Category Archives: Search and Seizure

State v. Erickson: Probation Officers Have Too Much Power

Assault, Bench Warrant, Constitutional Rights, Drug Offenses, law enforcement, misdemeanor, police, Privacy, Probable Cause, Probation, Search and Seizure, Search Warrant, Washington Supreme Court, , ,

NY Probation Violation Hearing Lawyer - E. Stewart Jones Hacker Murhpy

In State v. Erickson, the WA Supreme Court decided a court may issue a bench warrant without a formal finding of probable cause on the underlying allegations after the defendant fails to appear at a probation violation hearing.

Anthony Erickson received probation after he was convicted of fourth degree assault.  His probation officer alleged Erickson violated the terms of his probation.  Erickson was issued a summons ordering him to appear at a probation violation hearing.  When Erickson failed to appear, the court issued a bench warrant for his arrest.  Erickson was subsequently arrested.  A strip search at the jail revealed he possessed cocaine.

The WA Supremes reasoned that because Erickson failed to notify the court of any change of address, the judge in the lower court had a “well-founded suspicion” that Erickson had violated that condition of his release.  Consequently, the judge had authority to issue the bench warrant based on that alone.

My opinion?  It’s unbelievable that the allegations – and that’s all they are, mere allegations – of a probation officer are upheld as stone-cold truth by judges if a defendant fails to show up for a hearing.  It’s unbelievable that judges can now issue bench warrants because a defendant failed to notify their probation officer of an address change.  It’s unbelievable that defendants can be taken into custody, strip searched, and arrested because they failed to notify their probation officer of an address change.

This case highlights how unfairly the gears of the criminal justice system grind away at individual rights.  Let’s hope this gets appealed to a higher court.

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. Buelna Valdez: Search Incident to Arrest is Invalid (Tip of the Hat To Arizona V. Gant)

Constitutional Rights, Drug Offenses, Due Process, felony, law enforcement, Methamphetamine, misdemeanor, police, Privacy, Probable Cause, Search and Seizure, Search Warrant, Terry Stop, Traffic Infractions, Washington State Patrol, Washington Supreme Court, , ,

The Fourth Amendment Reasonableness Requirement - FindLaw

In State v. Buelna Valdez, the WA Supreme Court held that a search incident to arrest was invalid under the 4th Amendment.

Here, a police officer pulled over a vehicle because it had only one working headlight.  The officer ran a records search on the driver, Mr. Buelna-Valdez, and discovered there was an outstanding warrant for his arrest.  The officer handcuffed and secured the defendant in his patrol car.  Officer searched the vehicle.  He noticed loose dashboard panels.  He calls a K-9 unit.  The K-9 uncovered methamphetamine located under a moldy cup holder.  The passenger was then also arrested. Both men were charged with drug offenses.

The WA  Supremes held that the automobile search incident to arrest was unlawful.  They reasoned that because the arrestee was handcuffed and secured in the backseat of a patrol car, he no longer had access to any portion of his vehicle.  The officer’s search of the vehicle was therefore unconstitutional under both the Fourth Amendment and the WA Constitution.  The Court also embraced the U.S. Supreme Court’s Arizona v. Gant in finding factual similarities between the cases:

“Under the Fourth Amendment, the arrestee was secured and not within reaching distance of the passenger compartment at the time of the search, so neither officer safety nor preservation of evidence of the crime of arrest warranted the search.  See Gant, 129 S. Ct. at 1719.  Furthermore, the arrestee was arrested based upon an outstanding warrant; the State has not shown that it was reasonable to believe that evidence relevant to the underlying crime might be found in the vehicle.  See Gant, citing Thornton, 541 U.S. at 632 (Scalia, J., concurring).”

The Court also reasoned the search was conducted without a warrant, even though the circumstances did not prevent officers from obtaining one prior to the search:  “There was no showing that a delay to obtain a warrant would have endangered officers or resulted in evidence related to the crime of arrest being concealed or destroyed.  As such . . . the evidence collected from that search should be suppressed, and the resulting convictions reversed.”

My opinion?  Obviously, I’m happy.  The case is great law for defense attorneys.  Indeed, it goes even further than Gant. Although good, Gant was slightly problematic because it allowed police to search for evidence of the crime of arrest.   In this decision, however, the WA Supremes only allow a search if there is evidence of destruction.  Therefore, in WA, if the defendant is in the squad car, the police cannot search the defendant’s vehicle.  Beautiful.

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. Harrington: “Progressive Intrusion” = Unlawful Search

Constitutional Rights, Drug Offenses, Due Process, felony, Jury Trial, law enforcement, Methamphetamine, misdemeanor, police, Privacy, Search and Seizure, Terry Stop, Washington State Patrol, Washington Supreme Court, , ,

4 Charts That Show Stop-and-Frisk Is a Terrible Crime-Fighting Tool

In State v. Harrington, the WA Supreme Court held that the “Progressive Intrusion” of the officer during the investigations was an unlawful search.

Issue was whether the police unlawfully searched/seized the defendant prior to arrest, in violation of article I, section 7 of the Washington Constitution, requiring suppression of drugs found on his person.

In short (yes, I’m getting to the good part), the WA Supremes decided the search WAS unlawful, and amounted to a “progressive intrusion.”  Evidence suppressed, case thrown out of court.

The facts: On August 13, 2005, 11:00PM, Officer Reiber of the Richland Police was driving his police car on duty.  He noticed soon-to-be defendant, Dustin Harrington, walking down the sidewalk.  Officer Reiber made a U-turn, drove past Harrington, and pulled into a driveway.  He did not activate his lights or siren.  Officer exited his car and made contact with Harrington (this is called a “social contact”).

Officer Reiber asked questions.  Harrington answered them awkwardly and non-sensically.  Officer became nervous because Harrington kept putting his hands in his pockets.  The conversation lasted about five minutes.

State patrol Trooper William Bryan drove by the scene.  He initiated a U-turn, got out of his car, and approached the two men.  Similar to Officer Reiber, Trooper Bryan did not activate his emergency lights.  Upon contact, Trooper Bryan did not speak to either gentleman.  He stood about eight feet away.

Officer Reiber asked Mr. Harrington if he could pat down Harrington “for officer safety reasons.”  Mr. Harrington said “No.”  Officer patted Harrington down anyway, against Harrington’s consent.  During the pat-down, Officer Reiber found a glass pipe used for smoking methamphetamine.  Reiber arrested Harrington.  During the search, officers discovered a pipe and baggie containing methamphetamine on Harrington’s person. Harrigton was charged with Unlawful Possession of Methamphetamine.

The WA Supremes articulated why the search/arrest was illegal, and consequently, why the evidence should be suppressed.  They discussed what “social contact” between an officer and citizen means:

“The phrase’s plain meaning seems somewhat misplaced.  ‘Social contact’ suggests idle conversation about, presumably, the weather or last night’s ball game — trivial niceties that have no likelihood of triggering an officer’s suspicion of criminality.  The term ‘social contact’ does not suggest an investigative component.”

The Court further reasoned that subsequent events quickly dispelled the social contact and escalated the encounter to an unlawful seizure. First, Trooper Bryan’s arrival at the scene escalated the situation away from a mere “social contact” because a reasonable person would think twice about the turn of events.  As a result, Trooper Bryan’s presence contributed to the eventual seizure of Harrington.

Second, Officer Reiber’s request for Mr. Harrington  to remove hands from pockets added to the officer’s unlawfully progressive intrusion.  Third, Mr. Harrington did not consent to the search.  Officers MUST have a well-founded suspicion to search when they lack a defendant’s consent.

Here, these circumstances lacked the foundational basis for a search.  Finally, and before Officer Reiber’s request to search, he did not ask for Harrington’s name or address, did not conduct a warrant check, and did not ask if Harrington carried drugs.

The court concluded Harrington was unconstitutionally seized because, like him, an objectively reasonable person would not have felt free to leave when officers asked to frisk.  Consequently, the seizure violated article I, section 7 of the Washington Constitution.

My Opinion?  Excellent.  Beautiful.  On point.  The WA Supremes got it right.  The cumulative effect of these violations — all three of them — amounted to an unlawful search.  I’m extremely happy the WA Supremes addressed the fine line between a lawful “social contact” and unlawful “progressive intrusion.”  I’ve had numerous clients face criminal charges as a result of an officer’s apparently innocent “social contact,” which was, in reality, a progressive intrusion into their privacy.

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. Winterstein: Parole Officers Cannot Search A Home If Facts Do Not Support the Officer’s Belief That Probationer Lives There.

Constitutional Rights, Due Process, felony, Knock & Talk, law enforcement, Methamphetamine, police, Privacy, Probable Cause, Search and Seizure, Search Warrant, Washington Supreme Court, , ,

Parole and probation have grown far beyond resources allocated to support them

In State v. Winterstein, the WA Supreme Court held that parole officers cannot search a home if the facts do not support the officer’s belief that that defendant on probation lives there.

Terry Lee Winterstein was convicted of Unlawful Manufacture of Methamphetamine after his probation officer conducted a warrantless search of his residence. After trial, Winterstein’s counsel discovered that Winterstein had reported a change of address with the Department of Corrections at least three weeks prior to the search.

Neverthless, the probation officer searched Winterstein’s prior residence. Winterstein argued that the evidence gathered as a result of the warrantless search should be suppressed because his probation officer did not have the authority of law to search a house that was not Winterstein’s documented residence.

The trial court denied the motion and the Court of Appeals affirmed. The Court of Appeals also held that regardless of the illegal search, the evidence could be admissible under the “inevitable discovery doctrine”—that is, evidence that police would have ultimately or inevitably discovered through other (lawful) means.

The case wound its way up to the WA Supreme Court.

First, the Court addressed whether the probation officer’s search of the Winterstein’s former residence was proper.  They reasoned that, generally speaking, individuals under Department of Corrections supervision have a lesser expectation of privacy, and can be searched on the basis of a reasonable suspicion of a probation violation.  However, the Court also said that probation officers must have probable cause—a higher standard—to believe that their probationers live at the residences they search:

“In this context, probable cause exists when an officer has information that would lead a person of reasonable caution to believe that the probationer lives at the place to be searched. The information known to the officer must be reasonably trustworthy. Only facts and knowledge available to the officer at the time of the search should be considered.”

Second, the Supremes addressed the Inevitable Discovery Doctrine.  They reasoned it is well-established that article I, section 7 of the Washington Constitution provides greater protection of privacy rights than the Fourth Amendment of the U.S. Constitution. Section 7 says: “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”

While federal cases have allowed for inevitable discovery, and the state Court of Appeals has applied the doctrine, the Supreme Court said the doctrine is “speculative and does not disregard illegally obtained evidence”—and is therefore incompatible with the state constitution’s expansive protection of privacy.

My opinion?  Extremely well-articulated and correct decision.  The WA Supremes’ handling/dispatching of the Inevitable Discovery Doctrine acknowledges the expanded freedoms under the WA Constitution in comparison to the U.S. Constitution.  Admitting evidence under the Inevitable Discovery Doctrine leaves no incentive for the State to comply with the constitution’s requirement that arrests precede searches.

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. Magee: Police Officers MUST Witness Traffic Infractions

Constitutional Rights, Due Process, law enforcement, misdemeanor, police, Probable Cause, Red Light Cameras, Search and Seizure, Terry Stop, Traffic Infractions, Washington State Patrol, Washington Supreme Court, , ,

In State v. Magee, the WA Supreme Court held police officers lack authority to issue traffic citations if the officer fails to witness the infraction take place.

Mr. Magee was cited for second degree negligent driving after the state patrol received reports from other drivers that a vehicle was traveling the wrong direction on the highway.  The dispatched trooper found Magee parked nose-to-nose with a friend’s car, facing the wrong direction on the shoulder of the SR 512 on-ramp.

The trooper assumed Magee had driven against traffic in order to get in this position.  Magee was cited for negligent driving.  He challenged the infraction, arguing the officer lacked authority to issue a citation when she had not witnessed an infraction.  Unfortunately, his traffic court ruled against him.

Magee’s case found its way to the WA Supreme Court.  They reasoned that RCW 46.63.030 lists the instances where a law enforcement officer has the authority to issue a notice of traffic infraction:

(a) When the infraction is committed in the officer’s presence;

(b) When the officer is acting upon the request of a law enforcement officer in whose presence the traffic infraction was committed;

(c) If an officer investigating at the scene of a motor vehicle accident has reasonable cause to believe that the driver of a motor vehicle involved in the accident has committed a traffic infraction;

(d) When the infraction is detected through the use of a photo enforcement system under RCW 46.63.160; or

(e) When the infraction is detected through the use of an automated traffic safety camera under RCW 46.63.170.

The Supremes overturned Magee’s conviction after analyzing the statute: “RCW 46.63.030 plainly requires us to conclude that an officer must either be present when the infraction occurs or meet one of the other statutory circumstances before issuing a ticket. There is no contention subsections (b) through (e) apply in this case.

Instead, the State argues that the trooper actually witnessed the citable offense because the negligent behavior was “ongoing.” But negligent driving in the second degree is a moving violation. For the infraction to be valid, the movement must have been made in the officer’s presence.”

My opinion?  Again, excellent!  Officers shouldn’t hand out traffic infractions if they don’t witness the infraction happen.  PERIOD.  This violates due process.  This new opinion is (thankfully) consistent with State v. Campbell, 31 Wn.App. 833, 644 P.2d 1219 (1982).  I use Campbell in my pretrial motions to suppress unlawfully obtained evidence.

In Campbell, a motorist drove by a Washington State Trooper and yelled to the trooper that there was a drunk driver going southbound.  The unknown witness described the vehicle.  The Trooper caught up to the vehicle but did not observe the driver violate any traffic laws.  Nevertheless, the trooper stopped the vehicle, conducted a DUI investigation, and arrested the driver for DUI.

The Campbell court concluded that although a police officer may conduct an investigatory stop for suspected drunk driving, but before doing so, s/he must first possess a well-founded suspicion based on articulable facts that such a violation of law was or is presently being committed.

Good job, 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. Patton: WA Supreme Court Acknowledges Search and Seizure Protections Afforded by Arizona v. Gant.

Constitutional Rights, Drug Offenses, Due Process, felony, Jury Trial, law enforcement, marijuana, misdemeanor, police, Police Misconduct, Privacy, Probable Cause, Search and Seizure, Search Warrant, Terry Stop, Traffic Infractions, United States Supreme Court, Washington State Patrol, Washington Supreme Court, , ,

Can Police Search Your Car Without a Warrant?

In State v. Patton, the WA Supreme Court held that an automobile search which happens after arrest is not justified unless the defendant is within reaching distance of the passenger compartment at the time of search and the search is necessary for officer safety or to secure evidence of the crime of arrest.

Randall Patton was wanted on a felony warrant.  A Skamania County Sheriff Deputy spotted him. Patton was on his property and leaning into his own car through the window, rummaging with something on the seat.  The Deputy told Patton he was under arrest.  Patton fled, but was soon apprehended inside a trailer.

Deputies searched the car and found methamphetamine. Patton challenged that the search violated his state and federal constitutional rights because it was not a valid search incident to arrest. The trial court suppressed the evidence but was reversed by the Court of Appeals.

The Court found that Patton was arrested when the officer “manifest[ed] an intent to take [him] into custody” while Patton was standing by his car. Nevertheless, “the search incident to arrest exception is narrow and should be applied only in circumstances anchored to the justifications for its existence.”  The court elaborated their reasoning with the following:

The question before us, then, is whether it would stretch the search incident to arrest exception beyond its justifications to apply it where the arrestee is not a driver or recent occupant of the vehicle, the basis for arrest is not related to the use of the vehicle, and the arrestee is physically detained and secured away from the vehicle before the search. We believe it would.

Congratulations to Justice Jim Johnson, who found the case identical to Arizona v. Gant, decided earlier this year by the United States Supreme Court.   In Gant, the U.S. Supremes held that a search conducted by police officers after handcuffing the defendant and securing the scene violates the Fourth Amendment’s protection against unreasonable searches and seizures.

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

Bellingham Police Enforce Bicycle Laws More Heavily

Bellingham, Bellingham Defense Attorney, Due Process, law enforcement, police, Probable Cause, Red Light Cameras, Search and Seizure, Terry Stop, Traffic Infractions, Uncategorized, Washington State Traffic Commission, , ,

With the onset of worsening weather conditions and fewer hours of daylight, a new “education and enforcement” effort is under way to help bicyclists and cars better share the road.

Under the new program, police officers are encouraged to treat bicyclists equal to drivers when it comes to stopping and ticketing people for traffic violations. Officers will specifically be looking for lighting violations, which include improperly equipped bicycles, and traffic violations, such as failing to obey stop signs and stop lights.

The Washington Traffic Safety Commission provides a free brochure on its Web site which outlines safety tips for bicyclists as well as the laws bicyclists must follow:

My Opinion?  I’m not buying it.  Can we say, “New and creative way to ticket people and generate revenue for empty City coffers?”  Personally, I don’t see the need for “education and enforcement” of bicycle laws.  No accidents have happened.  There’s no great increase of bicyclists (I’d think fewer, given worse weather conditions).  There’s no growing agitation between bicyclists and motorists.  If it ain’t broke, don’t try and fix it.

My greatest concern is that police have more incentive to pull bicyclists over and conduct a DUI investigation. Section 45.61.502 of the Revised Code of Washington, which details driving under the influence and penalties, refers to people driving a vehicle. A vehicle, as defined in RCW 46.04.670, “includes every device capable of being moved upon a public highway and in, upon, or by which any persons or property is or may be transported or drawn upon a public highway, including bicycles.”

Not good for bicyclists . . .

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.

9th Circuit’s Search & Seizure Outline

Bellingham Defense Attorney, Search and Seizure, Search Warrant, Terry Stop, Whatcom County Criminal Defense, , ,

Search and Seizure Law: Have You Been “Seized” by A Police Officer? — Colorado Criminal Lawyer Blog — April 3, 2021

Interesting. The 9th Circuit Court of Appeals just released a Search and Seizure outline.

This outline is AMMUNITION for pretrial motion practice.  If you, a potential defendant, were held in custody by police, arrested, questioned, and/or your property (house & car) were searched; then your attorney should argue pretrial motions to suppress.  Pretrial motion practice protects your individual rights while providing the primary defense for your case.  Any attorney worth their salt should argue pretrial motions on your behalf.

The federal public defenders in Oregon drafted the outline.  They appear before the U.S Court of Appeals for the 9th Circuit.  This court carries appellate over many federal district courts along the west coast; Washington included.

The outline was updated from two years ago.  Among the many new cases, the big news from the Supreme Court is the decision in Arizona v. Gant overruling prior decisions that had divorced the scope of vehicle searches incident to arrest from the rationale of officer safety. The Ninth Circuit provided important guidance on computer searches in the en banc decision in Comprehensive Drug Testing.

Two district court cases from last summer provide a reminder of the practical importance of motion practice for our clients: Judge Jones and Judge Haggerty granted motions to suppress in Freeman and Izguerra-Robles, litigated by AFPDs Ellen Pitcher and Nancy Bergeson, respectively.

Again, great bedtime reading.  A “must have” for attorneys arguing pretrial motions.

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

Seattle v. St. John: Police May Obtain a Search Warrant For a Blood Sample When Motorists Refuse to Give Breath Test.

Blood Test, Constitutional Rights, Drug Offenses, Due Process, DUI, law enforcement, marijuana, misdemeanor, police, Privacy, Probable Cause, Search and Seizure, Search Warrant, Terry Stop, Traffic Infractions, Washington Court of Appeals, Washington State Patrol, Washington Supreme Court, , ,

Can I Refuse A Blood Test? - Welch and Avery

In Seattle v. St. John, the WA Supreme Court held that police may obtain a search warrant for a blood sample when motorists refuse to give a breath test.

After crashing his motorcycle in Seattle, Robert St. John was investigated for DUI. A police officer asked St. John to consent to a blood alcohol test.  St. John refused.   The officer obtained a warrant for the test.  The results were suppressed in municipal court based on a broad interpretation of a provision of the Implied Consent Law that prohibits performing the test once consent has been refused. The superior court reversed and the Court of Appeals certified three questions to the Supreme Court:

1. Does the implied consent statute allow the State to administer a blood alcohol test pursuant to a warrant after a driver has declined a voluntary blood alcohol test?

2. Does an implied consent warning violate due process if it does not inform drivers that an officer may seek a warrant for a blood alcohol test even if the driver declines the voluntary blood alcohol test?

3. Does the doctrine of equitable estoppel bar the State from seeking a warrant for a blood alcohol test after informing drivers that they may refuse the voluntary blood alcohol test?

The WA Supreme Court upheld the superior court and allowed the blood test evidence.  They reasoned that the Implied Consent law restricts performing a blood test pursuant to that law, but does not prohibit performing a blood test pursuant to a lawfully issued warrant (RCW 46.20.308). Similarly, the officer’s statements about the Implied Consent law did not foreclose his obtaining the warrant.

I echo the dissenting opinion of Justice Charles Sanders.  Simply put, an officer cannot force a driver to submit to a blood test if the driver refuses consent.  However, under the majority opinion’s reasoning, a driver’s refusal to consent to a Breath test is essentially meaningless.

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.

X52 Program Leads to Increased DUI Patrols and Arrests

Bellingham, Bellingham Defense Attorney, Constitutional Rights, Department of Licensing, Due Process, DUI, law enforcement, misdemeanor, police, Privacy, Reckless Driving, Search and Seizure, Terry Stop, Traffic Infractions, Washington State Patrol, Washington State Traffic Commission, Whatcom County Criminal Defense, , ,

2018 DRUNK-DRIVING AWARENESS ENFORCEMENT CAMPAIGN | DMV Assistant

This past Labor Day Weekend, the Washington State Patrol made 296 arrests for suspicion of DUI.  That’s slightly higher than the 292 arrests WSP made over the same weekend in 2008.  In a recent report released by the WSP, there were 44 calls from concerned motorists which led to 20 arrests for suspicion of DUI.  The increased arrests — and inevitable prosecutions — are directly attributed to Washington State Patrol’s (WSP)  implementation of the X52 anti-DUI campaign.

X52 stands for extra patrols 52 weeks per year. The goal of the X52 program is to reduce speeding and DUI-related traffic fatalities and serious injuries on Washington’s roads.

Under the program, Washington Traffic Safety Commission released $450,000 worth of grants to local law enforcement agencies to help them provide additional impaired driving and speed patrols every week of the year.  These sustained enforcement patrols specifically target speed and DUI offenders, as well as look for other traffic violations. The program is being administered statewide through a network of community traffic safety task forces.

The X52 program also includes initiatives designed to let the public know that these extra patrols are happening in Washington every week. $450,000 is budgeted for paid radio advertising and alternative messaging. Earned media efforts will be spearheaded by community traffic safety task forces.

My opinion?  Clearly, the WSP is aggressively campaigning the X52 program.  I foresee even greater DUI patrol this holiday season.

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.