Category Archives: Search and Seizure

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stop made after running the vehicle’s license plate and learning that the registered owner’s driver’s license has been revoked is reasonable under the Fourth Amendment.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on a pickup truck, discovering that the truck belonged to respondent Glover and that Glover’s driver’s license had been revoked.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

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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, , , , ,

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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

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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.

Exigent Circumstances Support Warrantless Blood Draw

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In State v. Anderson, the WA Court of Appeals held that exigent circumstances supported a warrantless blood draw at the scene from a driver arrested for vehicular homicide and vehicular assault.

BACKGROUND FACTS

In October 2014, Anderson was living with his high school friend, Mr. Powers. Powers would occasionally let Anderson drive his car. The evening of October 24, 2014, Anderson drank at home and then went to a bar to watch a hockey game. About 12:30 am., Powers heard Anderson’s voice and then heard his car start. Anderson took Powers’s car without his permission.

Around 2:00 a.m., Sergeant Jamie Douglas responded to a multivictim car crash in Auburn. At the scene, Douglas saw an “obliterated” car off the roadway, a path of debris, an uprooted tree with an 18-inch base, uprooted utility boxes, and guy wires that had been supporting a telephone pole torn out of the ground. The speed limit on the road was 35 m.p.h. but, based on the scene, Douglas estimated the car was traveling close to 100 mph.

Deputy Jace Hoch had observed the car earlier traveling at about 90 mph. but could not catch it. He asked dispatch to let the Auburn Police Department know that the car was heading toward Auburn. Four of the five passengers in the car died.

Multiple individuals who responded to the scene smelled alcohol on Anderson. Anderson told paramedic Paul Nordenger that he had had “a few drinks.” Nordenger drew Anderson’s blood at the scene without a warrant. Test results showed that his blood alcohol content (BAC) was 0.19 grams of alcohol per 100 milliliters of blood and that he had 2.0 nanograms of THC (tetrahydrocannabinol) per milliliter. Anderson was taken to Harborview Medical Center. Toxicologist Asa Louis testified that a second blood draw taken there showed a BAC of 0.18.

The State charged Anderson with four counts of vehicular homicide, one count of vehicular assault, one count of reckless driving, and an a sentencing aggravator for injury to the victim substantially exceeding the level of bodily harm necessary to satisfy the elements of vehicular assault. A jury convicted Anderson as charged.

Among other issues, Anderson claimed that exigent circumstances did not exist for officers to conduct a warrantless blood draw at the scene.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that as a general rule, warrantless searches and seizures are per se unreasonable, in violation of the Fourth Amendment and article I, section 7 of the Washington State Constitution. A blood test is a search and seizure. A recognized exception to the warrant requirement allows a warrantless search or seizure when exigent circumstances exist.

“A court examines the totality of the circumstances to determine whether they exist,” said the Court. “They exist where the delay necessary to obtain a warrant is not practical because the delay would permit the destruction of evidence.” Furthermore, the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, for example, when delay results from the warrant application process.”

Next, the Court of Appeals’ legal analysis focused on prior cases U.S. Supreme Court and WA Supreme Court cases. It observed that Missouri v. McNeely upheld the proposition that the presence of other officers weighs against the conclusion that exigent circumstances existed. Also, in State v. Inman, the WA Court of Appeals held that exigent circumstances for a blood draw existed when Mr.  Inman crashed his motorcycle on a rural road, injuring him and his passenger. In that case, Inman had facial trauma; including bleeding and abrasions on the face, and a deformed helmet. A bystander told police that Inman had been unconscious for five minutes before regaining consciousness. A paramedic administered emergency treatment. A responding officer spoke with lnman and smelled intoxicants on him. Finally, Inman admitted that he had been drinking before driving his motorcycle.

“The circumstances here are more like those in Inman,” said the Court of Appeals. “Similar to Inman, the trial court found that Anderson was in a high-impact collision resulting in serious injuries.  Here, Mr. Anderson sustained serious injuries that required treatment, multiple responders smelled alcohol on him, he told an officer at the scene that he had been drinking before driving, a paramedic told the first responding officer that the medics would be giving the driver medication and intubating him, the first responding officer knew from his experience in law enforcement and as a paramedic that this emergency treatment could impair the integrity of the blood sample, and that it would take 40 to 90 minutes to obtain a warrant for a blood draw.

“A warrant was not practical because the delay caused by obtaining a warrant would result in the destruction of evidence or postpone Anderson’s receipt of necessary medical care,” reasoned the Court of Appeals. “The totality of the circumstances establish that exigent circumstances existed to justify a warrantless blood draw.”

Please contact my office of you, a friend or family member are charged with an alcohol-related driving charge and police execute a warrantless blood draw. Retaining an experienced DUI attorney who is experienced with the legalities of blood draws is the first and best step toward obtaining justice.

Bellingham Police Department Conducts Distracted Driving Emphasis

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Put the cell phone away.

The Bellingham Police Department tweeted and facebooked notice that there will be a distracted driving emphasis on Friday, August 16th from 10:00am-2:00pm. Areas of emphasis are Lakeway/Ellis Streets and Holly Street to State Street.

Distracted driving — when drivers eat, put on makeup or text — causes more than 3,000 deaths a year. The National Highway Traffic Administration says it also costs $46 billion annually for everything from injuries to vehicle repairs, and of course, lost productivity due to death. With the exception of Montana and Arizona, texting while driving is illegal in every state, but unless police catch you in the act, it can be very hard to prove.

Additionally, depending on the circumstances, officers may develop probable cause to conduct a DUI investigation and/or search your vehicle for contraband or evidence of a crime.

Please contact my office if you, a friend or family member face criminal charges after being stopped for distracted driving. The charges could be dismissed if the search was pretextual and/or unlawful. Hiring a competent and credible defense attorney who is fluent in pretrial motions practice is the first and best step toward getting justice.

Court Denies “Community Caretaking” Argument

Bellingham Defense Attorney, Constitutional Rights, Evidence, felony, Fourth Amendment, Mount Vernon Criminal Defense Attorney, Possession of Stolen Motor Vehicle, Search and Seizure, Search Warrant, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

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In State v. Beach, the WA Court of Appeals upheld the dismissal of a defendant’s Possession of Stolen Vehicle charges because the police failed to obtain a search warrant and the Community Custody Exception to the warrant requirement did not apply.

BACKGROUND FACTS

On November 27, 2017, a person called 911 to report a young child walking by himself. Officer Nixon responded to the 911 report, and took custody of the child. Officer Nixon decided to drive around the neighborhood to look for the child’s home.

Eventually, the officer saw a house with its front door open. He ran the license plate of the car in the driveway and learned that the car had been reported stolen. He called for backup. At that point, the officer’s interest in determining whether the child lived at the house was secondary to figuring out if this was a home invasion robbery.

Officers arrived. They surrounded the house, with one or two officers going to the back of the house in case someone tried to exit from the back door. Officers knocked loudly on the outside of the house and announced themselves for approximately 30 seconds. When there was no answer, they drew their guns and entered the house, yelling, “This is the Kent Police Department. Come out with your hands up!”

Mr. Beach and his girlfriend Ms. Hall emerged from a rear bedroom. They said that they were sleeping. The officers discovered the couple had outstanding warrants. The officers arrested Beach and Hall. While searching Beach upon arrest, the police found a key to the stolen car in the driveway.

The State charged Beach with one count of possession of a stolen vehicle. Beach moved to suppress any evidence resulting from the warrantless search.

The State argued that the warrantless search was valid under the community caretaking exception because there was real and immediate danger of an ongoing home invasion. The trial court conducted a hearing pursuant to CrR 3.6. After hearing testimony by officers, the court found that the State had not established that the officers were acting within the scope of their community caretaking function, and suppressed the evidence.

Beach moved to dismiss and the court granted the motion. The State appealed.

COURT’S RATIONALE & CONCLUSIONS

The WA Court of Appeals explained that the United States Constitution prohibits unreasonable searches and seizures. Also, the WA constitution is often more protective than the Fourth Amendment, particularly where warrantless searches are concerned.

“Under our state constitution, warrantless searches are per se unreasonable unless one of the narrow exceptions to the warrant requirement applies,” said the Court. “The burden of proof is on the State to show that a warrantless search or seizure falls within one of the exceptions to the warrant requirement.”

A. Community Caretaking Exception to the Warrant Requirement.

The Court said the community caretaking function exception encompasses situations involving emergency aid, and also routine checks on health and safety. Compared with routine checks on health and safety, the emergency aid function involves circumstances of greater urgency and searches resulting in greater intrusion.

Under the health and safety check test, the State must show that (1) the officer subjectively believed someone needed health or safety assistance, (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.

Also, the State must also show that the encounter under this exception was reasonable, which depends on 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. Finally, the State must show that a reasonable person in the same situation would believe that there was a need for assistance.

The Court reasoned that here, there was a 911 report about a child wandering blocks away. When Nixon stopped his police car outside of the residence, the child did not indicate that he had any connection to the house. No connection between the child and the house was established until after the officers entered. “Any concern for the child was not an ongoing emergency that would merit the officers going into the home,” said the Court.

And here, the officers did not know of any requests for help from the house before they entered. They did not know anyone was unaccounted for and saw no evidence anyone had been injured. The officers did not see any broken windows, signs of forced entry, or other evidence of a break-in. Once in the doorway, Officer Nixon did not see anything in disarray inside the home that would indicate a struggle or ongoing emergency. When the officers went into the home, the house was in “fine condition.”

Consequently, the Court of Appeals upheld the trial court’s decision that the community caretaking exception to the warrant requirement did not apply and suppressed the evidence.

Please read my Legal Guide titled Search and Seizure and contact my office if you, a friend or family member are charged with a crime and police conducted their search under the “Community Caretaking” exception to the warrant requirement. Possibly, evidence obtained through the search could be suppressed and the charges dismissed.

Drunk Bicycling

Bellingham Defense Attorney, DUI, False Arrest, Fourth Amendment, Mount Vernon Criminal Defense Attorney, Pretext, Search and Seizure, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

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Great article by traffic reporter Doug Dahl of the Bellingham Herald reveals that it’s legal to text while riding bike on a public road. In short, Washington’s distracted driving law applies to any person that is driving a motor vehicle on a public highway.

“Since a bike isn’t a motor vehicle, this law, as I understand it, doesn’t apply,” says Mr. Dahl. “When it comes to texting (arguably one of the more dangerous behaviors on the road) cyclists get a pass.”

Mr. Dahl is correct. While some states do have laws against cycling while impaired, Washington is not one of those states. In City of Montesano vs. Wells, the WA Court of Appeals reversed the conviction of a man charged with DUI while riding a bicycle and held the original intent of DUI laws did not include bicycles. The Court reasoned that because bicycles do not have the force and speed of cars, a drunk bicyclist is not capable of causing the tremendous “carnage and slaughter” associated with impaired driving.

My opinion? Although it’s not a wise decision to text while cycling, police cannot stop or arrest bicyclists for this traffic offense alone. In State v. Ladson, the WA Supreme Court held that our State Constitution forbid the use of pretext as a justification for a warrantless search or seizure. Applied here, in other words, police cannot pull you over to conduct an unlawful pretext search for weapons, drugs or any other contraband if they see you merely texting while riding a bicycle.

Please read my Search and Seizure Legal Guide and contact my office if you, a friend or family member are pulled over, searched and/or arrested for texting while riding a bicycle. Hiring an effective and competent defense attorney is the first and best step toward justice.

Terry Stop Held Unlawful

9th Circuit Court of Appeals, Bellingham Defense Attorney, Constitutional Rights, Federal Crimes & Prosecutions, Fourth Amendment, Mount Vernon Criminal Defense Attorney, police, Race & Law, Reasonable Suspicion, Search and Seizure, Skagit County Criminal Defense, Terry Stop, Whatcom County Criminal Defense, , , , ,

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In United States v. Brown, the Ninth Circuit Court of Appeals held that an anonymous tip that a person saw a black male with a gun does not provide reasonable suspicion to make a Terry stop in Washington, where possession of a firearm is presumptively lawful.

BACKGROUND FACTS

Mr. Brown, who is a black man, had the misfortune of deciding to avoid contact with the police. Following an anonymous tip that a black man was carrying a gun—which is not a criminal offense in Washington State—police spotted Brown, who was on foot, activated their lights, and pursued him by car, going the wrong direction down a one-way street. Before flashing their lights, the officers did not order or otherwise signal Brown to stop. Brown reacted by running for about a block before the officers stopped him at gunpoint.

Police pursued Brown for one block before stopping him and ordering him to the ground at gunpoint. The officers placed Brown in handcuffs and found a firearm in his waistband. A further search revealed drugs, cash, and other items.

Police seized Mr. Brown even though there was no reliable tip, no reported criminal activity, no threat of harm, no suggestion that the area was known for high crime or narcotics, no command to stop, and no requirement to even speak with the police.

Brown moved to suppress the evidence from the searches, arguing that the officers lacked reasonable suspicion to stop him under Terry v. Ohio. The district court disagreed and denied the motion.

ISSUE

Whether police officers were justified in briefly stopping and detaining Mr. Brown.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that an an officer may only conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.  Illinois v. Wardlow.

“Here, the lack of facts indicating criminal activity or a known high crime area drives our conclusion. The Metro officers who stopped Brown took an anonymous tip that a young, black man “had a gun”—which is presumptively lawful in Washington—and jumped to an unreasonable conclusion that Brown’s later flight indicated criminal activity. At best, the officers had nothing more than an unsupported hunch of wrongdoing.”

With that, the court reasoned that the circumstances of this case fails to satisfy the standard established by Terry and Wardlow. “The combination of almost no suspicion from the tip and Brown’s flight does not equal reasonable suspicion.”

Furthermore, the Court reasoned that in Washington State, it is lawful to carry a gun. Although carrying a concealed pistol without a license is a misdemeanor offense in Washington,  the failure to carry the license is simply a civil infraction.

Additionally, the Court of Appeals downplayed Brown running from police. “No one disputes that once the Metro officer activated his patrol car lights, Brown fled,” said the Court. “But the Supreme Court has never endorsed a per se rule that flight establishes reasonable suspicion. Instead, the Court has treated flight as just one factor in the reasonable suspicion analysis, if an admittedly significant one. “Notably, the officers did not communicate with Brown, use their speaker to talk with him, or tell him to stop before they flashed their lights and then detained him,” said the Court. “Under these circumstances, Brown had no obligation to stop and speak to an officer.”

My opinion? Good decision. Please read my Search and Seizure Legal Guide contact my office if you, a friend or family member are charged with a crime under circumstances where the police may have conducted an unlawful search or seizure. Hiring competent defense is the first and best step toward gaining justice.