Category Archives: Search and Seizure

Privacy & Text Messages

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, felony, Methamphetamine, Mount Vernon Criminal Defense Attorney, Privacy, Search and Seizure, Skagit County Criminal Defense, Technology, Text Messages, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Cop Cams New To Most But Old School For Modesto PD - capradio.org

Privacy & Text Messages. In State v. Bowman, the WA Court of Appeals held that a police officer violates a defendant’s constitutional rights by sending a text message to the defendant from an unfamiliar phone number while impersonating a known contact of the defendant.

BACKGROUND FACTS

A Department of Homeland Security (DHS) agent sent a series of text messages to Mr. Bowman. The DHS agent claimed to be someone named Mike Schabell, a person to whom Bowman had sold methamphetamine earlier that day, and indicated he wanted to buy more drugs. The ruse led to charges of possession of methamphetamine with intent to deliver.

The trial court denied his motion to suppress the drugs and drug paraphernalia on his person and in his vehicle. At trial, Mr. Bowman was found guilty.

On appeal, Bowman argues the trial court erred in denying his motion to suppress evidence that flowed from his text message conversation with the DHS Agent. Specifically, he argues that DHS Agent’s impersonating a known contact of his through text messages violated his right to privacy under the Washington Constitution.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that under article I, section 7 of the Washington Constitution, no person shall be disturbed in his private affairs, or his home invaded, without authority of law.

“Interpretation of this article requires a two part analysis,” said the Court. “First, we must determine whether the action complained of constitutes a disturbance of private affairs,” said the Court. “If we determine that a valid private affair has been disturbed, we then must determine whether the intrusion is justified by authority of law.”

The DHS Agent’s Actions Disrupted Mr. Bowman’s Private Affairs.

The Court of Appeals began by defining “Private affairs” as those privacy interests which citizens of this state have held, and should be entitled to hold, safe from government trespass without a warrant.

Based on that, the Court reasoned Mr. Bowman did not talk with someone he thought was a stranger. Rather, he conversed with a person who represented himself as someone that Bowman knew. Therefore, reasoned the court, Bowman had a reasonable expectation of privacy for that conversation. The DHS agent invaded that right of privacy.

The DHS Agent Was Not Acting Under Authority of Law.

The Court of Appeals reasoned that although Mr. Schabell consented to the search of his phone, there was no proof that he consented to being impersonated.

“Therefore, Dkane was not acting under authority of law, and violated Bowman’s right of privacy,” said the Court. “The trial court erred by failing to suppress the evidence obtained by that violation of privacy.”

With that, the Court of Appeals reversed Mr. Bowman’s conviction and remanded for a new trial, with instructions to suppress evidence obtained in violation of Bowman’s right to privacy.

My opinion? Good decision.

Reasonable Suspicion & 911 Calls

911 Call, 9th Circuit Court of Appeals, Bellingham Defense Attorney, Constitutional Rights, Federal Crimes & Prosecutions, Firearm, Fourth Amendment, Mount Vernon Criminal Defense Attorney, Reasonable Suspicion, Search and Seizure, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , , ,

Concealed Carry and Alcohol - What's the Bottom Line? - Alien Gear ...

In United States v. Vandergroen, the 9th Circuit Court of Appeals held that the police’s search of a suspicious person was reasonable under the circumstances when bar patrons called 911 minutes before to report the man had a pistol on him.

BACKGROUND FACTS

Late on a Saturday evening of February 17, 2018, a worker at a bar in California called 911 to report that three patrons had seen a man in the area with a pistol on him. In response to this call, the police stopped the man as he drove away, discovered a pistol in his car, and placed him under arrest. The man, Mr.  Vandergroen, argued a Rule 12 motion to suppress the evidence. The lower federal court denied the motion. Vandergroen was subsequently convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), which is a federal criminal conviction.

On appeal, Vandergroen now argues that the 911 call should never have led to his stop in the first place because it did not generate reasonable suspicion, and that the evidence of the pistol should therefore have been excluded.

COURT’S ANALYSIS & CONCLUSIONS

The 9th Circuit Court of Appeals disagreed with Mr. Vandergroen. It affirmed the lower court’s denial of Vandergroen’s motion to suppress and upheld his conviction.

The Court began by saying that under the Fourth Amendment, an officer may conduct a brief investigative stop only where s/he has a particularized and objective basis for suspecting the particular person stopped of criminal activity, commonly referred to as “reasonable suspicion.”

The Court further elaborated that while a 911 call may generate reasonable suspicion, it can only do so when, under the totality-of-the circumstances, it possesses two features. First, the tip must exhibit sufficient indicia of reliability, and second, it must provide information on potential illegal activity serious enough to justify a stop.

Finally, the Court identified a number of factors that demonstrate the reliability of a tip. These facts include (1) whether the tipper is known, rather than anonymous; (2) whether the tipper reveals the basis of his knowledge; (3) whether the tipper provides detailed predictive information indicating insider knowledge, id.; whether the caller uses a 911 number rather than a non-emergency tip line; and (4) whether the tipster relays fresh, eyewitness knowledge, rather than stale, second-hand knowledge.

With the above in mind, the Court of Appeals delved into its analysis.

“The totality of the circumstances in this case demonstrates that the 911 call was sufficiently reliable to support reasonable suspicion,” said the Court. It reasoned that first, the statements by an independent witness were undoubtedly reliable. “Witness #2 provided his name and employment position, making him a known, and therefore more reliable, witness,” said the Court.

Second, the Court of Appeals reasoned that the statements by the bar’s patrons were also reliable. “Although the patrons remained anonymous during the call, which generally cuts against reliability, their statements exhibited sufficient indicia of reliability to overcome this shortcoming,” said the Court. Finally, the Court reasoned that the reported activity — possessing a concealed weapon  was presumptively unlawful in California and was ongoing at the time of the stop.

In conclusion the Court of Appeals held that the 911 call generated reasonable suspicion justifying the stop and the lower court was correct to deny Vandergroen’s motion to suppress the evidence obtained during the stop. His criminal conviction was upheld.

My opinion? Mind you, this is a federal opinion. Under Washington law, however,  a bare report that someone is in possession of a firearm does not provide reasonable suspicion for an investigative stop. This is because Washington is both an open carry state and liberally grants concealed weapons permits. United States v. Brown.

In Washington, under RCW 9.41.300(1)(d), a stop may have been permissible in this case if the individual with the pistol had been in that portion of the lounge classified by the state liquor and cannabis board as off-limits to persons under twenty-one years of age. That’s because it is unlawful for any person to enter a bar with a firearm.

Please read my Legal Guide on Search and Seizure and contact my office if you, a friend or family member face criminal charges involving a questionable search or seizure of evidence. Hiring a competent and experienced defense attorney is the first and best step towards justice.

Illegal Search At Starbucks

Bellingham Defense Attorney, Community Caretaking, Drug Offenses, felony, Mount Vernon Criminal Defense Attorney, Search and Seizure, Skagit County Criminal Defense, Terry Stop, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

In Starbucks incident, Philly cops and employees acted 'in ...

In State v. Martin, the WA Court of Appeals held that the illegal search of a person in a Starbucks store should have been suppressed because the officer was not conducting a criminal trespass investigation when he removed a metal utensil that was sticking out of the defendant’s pocket.

BACKGROUND FACTS

On December 11, 2017, Officer Bickar responded to a 911 call from a Starbucks employee, requesting assistance with the removal of a sleeping person inside the store. When Bickar arrived, he saw Martin sleeping in a chair. Bickar gestured to the Starbucks employee and received a responsive gesture from the employee that Martin was the person identified in the 911 call.

When Bickar approached Martin, he noticed Martin was wearing multiple jackets that had pockets. Bickar attempted to wake Martin, first by raising his voice and then by squeezing and shaking his left shoulder. Martin remained unresponsive.

Bickar noticed the end of a metal utensil sticking out of Martin’s pocket. Bickar worried that the metal utensil could be a knife or another utensil sharpened into a weapon. Bickar also expressed concerns about sharp needles.

Without feeling the outside of the pocket, Bickar removed the utensil. The utensil was a cook spoon, had burn marks on the bottom, and a dark brown residue on the inside. At that point, Bickar determined that he had probable cause to arrest Martin for Possession of Drug Paraphernalia and continued searching Martin. While searching Martin, Bickar found methamphetamine, heroin, cocaine, and other drug paraphernalia. Martin was arrested.

Martin moved to suppress all evidence collected as a result of the unlawful detention and search. The court heard testimony from Officer Bickar and denied Martin’s motion to suppress.

Martin proceeded to a stipulated bench trial on the charge of unlawful possession of a controlled substance. The court found Martin guilty. The court sentenced Martin to 30 days of confinement. Martin appealed.

COURT’S ANALYSIS & CONCLUSIONS

First, the Court held that the search was not a valid Terry search. It explained that while Terry does not authorize a search for evidence of a crime, officers are allowed to make a brief, non-intrusive search for weapons if, after a lawful Terry stop, a reasonable safety concern exists to justify the protective frisk for weapons so long as the search goes no further than necessary for protective purposes.

“A reasonable safety concern exists, and a protective frisk for weapons is justified, when an officer can point to ‘specific and articulable facts’ which create an objectively reasonable belief that a suspect is ‘armed and presently dangerous.

Here, however, the Court of Appeals found the search was not a justifiable under Terry:

“This search fails to meet the requirements under Terry. Starbucks is open to the public. The record does not support the trial court’s finding that Bickar was conducting a criminal investigation for trespass because there is no evidence in the record that Starbucks had trespassed Martin from the premises. Also absent from the record is evidence supporting Bickar’s claim that Martin sleeping created a reasonable safety concern.” ~WA Court of Appeals

Consequently, the Court held the search was not lawful under Terry because there was no reasonable suspicion that a crime had been committed, there was not a reasonable safety concern, and the search exceeded the lawful scope of a frisk.

The Court also rejected the State’s arguments that the search was lawful under the community caretaking exception to the warrant requirement. It explained that the community caretaking exception applies when (1) the officer subjectively believed that an emergency existed requiring that he or she provide immediate assistance to protect or preserve life or property, or to prevent serious injury, (2) a reasonable person in the same situation would similarly 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.

“Officer Bickar did not subjectively believe an emergency existed and a reasonable person in the same situation would not believe there was a need for assistance,” said the Court. “Furthermore, even if the community caretaking exception applied to this search, a simple pat-down on the outside of Martin’s coat pocket would have alleviated any concern that the metal utensil was a sharp object or weapon.” Consequently, the Court held that removing the spoon violated Martin’s right to be free from unreasonable searches and seizures.

With that, the Court of Appeals vacated Martin’s conviction.

Please contact my office if you, a friend or family member face criminal charges in the aftermath of a questionable search and seizure of their home, car or person. Hiring an experienced criminal defense attorney is the first and best step towards justice.

Suspended License Pullover

Bellingham Defense Attorney, Constitutional Rights, Department of Licensing, Fourth Amendment, Mount Vernon Criminal Defense Attorney, Search and Seizure, Skagit County Criminal Defense, Terry Stop, United States Supreme Court, Whatcom County Criminal Defense, , , , ,

What If I Lose My License But Continue to Drive (Driving with a ...

In  Kansas v. Glover, the U.S. Supreme Court held that the stop of a vehicle is lawful after running the vehicle’s license plate and discovering that the registered owner’s driver’s license was suspended.

BACKGROUND FACTS

A Kansas police officer on traffic patrol performed a computer DOL check and stopped Defendant’s car for the sole reason that the car’s registered owner had a suspended license. The Defendant turned out to be the registered owner, and was arrested.

The Kansas Supreme Court held that the stop violated the Fourth Amendment. It reasoned that without further suspicion that the current driver was, in fact, the registered owner of the car, a stop solely premised on information that the registered owner had a suspended license violated the Fourth Amendment.

Kansas petitioned the U.S. Supreme Court for review, which was granted. Justice Clarence Thomas delivered the opinion of the Court in its 8-1 decision.

LEGAL ISSUE

Whether the Fourth Amendment allows police to stop a car when the only reason police have for the stop is that the car’s registered owner has a suspended license.

COURT’S ANALYSIS

The U.S. Supreme Court reasoned that an officer may initiate a brief investigative traffic stop when he has “a particularized and objective basis” to suspect legal wrongdoing.

“Here, the deputy’s common-sense inference that the owner of a vehicle was likely the vehicle’s driver provided more than reasonable suspicion to initiate the stop,” said the Court. “That inference is not made unreasonable merely because a vehicle’s driver is not always its registered owner or because Glover had a revoked license.”

The Court further reasoned that empirical studies demonstrate that drivers with suspended or revoked licenses frequently continue to drive. Also, the Court reasoned that Officers, like jurors, may rely on probabilities in the reasonable suspicion context.

“Moreover, the deputy here did more than that: He combined facts obtained from a database and commonsense judgments to form a reasonable suspicion that a specific individual was potentially engaged in specific criminal activity.” ~Justice Thomas, U.S. Supreme Court

My opinion?  This decision is consistent with existing Washington precedent.  Under State v. McKinney, a vehicle may be stopped based upon DOL records which indicate that the driver’s license of the  registered owner of the vehicle is suspended.  The officer need not affirmatively verify that the driver’s appearance matches that of the registered owner before making the stop, but the Terry stop must end as soon as the  officer determines that the operator of the vehicle cannot be the registered owner.

Please contact my office if you, a friend or family member experience a questionable traffic stop from police. Hiring an experienced and effective criminal defense attorney is the first and best step toward justice.

Miranda & Border Detention

Bellingham Defense Attorney, Drug Offenses, Fifth Amendment, Interrogation, Miranda, Mount Vernon Criminal Defense Attorney, Search and Seizure, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Interrogation Room - SoFlo Studio

In State v. Escalante, the WA Supreme Court held that separating a person from the normal stream of traffic and detaining them for five hours in a locked room that was inaccessible to the public or other travelers will create the type of police-dominated environment requires Miranda warnings.

BACKGROUND FACTS

In August 2017, Mr. Escalante was traveling in a van with a group of friends, heading back into Washington from Canada. They were all returning from the Shambala Music Festival in British Columbia. At the Frontier Border Crossing, patrol agents searched all vehicles coming from the festival as part of a drug enforcement operation. Escalante and his friends were directed to the secondary inspection area. Border patrol agents took their documents.

The secondary inspection lobby was an 11 x 14 foot locked room. It is not accessible to the public or other travelers. Detainees are not allowed to use the bathroom or access water without getting permission from agents and submitting to a pat-down search. Agents patted down all four men and found narcotics on the driver and one passenger, but not on Escalante or the other passenger. Agents kept all the men secured – either in the locked lobby or in the detention cells – for five hours while they searched the van.

The search uncovered drug paraphernalia and personal items containing drugs, including a backpack with small amounts of heroin and lysergic acid diethylamide (LSD). Without giving Miranda warnings, agents confronted the men with each item of drug paraphernalia and each item in which drugs were found and asked who owned it.

Escalante admitted he owned the backpack. At that time, Escalante and his companion were the only travelers in the secured lobby. Eventually, the Border Patrol Agents summoned local law enforcement and held Escalante until they arrived. These officers formally arrested Escalante and gave him Miranda warnings.

Escalante was charged in state court with possession of heroin and LSD. He moved to suppress his statement claiming ownership of the backpack because it was obtained in custody by interrogation without Miranda warnings. However, the trial court admitted Escalante’s incriminating statement. Escalante was convicted at trial. The Court of Appeals affirmed. The case eventually made its way to the WA Supreme Court.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court explained that the Fifth Amendment guarantees that individuals will not be compelled by the government to incriminate themselves. In short, the Fifth Amendment protects an individual’s right to remain silent, in and out of court, unless he chooses to speak in the unfettered exercise of his own will.

The Court also explained that in order to assure an individual freely makes the choice to talk to the police, Miranda requires that before custodial interrogation, the police inform a suspect of their right to remain silent and their right to the presence of an attorney, appointed or retained.

Evaluating the totality of the circumstances, the Court concluded that a reasonable person in Escalante’s circumstances would have felt their freedom of action was curtailed to a degree associated with formal arrest:

“Agents confiscated Escalante’s documents, routed him to a secondary inspection area, separated him from his belongings, arrested the driver of the van in which he was traveling, and detained him for five hours in a small locked lobby that was not accessible to the public or other travelers. After a lengthy detention, he was questioned using a procedure that communicated agents had found drugs and were suspicious of him. These circumstances created precisely the type of incommunicado police-dominated environment that was the concern of Miranda. We hold that Escalante was in custody and his unwarned statements should have been suppressed.”

With that, the WA Supreme Court reversed and vacated Mr. Escalante’s convictions.

My opinion? Good decision. Escalante should have been informed of his Miranda rights. Clearly, that the statements he made resulted from direct interrogation by the officers and were not spontaneous and unsolicited statements of a person who was anxious to explain.

Please contact my office if you, a friend or family member are charged with a crime after giving incriminating statement and/or undergoing a questionable search or seizure. Hiring a competent and experienced defense attorney is the first and best step toward justice.

Investigative Stop

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Probable Cause, Reasonable Suspicion, Search and Seizure, Skagit County Criminal Defense, Terry Stop, United States Supreme Court, Whatcom County Criminal Defense, , , , ,

Police are searching far fewer cars in states that have legalized ...

In Kansas v. Glover, the United States Supreme Court held that a police officer’s investigative traffic stop made after running the vehicle’s license plate and learning that the registered owner’s driver’s license has been revoked is reasonable under the Fourth Amendment. 

BACKGROUND FACTS

A Kansas deputy sheriff ran a license plate check on a pickup truck, discovering that the truck belonged to respondent Glover and that Glover’s driver’s license had been revoked. The deputy pulled the truck over because he assumed that Glover was driving. Glover was in fact driving and was charged with driving as a habitual violator.

He moved to suppress all evidence from the stop, claiming that the deputy lacked reasonable suspicion. The District Court granted the motion, but the Court of Appeals reversed. The Kansas Supreme Court in turn reversed, holding that the deputy violated the Fourth Amendment by stopping Glover without reasonable suspicion of criminal activity.

COURT’S ANALYSIS & CONCLUSIONS

Justice Thomas delivered the majority opinion for the Court.

His ruling states that an officer may initiate a brief investigative traffic stop when he has a particularized and objective basis to suspect legal wrongdoing. The Court reasoned that the level of suspicion required is less than that necessary for probable cause and depends on the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.

“Courts must therefore permit officers to make commonsense judgments and inferences about human behavior.” ~Justice Thomas, U.S. Supreme Court

“Here, the deputy’s commonsense inference that the owner of a vehicle was likely the vehicle’s driver provided more than reasonable suspicion to initiate the stop,” reasoned Justice Thomas. Though common sense suffices to justify the officer’s inference, empirical studies demonstrate that drivers with suspended or revoked licenses frequently continue to drive. “And Kansas’ license-revocation scheme, which covers drivers who have already demonstrated a disregard for the law or are categorically unfit to drive, reinforces the reasonableness of the inference that an individual with a revoked license will continue to drive,” said Justice Thomas.

The Court said scope of its holding is narrow. “The reasonable suspicion standard takes into account the totality of the circumstances,” said the Court. “The presence of additional facts might dispel reasonable suspicion, but here, the deputy possessed no information sufficient to rebut the reasonable inference that Glover was driving his own truck.”

With that, the U.S. Supreme Court reversed and remanded The Kansas Supreme Court’s decision that the deputy violated the Fourth Amendment by stopping Glover without reasonable suspicion of criminal activity.

My opinion? The Supreme Court’s decision is not surprising. And in truth, it’s consistent with existing Washington precedent.  In State v. McKinney, and State v. Phillips, the WA Court of Appeals held that a vehicle may be stopped based upon DOL records which indicate that the driver’s license of the  registered owner of the vehicle is suspended.  The officer need not affirmatively verify that the driver’s appearance matches that of the registered owner before making the stop, but the Terry stop must end as soon as the  officer determines that the operator of the vehicle cannot be the registered owner.

Please contact my office if you, a friend or family member are charged with crimes after a questionable search and seizure. Hiring a competent attorney is the first and best step toward gaining justice.

Unlawful Search Of Electronic Devices at Airports

ACLU, Bellingham Defense Attorney, Federal Crimes & Prosecutions, Mount Vernon Criminal Defense Attorney, Search and Seizure, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

icon of a border agent examining digital devices

Good news. In a major victory for privacy rights at the border, a federal court in Boston ruled that suspicion less searches of travelers’ electronic devices by federal agents at airports and other U.S. ports of entry are unconstitutional.
The ruling came in a lawsuit, Alasaad v. McAleenan, filed by the American Civil Liberties Union (ACLU), Electronic Frontier Foundation (EFF), and ACLU of Massachusetts, on behalf of 11 travelers whose smartphones and laptops were searched without individualized suspicion at U.S. ports of entry.
“This ruling significantly advances Fourth Amendment protections for millions of international travelers who enter the United States every year,” said Esha Bhandari, staff attorney with the ACLU’s Speech, Privacy, and Technology Project. “By putting an end to the government’s ability to conduct suspicionless fishing expeditions, the court reaffirms that the border is not a lawless place and that we don’t lose our privacy rights when we travel.”
“This is a great day for travelers who now can cross the international border without fear that the government will, in the absence of any suspicion, ransack the extraordinarily sensitive information we all carry in our electronic devices,” said Sophia Cope, EFF Senior Staff Attorney.
The district court order puts an end to Customs and Border Control (CBP) and Immigration and Customs Enforcement (ICE) asserted authority to search and seize travelers’ devices for purposes far afield from the enforcement of immigration and customs laws. Border officers must now demonstrate individualized suspicion of illegal contraband before they can search a traveler’s device.
The number of electronic device searches at U.S. ports of entry has increased significantly. Last year, CBP conducted more than 33,000 searches, almost four times the number from just three years prior.
International travelers returning to the United States have reported numerous cases of abusive searches in recent months. While searching through the phone of Zainab Merchant, a plaintiff in the Alasaad case, a border agent knowingly rifled through privileged attorney-client communications. An immigration officer at Boston Logan Airport reportedly searched an incoming Harvard freshman’s cell phone and laptop, reprimanded the student for friends’ social media postings expressing views critical of the U.S. government, and denied the student entry into the country following the search.
Good decision!
Please read my Search and Seizure Legal Guide contact my office if you, a friend or family member face criminal charges because law enforcement officers conducted a questionably unlawful search. Hiring competent counsel is the first and best step toward getting justice.

A Cell Phone “Ping” Is a Search

Bellingham Defense Attorney, Cell Phone, Cell-Site Location Information (CSLI), Constitutional Rights, DNA, Exigent Circumstances, Fourth Amendment, Homicide & Manslaughter, Mount Vernon Criminal Defense Attorney, police, Rape, Search and Seizure, Search Warrant, Sex Crimes, Skagit County Criminal Defense, Uncategorized, Violent Crime, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Image result for cell phone ping

In State v. Muhammad, the WA Supreme Court held that a cell phone “Ping” is a search under the WA Constitution and the Fourth Amendment.

BACKGROUND FACTS

Police investigated the rape and murder of Ms. Ina Claire Richardson. The night she was killed, Richardson had shopped at a local grocery store.  Security cameras recorded her walking through the parking lot toward a distinctive maroon sedan. Minutes later, the vehicle’s headlights switched on, and the vehicle exited the parking lot, drove onto an access road behind a nearby hotel, and parked. Two individuals appeared in the car, which remained parked for approximately one hour. Police officers later discovered a condom wrapper at this location.

On November 10, 2014, a law enforcement officer recognized the unique features of the maroon sedan from the security footage and conducted a traffic stop. The driver was Mr. Muhammad. During the stop, the officer asked Muhammad about his vehicle, asked him whether he had gone to the grocery store or had been in the area on the night of the murder, and obtained Muhammad’s cell phone number before letting him go.

After this encounter, law enforcement “pinged” Muhammad’s cell phone without a warrant. The ping placed Muhammad in an orchard in Lewiston, Idaho. Washington and Idaho police arrived, seized Muhammad’s cell phone, and impounded his car. Police also sought and obtained a search warrant for Muhammad’s car.

Muhammad was taken into custody. He denied any involvement in the rape and murder and eventually asked for legal counsel. Police later searched Muhammad’s car. They discovered blood on the passenger seat; in the trunk, they found latex gloves and other incriminating evidence. The police also discovered condoms in the trunk of the sedan. These condoms matched the condom wrapper found by the hotel service entrance. Finally, The blood was matched to that of Ms. Richardson. Autopsy swabs of Richardson’s vagina and fingernails revealed a limited amount of DNA (deoxyribonucleic acid) matching Muhammad’s profile.

The police obtained a search warrant for Muhammad’s cell phone records. These calls he made on the night of the incident connected to multiple cell towers, indicating that Muhammad was moving. One such cell tower placed Muhammad in the location where Richardson’s body was found.

Muhammad was arrested and charged with rape and felony murder.

At trial, Muhammad moved to suppress all physical evidence collected as a result of the warrantless ping of his cell phone. After a CrR 3.6 hearing, the trial court issued a written order denying the motion based in part on exigent circumstances. A jury convicted Muhammad as charged. Muhammad appealed his convictions.

COURT’S ANALYSIS & CONCLUSIONS

  1. The Cell Phone “Ping” Tracking Was A Warrantless Search.

The WA Supreme Court held that the “ping” tracking of Muhammad’s cell phone was indeed a search.

“When law enforcement loses sight of a suspected individual, officers need merely ask a cellular service carrier to ping that individual’s phone and almost instantaneously police acquire data on the suspect’s past and present location,” said the Court. “This location tracking technique does substantially more than binoculars or flashlights; it enables officers to see farther than even the walls of a home—it pierces through space and time to pinpoint a cell phone’s location and, with it, the phone’s owner.”

The Court further reasoned that this type of search was exactly what happened to Mr. Muhammad. “The police could not locate Muhammad,” said the Court. “They knew only that he had likely left the area after officers returned to his apartment complex and found the maroon sedan had disappeared. As Muhammad pointed out, the officers’ senses alone could not locate him unless they converted his phone into a tracking device,” said the Court.

“Historical and real-time CSLI, like text messages, reveal an intensely intimate picture into our personal lives. Our cell phones accompany us on trips taken to places we would rather keep private, such as the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on.”

              2. Exigent Circumstances Exist to Justify the Warrantless Cell Phone Search.

The Court said that because the State failed to get a warrant prior to pinging Muhammad’s cell phone, the evidence obtained pursuant to the improper search should be suppressed unless the State proves that an exception to the warrant requirement applies. “Exigent Circumstances” is one of those exceptions.

To prove exigent circumstances, the State must point to specific, articulable facts and the reasonable inferences therefrom which justify the intrusion. “The mere suspicion of flight or destruction of evidence does not satisfy this particularity requirement,” said the Court.

The Court reasoned that under the facts of this case, the State has proved exigent circumstances—specifically that Muhammad was in flight, that he might have been in the process of destroying evidence, that the evidence sought was in a mobile vehicle, and that the suspected crimes (murder and rape) were grave and violent charges.

With that, the WA Supreme Court affirmed Muhammad’s conviction.

Please read my Search and Seizure Legal Guide and contact my office if you, a friend or family member face criminal charges and the evidence was obtained through a warrantless search of cell phone data and/or location. It is imperative to hire an experienced criminal defense attorney who is well-versed in the law regarding search and seizure of this evidence.

Search Incident to Arrest

Bellingham Defense Attorney, Drug Offenses, Fourth Amendment, Mount Vernon Criminal Defense Attorney, Search and Seizure, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Woman Caught With Drugs In Purse, Claims The Wind Did It - New Country 105.1

In State v. Richards, the WA Court of Appeals held that a search of an arrestee’s person, purses or handbags extends to closed, but not locked containers found on their person at the time of arrest.

BACKGROUND FACTS

On November 11, 2017, a loss protection officer at a retail store in Woodland, observed Richards placing store merchandise into her purse. The officer approached Richards after she left the store without paying for the items in her purse. Two police officers, who were waiting outside, detained Richards and escorted her to the loss protection office.  There, the officers arrested Richards and searched her purse.

During the search of the purse, the officers discovered the stolen merchandise and a closed, zippered pouch. They opened the pouch and searched it, looking for theft tools used for removing secure access devices. The pouch contained drug paraphernalia, foil residue, straws, and syringes.

The State charged Richards with unlawful possession of heroin. Richards filed a motion to suppress the contents of the pouch found in her purse. The trial court considered the evidence set out above and denied the motion. Richards subsequently was convicted of possession of heroin. She appeals her conviction.

COURT’S ANALYSIS & CONCLUSIONS

In short, the Court of Appeals held that officers did not exceed the scope of a lawful search incident to arrest when they searched a closed pouch in Richards’s purse that she was carrying at the time of arrest. Accordingly, the Court of Appeals affirmed Richards’s conviction.

The Court reasoned that both the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution prohibit warrantless searches unless one of the exceptions to the warrant requirement applies.

One exception to the warrant requirement is a search of a person incident to a lawful arrest of that person. Under this exception, an officer making a lawful custodial arrest has authority to search the person being arrested as well articles of the arrestee’s person such as clothing and personal effects.

“An article immediately associated with the arrestee’s person may be searched if the arrestee has actual possession of it at the time of a lawful custodial arrest,” reasoned the Court of Appeals. “This rule is referred to as the ‘time of arrest’ rule. Based on this rule, an officer may search a purse or a bag in the arrestee’s possession at the time of arrest.”

However, the Court of Appeals also reasoned that the search incident to arrest exception did not apply to the search of a locked box inside a backpack an arrestee was carrying at the time of the arrest. For example, in State v. VanNess, the court concluded that the locked box in the backpack could not be searched without a warrant because the arresting officer raised no concerns about his safety and there was no indication that the officer believed that the box would contain evidence relevant to the crime of arrest.

“The issue here is whether the same rule applies to a closed, unlocked container in Richards’s purse. We conclude that it does not.”

Ultimately, the Court of Appeals reasoned that the search of a closed, unlocked pouch in a purse in the arrestee’s possession simply does not implicate the type of significant privacy interests that would render the search of the pouch unlawful.

The Court concluded that officers searching a purse or bag incident to arrest may lawfully search closed, unlocked containers within that purse or bag. “Accordingly, we hold that the trial court did not err in denying Richards’s motion to suppress the evidence discovered in the search of the pouch in her purse.”

Please read my Search and Seizure Legal Guide and contact my office if you, a friend or family member face criminal charges involving a search of persons, vehicles or homes. It’s critically important to retain experienced defense counsel like myself who are knowledgeable of Washington’s search and seizure laws.

WA Supreme Court Invalidates “Community Caretaking” Search

Bellingham Defense Attorney, Community Caretaking, Constitutional Rights, felony, Fourth Amendment, Homicide & Manslaughter, law enforcement, Mount Vernon Criminal Defense Attorney, Search and Seizure, Skagit County Criminal Defense, Violent Crime, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Related image

In State v. Boisselle, the WA Supreme Court held a police officer’s warrantless entry into the defendant’s duplex in this case violated article I, section 7 of the WA Constitution because their emergency aid function search was a unlawful pretext for a criminal investigation as the officers were suspicious, if not convinced, that a crime had taken place before entering the unit.

BACKGROUND FACTS

Law enforcement officers were dispatched to Mr. Boisselle’s home after two anonymous 911 calls reported that a man shot and possibly killed someone at the residence. While responding to the calls, the officers learned that the residence was related to an ongoing missing person/homicide investigation. Unable to determine whether someone was alive inside the home, the officers entered the residence and conducted a warrantless search, discovering evidence of a murder therein. Boisselle  was arrested and jailed.

Boisselle moved to suppress the evidence, arguing that the officers’ warrantless search was unlawfully pretextual  under article I, section 7 of the Washington Constitution. The trial court denied Boisselle’s motion, concluding that the officers’ search fell within the emergency aid function of the community caretaking exception to the warrant requirement. Following a jury trial, Boisselle was convicted of second degree murder and second degree unlawful possession of a firearm. The Court of Appeals affirmed his convictions.

COURT’S ANALYSIS & CONCLUSIONS

I. The Community Caretaking Exception

First, the WA Supreme Court agreed that the application of the community caretaking exception has become muddled, and took this opportunity to clarify the appropriate factors in determining whether an officer has exercised his or her emergency aid community caretaking function.

“The community caretaking exception is one such exception to the warrant requirement,” said the Court. “Under the community caretaking exception, law enforcement officers may make a limited invasion of constitutionally protected privacy rights when it is necessary for officers to perform their community caretaking functions.” The Court explained this exception recognizes that law enforcement officers are “jacks of all trades” and frequently engage in community caretaking functions that are unrelated to the detection and investigation of crime, including delivering emergency messages, giving directions, searching for lost children, assisting stranded motorists, and rendering first aid.

Next, the Court created the following multi-part test for evaluating whether an officer exercised his or her community caretaking function when conducting a warrantless search:

(1) Was the community caretaking exception used as a pretext for criminal investigation? If the court finds pretext, the analysis ends. If the court determines that the exception was not a pretext, the analysis continues is question is answered negatively, the analysis continues.

(2)(a) If the search fell within an officer’s general community caretaking function, such as the performance of a routine check on health or safety, the court must determine whether the search was “reasonable.” “Reasonableness” depends upon a balancing of a citizen’s privacy interest in freedom from police intrusion against the public’s interest in having police perform a community caretaking function.

(2)(b) If the search fell within an officer’s emergency aid function which arises from a police officer’s community caretaking responsibility to come to the aid of persons believed to be in danger of death or physical harm, the court, before determining whether the search is “reasonable,” must first determine whether: “(1) the officer subjectively believed that an emergency existed requiring that he or she provide immediate assistance to protect or preserve life or property, or to prevent serious injury, (2) a reasonable person in the same situation would similarly 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.”

II. The Warrantless Search of Boisselle’s Home Was Pretextual.

The Court reasoned that an unlawful pretextual search occurs when occurs when officers rely on some legal authorization as a mere pretense to dispense with a warrant when the true reason for the seizure is not exempt from the warrant requirement. When determining whether a given search is pretextual, the court should consider the totality of the circumstances, including both the subjective intent of the officer as well as the objective reasonableness of the officer’s behavior.

“Viewing the totality of the circumstances, we are unconvinced that the officers’ search of Boisselle’s home was not a pretext for a criminal investigation.”

The Court reasoned that here, law enforcement’s involvement began because of two anonymous 911 calls reporting a crime. When the officers arrived at Boisselle’s duplex unit, they noticed a smell that could be attributed to a decomposing body, and they sought to confirm whether a crime had been committed or if a crime victim was inside. The officers were eventually able to see into the unit and saw signs of a struggle and missing carpet, which could be a sign that someone sought to cover up a crime scene.

“Taken together, these facts demonstrate that the officers were suspicious, if not convinced, that a crime had taken place,” said the Court. “Because of the officers significant suspicions, the search of Boisselle’s home was necessarily associated with the detection and investigation of criminal activity.”

Accordingly, the Court held the officers’ warrantless search did not fall under the emergency aid function of the community caretaking exception, and it violated article I, section 7 of the WA Constitution. Thus, the trial court erred in denying Boisselle’s motion to suppress. “We reverse the Court of Appeals and remand to the trial court for further proceedings,” said the Court.

My opinion? Grisly as the facts appear to be, the Court reached the right decision. Freedom from government intrusion lies at the very foundation of Western law and culture, and is one of our nation’s most cherished freedoms. That’s why we insist on police obtaining warrants, unless exigent circumstances dictates otherwise.

Please read my Search and Seizure Legal Guide and contact my office if you, a friend or family member were charges with a crime involving an unlawful pretextual search. Hiring competent defense counsel is the first and best step toward achieving justice.