advising her that at any time she could stop or limit the scope of the search. The deputy did not tell her that she had the right to refuse consent.

The vehicle search turned up marijuana, methamphetamine, and drug paraphernalia. The prosecutor ultimately charged Drug Offenses for each of those items. She moved to suppress the evidence, arguing that her consent was invalid due to the absence of the warnings required by State v. Ferrier, 136 Wn.2d 103,960 P.2d 927 (1998). The trial court disagreed, concluding that Ferrier did not extend to vehicles and that Ms. Witherrite had consented to the search. The court found her guilty as charged. Ms. Witherrite timely appealed.

The issuel presented on appeal was whether the Court would extend Ferrier warnings to vehicle searches.

Some background on Ferrier is necessary. In Ferrier, the Washington Supreme Court faced a situation where officers wanted to get inside a house to see if they could smell growing marijuana which they suspected was present on the basis of an unsupported tip. The officers did not tell the occupant that she had the ability to refuse consent. After being invited into the home, the officers asked for consent to search the residence. A detective explained that this “knock and talk” procedure was used in order to avoid seeking a search warrant. The defendant consented to the search and was convicted of the charges.

The Washington Supreme Court reversed the conviction, ruling that because the woman had a heightened right of privacy in her home. Under article I, section 7 of the WA Constitution, officers could not enter a home to seek voluntary consent to search the dwelling without first informing her that she did not need to consent to the entry. The court’s analysis repeatedly emphasized the heightened protection given the home under our constitution. The court then adopted the following rule:

When police officers conduct a knock and talk for the purpose of obtaining consent to search a home, and thereby avoid the necessity of obtaining a warrant, they must, prior to entering the home, inform the person from whom consent is sought that he or she may lawfully refuse to consent to the search and that they can revoke, at any time, the consent that they give, and can limit the scope of the consent to certain areas of the home.

Despite the above rule, the WA Court of Appeals in this case decided Ferrier warnings are NOT applicable outside of the home because the Washington Supreme Court has long distinguished houses from vehicles in the search and seizure context.

One particularly instructive case the court examined was State v. Vrieling, 144 Wn.2d 489,28 P.3d 762 (2000). There, a deputy sheriff stopped a motor home and arrested the driver, Ms. Vrieling. A search of the motor home was conducted incident to the arrest. The question before the court was whether the then-existing vehicle search doctrine applied to the search of the motor home, which is essentially a house-like vehicle. The court ultimately concluded that when a motor home is used as a vehicle, the vehicle search doctrine applied and apparently, Ferrier warnings do not.

The treatment of the home as most deserving of heightened protection under the WA constitution led the court to conclude that Ferrier warnings need not be given prior to obtaining consent to search a vehicle.

My opinion? Sad as it seems, this opinion makes sense. There certainly are differences between a car and a home. Simply put, homes have more privacy protections than cars.

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. Jardinez: Parole Officer Conducts Overbroad Search of Defendant’s iPod

Constitutional Rights, Department of Corrections, Evidence, Exigent Circumstances, felony, Firearm, Privacy, Probable Cause, Probation, Search and Seizure, Search Warrant, Washington Court of Appeals, , ,

How to distinguish a 5.5th generation 'Enhanced' iPod - Macintosh How To

Good decision.

In State v. Jardinez, the Court of Appeals held that a community corrections officer’s (CCO) review of video on a parolee’s iPod Nano violated the parolee’s constitutional rights because the CCO did not have a reasonable suspicion based on articulated facts that the iPod Nano contained evidence of past, present or future criminal conduct or violations of the parolee’s conditions of release.

The defendant Felipe Jardinez was an parole for Drive-By Shooting and Unlawful Possession of a Firearm Second Degree. He served prison time followed by 18 months of community supervision. The conditions of community custody included requirements to report to his CCO, refrain from possessing controlled substances and refrain from possessing firearms.

On November 3,2011, Felipe lardinez missed a scheduled meeting with his CCO. The CCO called Jardinez. The two scheduled to meet the next day. During the appointment, Martinez asked Jardinez to submit to a urinalysis test. Jardinez admitted that the test would show marijuana use.

The CCO instructed Jardinez to empty his pockets. Jardinez placed an iPod Nano onto a desk. The CCO was interested in the iPod because parolees occasionally take pictures of themselves with other gang members or “doing something they shouldn’t be doing.” When the CCO handled the iPod, Jardinez appeared nervous. Nevertheless, the CCO lacked facts that the iPod video player would show evidence of a crime or violation of the conditions of the defendant’s community custody.

The CCO accessed the iPod. He found a video recorded earlier that morning. The CCO played the video. It showed  Jardinez pumping a shotgun in his bedroom. Jardinez was arrested. Police searched his home and found the shotgun seen in Jardinez’s iPod video.

Jardinez was charged with Unlawful Possession of a Firearm First Degree. Jardinez moved to suppress the evidence obtained through the CCO’s search of his iPod, and all evidence seized as a result of law enforcement officers searching his home as the spoiled fruit of the unlawful viewing of the video on his iPod.

The trial court granted Felipe Jardinez’s motion to suppress. The court concluded that a warrantless search of the iPod would be justified only if the CCO had a reasonable suspicion based on articulated facts that the device contained evidence of past, present or future criminal conduct or violations of the defendant’s conditions of community custody. The case went up on appeal.

At issue was whether the CCO had legal authority to search the content of Jardinez’s iPod when the CCO did not expect the search to yield evidence related to either of the known parole violations, Jardinez’s failure to appear, or his marijuana use.

The Court of Appeals reasoned that unless an exception is present, a warrantless search is impermissible under both article I, section 7 of the Washington Constitution and the Fourth Amendment to the U.S. Constitution. A trial court may suppress evidence seized from an illegal search under the Exclusionary Rule or the Fruit of the Poisonous Tree Doctrine.

The Court further reasoned that Washington law recognizes that probationers and parolees have a diminished right of privacy that permits a warrantless search based on probable cause. Parolees and probationers have diminished privacy rights because they are persons whom a court has sentenced to confinement but who are serving their time outside the prison walls. Therefore, the State may supervise and scrutinize a probationer or parolee closely.  Nevertheless, this diminished expectation of privacy is constitutionally permissible only to the extent necessitated by the legitimate demands of the operation of the parole process.

RCW 9.94A.631 provides exceptions to the warrant requirement. RCW 9.94A.631(1) reads:

If an offender violates any condition or requirement of a sentence, a community corrections officer may arrest or cause the arrest of the offender without a warrant, pending a determination by the court or by the department. If there is reasonable cause to believe that an offender has violated a condition or requirement of the sentence, a community corrections officer may require an offender to submit to a search and seizure of the offender’s person, residence, automobile, or other personal property.

Also, the Court based its decision principally upon the Sentencing Guidelines Commission’s comment about RCW 9.94A.631(1). The Commission wrote as its official comment behind the statute:

The Commission intends that Community Corrections Officers exercise their arrest powers sparingly, with due consideration for the seriousness of the violation alleged and the impact of confinement on jail population. Violations may be charged by the Community Corrections Officer upon notice of violation and summons, without arrest. The search and seizure authorized by this section should relate to the violation which the Community Corrections Officer believes to have occurred.

Based on the court’s reading of the statute and its counterpart comment, it found RCW 9.94A.631 did not authorize the CCO’s warrantless search of the contents of Jardinez’s iPod. It affirmed the trial court’s suppression of the evidence of Felipe Jardinez’s unlawful possession of a firearm.

My opinion? Good decision. I’ve posted similar blogs stating that CCO’s and probation officers exercise too much power over defendants. This certainly is one of those cases.

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.

Washington State Patrol Upgrades its DUI Breath-Test Machines

Blood Test, Department of Licensing, Drug Offenses, DUI, Ignition Interlock Device, law enforcement, marijuana, misdemeanor, Search and Seizure, Terry Stop, Washington State Patrol, , ,

Measurement of the ethanol level with the Alcotest 9510 (Dräger,... | Download Scientific Diagram

The Washington State Patrol is replacing its old breath-test machines (BAC Machines) with sleek, fast, new $9,500 devices that are used to test drivers arrested on suspicion of driving under the influence of alcohol.

While both BAC machines can measure the alcohol in a person’s system by analyzing a breath sample, the much smaller and sleeker replacement features a touch screen and Microsoft Windows software and can process information faster.

The State Patrol will place 83 of the new Dräger Alcotest 9510 machines in police and sheriff’s stations, jails and State Patrol divisions in northeast and southeast Washington before enough are available to use statewide. The machines will be used to test drivers arrested on suspicion of driving under the influence of alcohol.

Whatcom County, Skagit County, Island County and San Juan County’s present BAC machines shall be replaced by the newer models.

Like the old devices, the new one measures alcohol in the lungs by analyzing exhaled breath. However, the new machines utilize a dry gas standard instead of a liquid solution to verify that the instrument is working properly. For years, liquid solutions have had to be mixed locally by scientists, monitored for temperature, and checked regularly by technicians. The Dräger’s dry gas contains a known concentration of alcohol, allowing the instrument to verify that a suspect’s breath alcohol is being measured accurately and reliably, the State Patrol says.

Only troopers, sheriff’s deputies and police officers certified in the Alcotest will be allowed to use the machines.

My opinion? Competent defense attorneys should investigate whether the police officers who arrest our clients for DUI and later operate these machines on our clients are, in fact, certified to operate these machines. If they’re not, then perhaps the BAC result can be suppressed.

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

WA Attorney General Says Police Do NOT Need Consent to Record Citizen Activities With Body Cameras

Bellingham, Body camera, Evidence, felony, law enforcement, police, Privacy, Search and Seizure, , ,

Axon rolls out police body cameras with live-streaming capability - GeekWire

Bad decision.

Conversations between law enforcement and members of the public may be recorded on police body cameras without citizen consent, according to an opinion issued today by Washington State Attorney General’s Office. Here’s the opinion is linked below, as well as news articles describing the recent decision:

The AG’s opinion said conversations between law enforcement and the public are generally considered public, even if they take place inside a private residence. Washington law requires two-party consent to record private conversations, but that standard does NOT apply to public ones.

Legal precedent is less clear about an officer recording a conversation between two members of the public, since no case law addresses the subject directly. But the AGO said the Washington State Supreme Court has “strongly indicated” conversations between two people are not private when they know a police officer is present.

Recently, Bellingham Police officers are being outfitted with body cameras, which would record all official interactions with citizens, even inside private residences.

The main issues of the AG’s opinion are stated below:

  1. The Washington Privacy Act, RCW 9.73, does not require the consent of a law enforcement officer to use body cameras attached to police uniforms. A local collective bargaining agreement, however, might limit or prohibit such use.
  2. Conversations between law enforcement officers and members of the public are not generally considered private for purposes of the Privacy Act.
  3. As a general matter, the Privacy Act does not require a law enforcement officer to cease recording a conversation at the request of a citizen, because such conversations are not private to begin with.
  4. In order to use a recording as evidence in a criminal or civil case, the recording would be subject to the same laws and rules governing all evidence, including the requirement that the chain of custody be established to prove no tampering has occurred. Laws relating to the retention and disclosure of public records, including records retention schedules, would govern retention and disclosure of recordings.
  5. RCW 9.73.090 does not limit the use of body cameras to the use of such cameras in conjunction with vehicle-mounted cameras.   

My opinion? I was on board with the body cameras until the AG’s Office basically gave police officers permission to circumvent the privacy rights of citizens. Look, the average citizen on the street does NOT assert their Constitutional right to refuse to speak to police officers. Nor does the average citizen refuse to grant an officer’s request to search the citizen’s home or car.

Police can be very persuasive in exercising their authority. So this AG opinion said conversations between law enforcement and the public are generally considered public? Even if the conversations are NOT consensual and take place inside a private residence? Bad 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.

Bellingham Police Start Using Body Cameras

Bellingham, Body camera, Evidence, law enforcement, police, Search and Seizure, , ,

Three ways police can use body cameras to build community trust | Urban Institute

Finally, a step in the right direction.

In an effort to reduce use-of-force complaints, Bellingham Police officers are now wearing Body-Worn Cameras to record audio and video of their interactions with the public. The department is among the first to use the new equipment that now allows citizens to see crimes from an officer’s perspective.

Officers are wearing two cameras — one on their chests and another mounted on collars, glasses or hats.

The Bellingham Police Department has provided officers with guidelines for when they should activate the cameras. Some include traffic stops, arrests, or situations involving aggressive suspects.

Police don’t need to ask for permission to record  if they’re in public but they will tell you if the camera is on. However, if an officer is in a private residence he or she is required to get the homeowner’s permission to record.

My opinion? Excellent decision. My hat is off to the Bellingham Police for making a pro-active decision toward this effort. I strongly believe having body cameras makes EVERYONE — both cops and citizens — behave better. even better, the cameras should provide evidence of whether police misconduct happens in some cases. Very good.

My only concern is the privacy issues. Will police will secretly turn these cameras on when searching people’s houses? And if so, can the police attempt to use the surveillance video captured by the cameras as evidence of possession of contraband/weapons? As long as police are informing citizens that conversations and searches are being recorded (and as long as the police get the citizen’s consent to search ON CAMERA) then the searches are probably not intrusive and/or violations of a citizen’s constitutional rights. We’ll see.

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. Westvang: Ferrier Warnings, Arrest Warrants & Questionable Searches of a Home.

Constitutional Rights, Drug Offenses, Evidence, Knock & Talk, law enforcement, police, Privacy, Search and Seizure, Search Warrant, Washington Court of Appeals, , ,

Consent to Search When There Are Co-occupants of a Residence — OMAG

In State v. Westvang, the WA Court of Appeals just decided that Ferrier Warnings (discussed below) are NOT necessary when police officers obtain consent to enter a home in order to execute an arrest warrant on a fugitive.

Police were searching for a fugitive named Scott Miller, who had a warrant for his arrest. Officers received a tip that Miller was at Ms. Westvang’s home. They arrived at her home. The  officers informed Ms. Westvang that they were looking for Miller. She said he was not there. Officer Sawyer asked permission to search her home and look for Miller. Although Officer Sawyer did not give full Ferrier Warnings, he informed Westvang that she did not have to consent to the search.

Westvang consented to the search and led officers through her living room, kitchen and bedroom. They did not find Miller. However, after returning to the living room, the officers saw a desk upon which were substances recognized as meth and marijuana, as well as small plastic baggies; a digital scale with a white crystalline substance, and $105 in U.S. currency.

Ms. Westvang was arrested for Possession of a Controlled Substance With Intent To Deliver. Although Westvang’s attorney argued a pretrial motion to suppress the evidence because the officers failed to provide Ferrier warnings, the judge denied her motion. At trial, Westvang was convicted. She appealed.

Some background is necessary. In State v. Ferrier, the WA Supreme Court announced a rule to protect occupants who may not be aware of the right to refuse consent to a search or to limit its scope and duration. The court stated the following:

“When police officers conduct a “knock and talk” for the purposes of obtaining consent to search a home, and thereby avoid the necessity of obtaining a warrant, they must, prior to entering the home, inform the person from whom consent is sought that he or she maylawfully refuse to consent to the search and that they can revoke, at any time, the consent that they give, and can limit the scope of the consent to certain areas of the home. The failure to provide these warnings, prior to entering the home, vitiates any consent given thereafter.”

Importantly, and after Ferrier was decided, the WA Supreme Court has since ruled under State v. Ruem that Ferrier warnings are not required when law enforcement officers seek consent to enter a home and execute an arrest warrant. Instead, Ferrier warnings are required only when law enforcement officers are conducting a “knock and talk”: entering the home without a search warrant to search for contraband or evidence of a crime.

Here, the officers were not required to give Ms. Westvang any Ferrier warnings because they were not requesting entry to her home to search for contraband or evidence of a crime pursuant to a “knock and talk.” The officers observed Westvang’s consent to enter her home to execute and arrest warrant. Therefore, no Ferrier warnings were required. Based on this reasoning, the WA Court of Appeals affirmed Westvang’s conviction.

My opinion? Cases like this are never easy. Consent walks hand-in-hand with duress. It’s very difficult for the average citizen to say “No” to law enforcement. Instinctively, we believe that refusing to cooperate with an officers request to search will only hinder their duties and bring harsher consequences for failing to cooperate. In these cases, and as soon as possible, it’s always wise to respectfully deny their questions and contact an attorney regarding your legal rights.

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. Pinson: When Prosecutors Violate a Defendant’s 5th Amendment Right

Assault, Bellingham Defense Attorney, Constitutional Rights, Domestic Violence, felony, Jail, Mount Vernon Criminal Defense Attorney, Prosecutorial Misconduct, Search and Seizure, Self-Incrimination, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Forcing iPhone unlock violates Fifth Amendment, says Court of Appeals – Naked Security

In State v. Pinson, the WA Court of Appeals held that a Prosecutor violated a defendant’s 5th Amendment rights against self-incrimination by arguing that the defendant was guilty because he chose to not talk to police when arrested.

Mason County Sheriff Deputy Nault responded to a reported domestic violence call. He contacted Stacey Campbell, who was in a parking lot across the street from her home. She said the defendant Jarad Pinson, her boyfriend, violently assaulted her. Deputy Nault saw red marks on her neck. Deputy Nault went into the home and arrested Mr. Pinson. During the arrest, Mr. Pinson was cooperative. He said he was drinking with his friends. When asked by officers if the situation became violent with Ms. Campbell, however, Mr. Pinson did not respond. he was arrested for Assault Second Degree Domestic Violence.

At trial, the judge granted the defense attorney’s motion in limine to suppress the Prosecutor from asking whether the fight was physical. However, defense counsel asked that question during cross-examination. Because of this, the judge ruled that Pinson’s defense attorney “opened the door” and gave the Prosecutor opportunity to cross examine the defendant on whether the fight was physical.

In closing argument, the Prosecutor said Mr. Pinson’s silence during arrest was substantive evidence of guilt. Although Ms. Campbell recanted her earlier accusations of assault while testifying on the witness stand, the jury nevertheless returned a guilty verdict on the Assault Second Degree charges. The case went up on appeal.

The law on prosecutorial misconduct is straightforward. To prevail on a claim of prosecutorial misconduct, a defendant must show that “in the context of the records and the circumstances of trial, the prosecutor’s conduct was both improper and prejudicial. However, when the defendant fails to object to the challenged portions of the prosecutor’s argument, he is deemed to have waived any error unless the prosecutor’s conduct was so flagrant and ill intentioned that an instruction could not “cure” the resulting prejudice to the defendant.

The 5th Amendment in the U.S Constitution states, “no person . . . shall be compelled in any criminal case to be a witness against himself.” Similarly, Article I, section 9 of the WA State Constitution follows this language. Both Constitutions guarantee a defendant the right to be free from self-incrimination, including the right silence. A defendant has the right to remain silent both prearrest and post-arrest; i.e., both before and after a defendant is given Miranda warnings.

 Here, the Court of Appeals held that the Prosecutor’s statement was improper because in violated Mr. Pinson’s 5th Amendment right against self-incrimination. More specifically, it was improper for the State to make closing arguments that infer guilt from the defendant’s silence. Even though defense counsel did not object, his failure to object did not waive the claim of prosecutorial misconduct because the conduct was so flagrant and ill-intentioned that an instruction would not have cured the prejudice.

The case was reversed and remanded for a new trial.

My opinion? Great decision. It’s a long-standing, basic principle that Prosecutors cannot infer a defendant’s silence as evidence of guilt. I’m pleased the Court acknowledged this basic principle.

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. Foster: When Detainments for “Officer Safety” Violate People’s Rights.

Burglary, Constitutional Rights, Drug Offenses, felony, law enforcement, police, Search and Seizure, Washington Court of Appeals, Washington State Patrol, , ,

Police Officers Showing A Safety First Message Board Royalty Free Cliparts, Vectors, And Stock Illustration. Image 64115849.

In State v. Foster, the WA Court of Appeals held that a police officer cannot seize someone for “officer safety” reasons and keep them handcuffed indefinitely. Here, the police officer’s decision to keep the defendant handcuffed indefinitely instead of checking for weapons turned an otherwise lawful seizure into an unlawful one.

The facts were such that defendant Samuel Foster was accused of Burglary; more specifically, stealing a tent from the home of the alleged victim. In an effort to gain more information about the stolen tent, Officer Anderson made contact with Mr. Foster. The officer became concerned for her safety because Mr. Foster refused to take his hand out of his pocket.

Officer Anderson grabbed Mr. Foster’s hand and placed him in handcuffs as a safety precaution. Sergeant Renschler happened upon the scene. He questioned Mr. Foster – who was still in handcuffs – about drugs. Sergeant Renschler searched Mr. Foster and found a small bag of meth inside a cigaratte container in Mr. Foster’s pocket. Naturally, Mr. Foster was charged with Unlawful Possession of Meth.

At trial, the judge denied Mr. Foster’s Motion to Suppress based on an unlawful search and seizure. In short, Mr. Foster argued the seizure under Terry v. Ohio was unlawful because the officer exceeded what was supposed to be a brief seizure for officer safety. The judge found Mr. Foster guilty of Possession of Meth. The case went up on appeal to Division III of the WA Court of Appeals.

The Court of Appeals reasoned that police can conduct a Terry investigative stop if they don’t have a warrant. A Terry stop allows officers to briefly seize a person in specific and articulable facts, in light of the officer’s training and experience, if the facts give rise to a reasonable suspicion that the person was engaged in unlawful activity. In evaluating the lawfulness of a Terry stop, the court must inquire whether the temporary seizure was justified at its inception, and whether the stop was reasonably related in scope to the circumstances which justified the initial interference.

Here, the basis for the stop was insufficient. Simply because a person is in a high crime area does not establish a reasonable, articulable suspicion that the person is engaging in criminal activity. Also, the simple fact that Mr. Foster had his hand in his pocket when approached by Officer Anderson does not support a reasonable, articulable suspicion that Mr. Foster was engaged in criminal activity. Consequently, the Court of Appeals ruled the seizure of Mr. Foster under these circumstances was not a valid Terry stop.

The court reasoned that the true nature of the stop was for officer safety. Still, however, Officer Anderson did NOT frisk Mr. Foster for weapons. The court said, ” . . . because the only legal basis to seize Mr. Foster was for officer safety, we are constrained to hold that the officer’s decision to forego frisking Mr. Foster amounts to continued detainment without a legal basis.”

The court concluded that Mr. Foster’s consent to search was obtained by exploitations of his prior illegal seizure, and as a result, the evidence obtained as a result of his consent to search must be suppressed.

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.