Category Archives: Search and Seizure

Praying While Arrested

42 U.S.C. § 1983, Bellingham Defense Attorney, Constitutional Rights, Disorderly Conduct, First Amendment, Fourth Amendment, Obstructing, Qualified Immunity, Search and Seizure, Skagit County Criminal Defense, Uncategorized, United States Supreme Court, Whatcom County Criminal Defense, , , , ,

Image result for praying while handcuffed

In Sause v. Bauer, the United States Supreme Court held that a police officer may lawfully prevent a person from praying at a particular time and place, such as when a suspect who is under arrest seeks to delay the trip to the jail by insisting on first engaging in conduct that, at another time, would be protected by the First Amendment.

BACKGROUND FACTS

Petitioner Mary Ann Sause filed this civil rights action under U. S. C. §1983, and named the Louisburg, Kansas, police department as the defendant/respondent in the lawsuit.

The centerpiece of Ms. Sause’s complaint was the allegation that two of the town’s police officers visited her apartment in response to a noise complaint, gained admittance to her apartment, and then proceeded to engage in a course of strange and abusive conduct, before citing her for disorderly conduct and interfering with law enforcement.

At one point, Ms. Sause knelt and began to pray. However, one of the officers ordered her to stop. She also claimed that officers refused to investigate her complaint that she was assaulted by residents of her apartment complex, and that officers threatened to issue a citation if she reported this to another police department. In addition, she alleged that the police chief failed to follow up on a promise to investigate the officers’ conduct.

Ms. Sause’s complaint asserted a violation of her First Amendment right to the free exercise of religion and her Fourth Amendment right to be free of any unreasonable search or seizure. The defendants moved to dismiss the complaint for failure to state a claim on which relief may be granted, arguing that the defendants were entitled to qualified immunity. The Federal District Court granted the motion to dismiss her lawsuit.

Ms. Sause appealed, however, the Court of Appeals for the Tenth Circuit affirmed the decision of the District Court, concluding that the officers were entitled to qualified immunity.

COURT’S ANALYSIS AND CONCLUSIONS

“There can be no doubt that the First Amendment protects the right to pray,” said the Court. “Prayer unquestionably constitutes the “exercise” of religion.” The Supreme Court also reasoned that at the same time, there are clearly circumstances in which a police officer may lawfully prevent a person from praying at a particular time and place. “For example, if an officer places a suspect under arrest and orders the suspect to enter a police vehicle for transportation to jail, the suspect does not have a right to delay that trip by insisting on first engaging in conduct that, at another time, would be protected by the First Amendment.”

Furthermore, the Court also reasoned that when an officer’s order to stop praying is alleged to have occurred during the course of investigative conduct that implicates Fourth Amendment rights, the First and Fourth Amendment issues may be inextricable.

The court ruled that in this case, it was is unclear whether the police officers were in Ms. Sause’s apartment at the time in question based on her consent, whether they had some other ground consistent with the Fourth Amendment for entering and remaining there, or whether their entry or continued presence was unlawful. The Court found that Ms. Sause’s complaint contains no express allegations on these matters. “Nor does her complaint state what, if anything, the officers wanted her to do at the time when she was allegedly told to stop praying. Without knowing the answers to these questions, it is impossible to analyze petitioner’s free exercise claim.”

Despite agreeing with the Government on this issue, the Supreme Court nevertheless reversed the judgment of the Tenth Circuit which dismissed Ms. Sause’s case and remanded her case back to federal court for further proceedings consistent with this opinion.

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

Celebrate the Fourth of July Responsibly

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, DUI, felony, Knock & Talk, law enforcement, marijuana, misdemeanor, police, Probable Cause, Reasonable Suspicion, Search and Seizure, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , , ,

Image result for fourth of july drugs alcohol

When celebrating holidays, many people gather with friends and family, decorating their homes and enjoying time together. However, some holiday celebrations often include consuming substances like illegal drugs and alcohol.

In 2016, Americans spent more than $1 billion on cold beverages for their Fourth of July celebrations. That amount was higher than what was spent on burgers and hotdogs, combined. According to CNBC, the Fourth of July is the country’s largest beer-drinking holiday. The popular holiday also surpassed New Year’s as the most dangerous holiday of the year, especially when it comes to traveling on the roadways. According to the Los Angeles Times, there was an average of 127 fatal car crashes each year on July 4 between 2008 and 2012. Of those who died, 41 percent of people had elevated blood alcohol levels.

So how did the day that was meant to celebrate America’s birthday become a day where people choose to drink? The Fourth of July is a federal holiday, which means that most businesses are closed and the employees of those businesses get to enjoy the day off. Jeffrey Spring, a spokesman for the Automobile Club of Southern California, told the Los Angeles Times that it’s more than just celebrating a day off of work. “They tend to try to cram a lot into these weekends and that’s where they get into trouble,” Spring said. In other words, a paid holiday is taken to new heights due to the excitement of having a free day to themselves.

Some advice? Please remember that beneath all the celebration, the Fourth of July is more than just about alcoholic drinks and setting off fireworks. In 1776, the thirteen American colonies declared themselves independent from the British Empire, thus the United States of America was born. Also known as Independence Day, the day celebrates the birth of the country. It can be commemorated in speeches presented by politicians, celebrities hosting private events, or military personnel saluting the United States at noon on the holiday by shooting off a rifle.

The Fourth of July is important to celebrate for its historical significance. This holiday is a time to remind people not only of the hard work and dedication it took to become the country that the United States is today, but to encourage people to live their lives to their fullest potential.

Don’t let the Fourth of July become a catalyst for illegal behavior.

However, please call my office if you, a friend or family member consume intoxicants this Fourth of July and later find yourselves facing criminal charges. It’s imperative to hire responsive and experienced defense counsel when contacted by law enforcement.

Search Within Curtilage

Bellingham Defense Attorney, Evidence, felony, Fourth Amendment, Property Crimes, Search and Seizure, Search Warrant, Skagit County Criminal Defense, United States Supreme Court, Whatcom County Criminal Defense, , , , ,

Image result for officer search under tarp

In Collins v. Virginia, the United States Supreme Court held that officers may not enter the curtilage of a house without a search warrant in order to remove the tarp from a motorcycle in order to confirm that the motorcycle was stolen.

BACKGROUND FACTS

During the investigation of two traffic incidents involving an orange and black motorcycle with an extended frame, Officer David Rhodes learned that the motorcycle likely was stolen and in the possession of petitioner Ryan Collins. Officer Rhodes discovered photographs on Collins’ Facebook profile of an orange and black motorcycle parked in the driveway of a house, drove to the house, and parked on the street. From there, he could see what appeared to be the motorcycle under a white tarp parked in the same location as the motorcycle in the photograph.

Without a search warrant, Office Rhodes walked to the top of the driveway, removed the tarp, confirmed that the motorcycle was stolen by running the license plate and vehicle identification numbers, took a photograph of the uncovered motorcycle, replaced the tarp, and returned to his car to wait for Collins. When Collins returned, Officer Rhodes arrested him.

Collins was indicted by a Virginia grand jury for receiving stolen property. He filed a pretrial motion to suppress the evidence that Officer Rhodes had obtained as a result of the warrantless search of the motorcycle on the grounds that Officer Rhodes violated the Fourth Amendment when he trespassed on the house’s curtilage to conduct a search. The trial court denied Collins’ motion to suppress the evidence. Collins was convicted as charged. The Virginia Court of Appeals affirmed. The Virginia State Supreme Court also affirmed, holding that the warrantless search was justified under the Fourth Amendment’s automobile exception to the warrant requirement.

COURT’S ANALYSIS & CONCLUSIONS

The Supreme Court held the automobile exception to the warrant requirement does not permit the warrantless entry of a home or its curtilage in order to search a vehicle therein.

“This case arises at the intersection of two components of the Court’s Fourth Amendment jurisprudence: the automobile exception to the warrant requirement and the protection extended to the curtilage of a home.”

Justice Sotomayor delivered the opinion of the Court. First, the court discussed the automobile exception to the warrant requirement. Basically, under the exception, a vehicle may be searched without a warrant when the evidence or contraband may possibly be removed from the scene due to the mobility of a vehicle and it is not practical to secure a warrant without jeopardizing the potential evidence.  For instance, the automobile exception allows an officer to make a warrantless traffic stop and search a truck of a vehicle when gun parts were observed in plain view on the front seat of the vehicle.

Here, the Supreme Court emphasized that the automobile exception rationales applied only to automobiles and not to houses, and therefore supported their different treatment as a constitutional matter. “When these justifications are present, officers may search an automobile without a warrant so long as they have probable cause,” said the Court.

The court also discussed “curtilage.” In short, curtilage includes the area immediately surrounding a dwelling, and it counts as part of the home for many legal purposes, including searches. “Curtilage—the area immediately surrounding and associated with the home—is considered part of the home itself for Fourth Amendment purposes,” said the Court. Thus, when an officer physically intrudes on the curtilage to gather evidence, a Fourth Amendment search has occurred and is presumptively unreasonable absent a warrant.

Consequently, the court reasoned that the part of the driveway where Collins’ motorcycle was parked and subsequently searched is curtilage:

“When Officer Rhodes searched the motorcycle, it was parked inside a partially enclosed top portion of the driveway that abuts the house. Just like the front porch, side garden, or area outside the front window, that enclosure constitutes an area adjacent to the home and to which the activity of home life extends.” Jardines, 569 U. S., at 6, 7.”

The Court also reasoned because the scope of the automobile exception extends no further than the automobile itself, it did not justify Officer Rhodes’ invasion of the curtilage. “Nothing in this Court’s case law suggests that the automobile exception gives an officer the right to enter a home or its curtilage to access a vehicle without a warrant,” said the Court. “Such an expansion would both undervalue the core Fourth Amendment protection afforded to the home and its curtilage and untether the exception from the justifications underlying it.”

This Court also reasoned that just as an officer must have a lawful right of access to any contraband he discovers in plain view in order to seize it without a warrant, and just as an officer must have a lawful right of access in order to arrest a person in his home, so, too, an officer must have a lawful right of access to a vehicle in order to search it pursuant to the automobile exception. “To allow otherwise would unmoor the exception from its justifications, render hollow the core Fourth Amendment protection the Constitution extends to the house and its curtilage, and transform what was meant to be an exception into a tool with far broader application,” said the Court.

Furthermore, the Court disagreed with Virginia’s proposed bright line rule for an automobile exception that would not permit warrantless entry only of the house itself or another fixed structure, e.g., a garage, inside the curtilage. “This Court has long been clear that curtilage is afforded constitutional protection, and creating a carve-out for certain types of curtilage seems more likely to create confusion than does uniform application of the Court’s doctrine,” said the Court. “Virginia’s rule also rests on a mistaken premise, for the ability to observe inside curtilage from a lawful vantage point is not the same as the right to enter curtilage without a warrant to search for information not otherwise accessible.”

Finally, the Court held that Virginia’s rule automatically would grant constitutional rights to those persons with the financial means to afford residences with garages but deprive those persons without such resources of any individualized consideration as to whether the areas in which they store their vehicles qualify as curtilage.

With that, the Supreme Court reversed and remanded Collins’ conviction for receiving stolen property.

Justice Roberts, Kennedy, Thomas, Ginsberg, Breyer, Kagan and Gorsuch joined the majority opinion.  Justice Thomas also filed a concurring opinion. Justice Alito filed a dissenting opinion.

Please contact my office if you, a friend or family member’s house is searched by law enforcement officers who don’t have a search warrant. It’s quite possible to suppress evidence based on an unlawful search and get any criminal charges dismissed.

Search of Rental Cars

Bellingham Defense Attorney, Drug Offenses, Federal Crimes & Prosecutions, Fourth Amendment, Search and Seizure, Skagit County Criminal Defense, Uncategorized, United States Supreme Court, Whatcom County Criminal Defense, , , , ,

Image result for rental car

In Byrd v. United States, the United States Supreme Court held that while a car thief does not have right to privacy in a stolen car no matter the degree of possession and control, the driver of a rental car can challenge a warrantless search of the vehicle even if the driver is not listed as an authorized driver on the rental agreement.

BACKGROUND FACTS

Latasha Reed rented a car in New Jersey while petitioner Terrence Byrd waited outside the rental facility. Her signed agreement warned that permitting an unauthorized driver to drive the car would violate the agreement. Reed listed no additional drivers on the form, but she gave the keys to Byrd upon leaving the building. He stored personal belongings in the rental car’s trunk and then left alone for Pittsburgh, Pennsylvania.

Pennsylvania State Troopers stopped Byrd for a traffic infraction. They learned that the car was rented, that Byrd was not listed as an authorized driver, and that Byrd had prior drug and weapons convictions. Byrd also stated he had a marijuana cigarette in the car.

The troopers proceeded to search the car, discovering body armor and 49 bricks of heroin in the trunk. The evidence was turned over to federal authorities, who charged Byrd with distribution and possession of heroin with the intent to distribute in violation of 21 U. S. C. §841(a)(1) and possession of body armor by a prohibited person in violation of 18 U. S. C. §931(a)(1). The District Court denied Byrd’s motion to suppress the evidence as the fruit of an unlawful search, and the Third Circuit affirmed. Both courts concluded that, because Byrd was not listed on the rental agreement, he lacked a reasonable expectation of privacy in the car.

COURT’S ANALYSIS AND CONCLUSIONS

In a unanimous decision favoring Byrd, Justice Anthony Kennedy wrote, “The mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy.”

The Court added that there can be numerous reasons why a driver unlisted on a rental contract may need to drive the rental car, and that the government had not shown that whether the simple breach of the rental contract would affect the expectation of privacy.

Also, the Court reasoned that one of the main rights attaching to property is the right to exclude others. Also, one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of the right to exclude. “This general property-based concept guides resolution of the instant case,” said Justice Kennedy:

“The Government’s contention that drivers who are not listed on rental agreements always lack an expectation of privacy in the car rests on too restrictive a view of the Fourth Amendment’s protections. But Byrd’s proposal that a rental car’s sole occupant always has an expectation of privacy based on mere possession and control would, without qualification, include thieves or others who have no reasonable expectation of privacy.”

The Court rejected the Government’s arguments that an unauthorized driver has no privacy interest in the vehicle. Byrd, in contrast, was the rental car’s driver and sole occupant. His situation is similar to the defendant in Jones v. United States, who had a reasonable expectation of privacy in his friend’s apartment because he had complete dominion and control over the apartment and could exclude others from it:

“The expectation of privacy that comes from lawful possession and control and the attendant right to exclude should not differ depending on whether a car is rented or owned by someone other than the person currently possessing it, much as it did not seem to matter whether the defendant’s friend in Jones owned or leased the apartment he permitted the defendant to use in his absence.”

The Court also rejected the Government’s argument that Byrd had no basis for claiming an expectation of privacy in the rental car because his driving of that car was so serious a breach of Reed’s rental agreement that the rental company would have voided the contract once he took the wheel. “But the contract says only that the violation may result in coverage, not the agreement, being void and the renter’s being fully responsible for any loss or damage,” said Justice Kennedy. “And the Government fails to explain what bearing this breach of contract, standing alone, has on expectations of privacy in the car.”

Kennedy’s decision concluded that there remained two issues which the Supreme Court remanded back to the lower courts: (1) whether Officer Long had probable cause to search the car in the first place, and (2) whether Byrd intentionally used a third party as a straw man in a calculated plan to mislead the rental company from the very outset, all to aid him in committing a crime.

With that, the Supreme Court vacated Byrd’s conviction and remanded back to the Third Circuit Court of Appeals.

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.

Inventory Searches of Cars

9th Circuit Court of Appeals, Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Federal Crimes & Prosecutions, Inventory Searches, Pretext, Probable Cause, Search and Seizure, Search Warrant, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Image result for surrounded by police cars

In United States v. Johnson, the Ninth Circuit Court of Appeals held that a suspicionless inventory search is only proper when it is performed to secure and to protect an arrestee’s property and to protect the police department against fraudulent claims of lost or stolen property. Evidence removed from the defendant’s car could not be justified under the inventory-search doctrine where the officers explicitly admitted that they seized the items in an effort to search for evidence of criminal activity.

BACKGROUND FACTS

On April 10, 2014, Multnomah County Sheriff’s deputies located Mr. Johnson—who had an outstanding warrant for his arrest based on a post-prison supervision violation—at the Clackamas Inn, just south of Portland, Oregon. The deputies followed Johnson to a residence in the nearby town of Gladstone and called Portland Police Bureau (PPB) Officers Corona and Ables for assistance in arresting him.

The officers did not approach Johnson at the residence, but instead waited outside. After about 20 minutes, Johnson left, and again the officers followed him. At a nearby intersection, the officers finally stopped Johnson by loosely boxing in his car; one car approached Johnson from behind while another approached from the front, effectively blocking Johnson’s ability to drive away. The cars all came to a stop within a few feet of each other, and although there was enough room for Johnson to pull his car to the side of the road, he instead parked in the lane of traffic, disrupting the flow of passing cars. When approached by the officers, Johnson could not provide proof of insurance for the car, which he was borrowing, nor could he give anything other than the first name of the car’s owner. Johnson did not know how the police could contact the owner.

The officers arrested Johnson on the outstanding warrant. After the arrest, the officers searched Johnson and found a folding knife in his front pocket, $7,100 in cash in $20 and $100 denominations in his rear pants pocket, and $150 in cash in his wallet. Johnson said that he had recently inherited the $7,100 and that he planned to purchase a car with it.

Because Johnson’s car was blocking traffic and because Johnson could not provide contact information for the car’s owner, the officers ordered it to be towed and impounded, pursuant to PPB policy. Prior to the tow, the officers conducted an inventory search of the car, again pursuant to local policy. From the interior of the car, the officers collected a combination stun gun and flashlight, a glass pipe with white residue, a jacket, and two cellphones. From the trunk, the officers collected a backpack and a duffel bag. Officer Corona testified that, when he moved the backpack and duffel in order to search for other items in the trunk, the bags felt heavy and the backpack made a metallic “clink” when he set it down on the pavement. PPB stored each of the seized pieces of property in the County property and evidence warehouse, and the $7,100 was taken into custody by the County Sherriff’s Office. Officer Corona recorded each item seized on an accompanying arrest report; the Sheriff’s Office prepared a property receipt for the $7,100 in seized cash.

A week later, Officer Corona submitted an affidavit to secure a warrant to search the seized backpack, duffel bag, and cell phones. The affidavit referred to a 2009 police report (which Corona read after arresting Johnson) that stated Johnson had previously been found with cash, weapons, and drugs in a safe concealed in his vehicle. Officer Corona’s affidavit stated that, based on the circumstances of Johnson’s recent arrest, he had probable cause to believe the bags seized from the trunk would contain similar lockboxes, and that the phones would contain evidence of drug dealing.

A warrant was duly signed by a local magistrate judge, and a search of the backpack revealed a small safe containing two bags of methamphetamine, drug-packaging materials, syringes, and a digital scale. The duffel bag contained Johnson’s personal items, and one of the cellphones contained text messages regarding drug trafficking.

Johnson was indicted on one charge of possession with intent to distribute methamphetamine in an amount of 50 grams or more, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii).

Before trial, Johnson moved to suppress the evidence found in the car and on his person at arrest. Primarily, Johnson challenged the evidence supporting the warrant to search the backpack and cellphones, arguing that it did not amount to probable cause. Johnson also argued that the officers unlawfully manipulated the bags they seized from the car in order to get a sense for what they might contain and that the inventory search of his car was invalid.

The federal district court denied the motion, concluding that there was probable cause to stop and to arrest Johnson on the outstanding warrant, the officers validly impounded Johnson’s car because it was blocking traffic, the subsequent inventory of the vehicle was “lawful because PPB mandates officers to conduct an inventory of impounded vehicles,” and the search warrant was supported by probable cause.

At trial, the government introduced the evidence found in Johnson’s car and on his person, with a particular focus on the items of evidence found in the backpack, the messages from the cellphone, and the $7,100 in cash. The jury found him guilty.

Approximately four months later, Johnson filed a motion for new trial on the basis of, among other things, two pieces of supposedly newly discovered evidence: (1) evidence showing that Johnson had indeed recently received an inheritance; and (2) a receipt from the private company that towed and impounded his car, which stated that they found various additional items of property in the car that were not listed in Officer Corona’s arrest report. After a hearing, the district court denied the motion for a new trial upon the conclusion that none of the supposedly new evidence would have resulted in a likely acquittal.

Johnson was sentenced to 188 months in prison, and he now timely appeals.

LEGAL ISSUE

Whether the trial court erred in failing to suppress evidence that was seized by City of Portland police officers during their inventory search of a criminal defendant and the car he was driving at the time of his arrest.

COURT’S ANALYSIS & CONCLUSIONS

Johnson argued that the officers’ inspection of his car exceeded the constitutionally permissible bounds for an inventory search.

The Ninth Circuit reasoned that as an exception to the warrant requirement of the Fourth Amendment to the United States Constitution, police may, without a warrant, impound and search a motor vehicle so long as they do so in conformance with the standardized procedures of the local police department and in furtherance of a community caretaking purpose, such as promoting public safety or the efficient flow of traffic. The purpose of such a search is to produce an inventory of the items in the car, in order to protect an owner’s property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger. Florida v. Wells, 495 U.S. 1, 4 (1990). Thus, the purpose of the search must be non-investigative; it must be conducted on the basis of something other than suspicion of evidence of criminal activity. The search cannot be “a ruse for a general rummaging in order to discover incriminating evidence.” Wells, 495 U.S. at 4.

The Court of Appeals further reasoned that an administrative search may be invalid where the officer’s subjective purpose was to find evidence of crime. However, the mere presence of a criminal investigatory motive or a dual motive—one valid, and one impermissible— does not render an administrative stop or search invalid. Instead, the issue is whether the challenged search or seizure would have occurred in the absence of an impermissible reason.

“We thus must determine whether Johnson has produced evidence that demonstrates the officers would not have searched and seized items from the car he was driving but for an impermissible motive,” said the Court of Appeals.

“Under our circuit’s law, a suspicionless inventory search does not permit officers to search or to seize items simply because they believe the items might be of evidentiary value,” said the Court.  It reasoned that as explained above, the purpose of such a search must be unrelated to criminal investigation; it must function instead to secure and to protect an arrestee’s property, and likewise to protect the police department against fraudulent claims of lost or stolen property.

“Thus, the officers’ statements directly admitting that they searched and seized items from Johnson’s car specifically to gather evidence of a suspected crime are sufficient to conclude that the warrantless search of the car was unreasonable,” said the Court, citing Orozco; a case where the Ninth Circuit found pretext where the police officers admitted that their subjective purpose was to find evidence of crime.

The Ninth Circuit concluded that the officers’ search and seizure of such evidence cannot be justified under the inventory-search doctrine:

“In the face of such evidence, it is clear to us that the officers’ decision to seize the money, bags, and cellphones from Johnson and his car would not have occurred without an improper motivation to gather evidence of crime.”

Furthermore, the Ninth Circuit reasoned that because the government has not offered any justification for the seizure of such property other than the inventory-search doctrine, the district court erred in denying Johnson’s motion to suppress. Therefore, evidence gathered from Johnson and his vehicle was inadmissible.

With that, the Ninth Circuit ruled that the federal district court’s denial of Johnson’s motion to suppress the evidence found on his person and in the car he was driving at the time of his arrest is reversed, his conviction and sentence are vacated, and the case is remanded back to the district court for further proceedings.

My opinion? Good decision. Clearly, the search conducted by police officers in this case went beyond the scope of a lawful inventory search. Please contact my office if you, a friend of family member face criminal charges involving a questionable search. The evidence might be suppressible under a well-argued pretrial motion.

How to Delete Your DNA Data From Genetics Companies

Bellingham Defense Attorney, DNA, Search and Seizure, Search Warrant, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Image result for dna data spit into

Wonderful article from reporter Erin Brodwin of Business Insider discusses how to delete your DNA data from genetics companies like 23andMe and Ancestry.

The recent arrest in one of California’s most infamous serial-killer cases was based in large part on a DNA sample submitted to a genetics website by a distant relative of the suspect.

Brodwin writes that, naturally, the news may have you concerned about the security of your own genetic material. You may be wondering how to delete it from genetic databases kept by popular genetics testing companies like 23andMe and Ancestry.

Those two databases were not used by investigators to track down Golden State Killer suspect Joseph James DeAngelo. Instead, investigators used a service called GEDmatch, which lets customers upload a raw DNA signature. Investigators created a profile for the suspect using DNA sourced from a long-stored crime scene sample, and found matches between DeAngelo’s crime scene DNA and the DNA of a distant family member.

In her article, Brodwin writes that 23andMe, Ancestry, and Helix (National Geographic’s genetics service) only accept saliva samples for genetics testing — an easy way of obtaining DNA. But a similar company called Family Tree DNA could likely accept hair or blood, according to Joe Fox, an administrator for one of the company’s surname projects.

Whichever way a company gets your DNA, privacy advocates say there’s cause for concern. Although genetic data is ostensibly anonymized, companies can and do sell your data to third parties like pharmaceutical companies. From there, it could find its way elsewhere, advocates say.

The core service provided by most commercial genetic tests is built on the extraction of your DNA from your spit — that’s how you get the results about your health and ancestry information.

Here’s how to delete your data from a few of these services.

Deleting DNA Test Results from 23andMe.

After registering your spit sample online with 23andMe, the company will ask if you’d like your saliva to be stored or discarded. But you are not asked the same question about your raw genetic data — the DNA extracted from your spit.

Based on the wording of a document called the “Biobanking Consent Document,” it’s a bit unclear what happens to that raw DNA once you decide to have the company either store or toss your spit.

Here’s the statement’s exact language:

“By choosing to have 23andMe store either your saliva sample or DNA extracted from your saliva, you are consenting to having 23andMe and its contractors access and analyze your stored sample, using the same or more advanced technologies.”

That leaves a bit of a grey area as far as what 23andMe has the ability to keep, and how they can use your DNA information. If your spit or DNA sample is stored, the company can hold onto it for between one and 10 years, “unless we notify you otherwise,” the Biobanking Consent Document states.

Still, you can request that the company discard your spit. To do so, go to its Customer Care page, navigate to “Accounts and Registration,” scroll to the bottom of the bulleted list of options, and select the last bullet titled “Requesting Account Closure.”

Once there, you must submit a request to have your spit sample destroyed and/or have your account closed.

Deleting DNA Test Results from Ancestry.

If you want to delete your DNA test results with Ancestry, use the navigation bar at the top of the homepage to select “DNA.”

On the page with your name at the top, scroll to the upper right corner, select “Settings,” then go to “Delete Test Results” on the right side column.

According to the company’s latest privacy statement, doing this will result in the company deleting the following within 30 days: “All genetic information, including any derivative genetic information (ethnicity estimates, genetic relative matches, etc.) from our production, development, analytics, and research systems.”

But if you opted into Ancestry’s informed “Consent to Research” when you signed up, the company says it can’t wipe your genetic information from any “active or completed research projects.” It will, however, prevent your DNA from being used for new research.

To have the company discard your spit sample, you must call Member Services and request that it be thrown out.

Deleting DNA Test Results From Helix.

In its most recently updated Privacy Policy, Helix states that it may “store your DNA indefinitely.” It also keeps your saliva sample, but you can request that it be destroyed by contacting Helix’s Customer Care via a request form that looks similar to 23andMe’s.

My opinion? Thankfully, the police conducted lawful and highly intelligent investigations leading up to the capture of the Golden State Killer. They should be congratulated. And these highly remarkable techniques remind us that the information we share with the world can be accessed anywhere, any time, by the authorities. Like Brodwin mentions,  companies can and do sell your data to third parties like pharmaceutical companies. From there, it could find its way elsewhere.

Please contact my office if you, a friend or family member face criminal charges involving the authorities accessing DNA. If the search was unlawful, then the evidence can be suppressed. Hiring a competent defense counsel who is familiar with search and seizure  law is the first and best step toward getting criminal charges reduced or dismissed.

Gun Safes Are Searchable

Bellingham Defense Attorney, Constitutional Rights, Evidence, felony, Firearm, Fourth Amendment, law enforcement, police, Search and Seizure, Search Warrant, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , ,

AMSEC | FV6042E5 Black LTE | Gun Safe | Nevada Safes© Biggest Safe Store in NV‎ | 702-331-7233

In State v. Witkowski, the WA Court of Appeals held that a police search warrant for firearms located in a residence allows officers to search a locked gun safe.

BACKGROUND FACTS

On October 27, 2015, Deputy Martin Zurfluh obtained a search warrant to search the Respondents’ property, including their residence, for evidence of possession of stolen property and utility theft. The search warrant was limited to a stolen power meter and its accessories. An arrest warrant for Witkowski was also issued.

On October 29, officers executed the search and arrest warrants. After this search, Deputy Zurfluh requested an addendum to the search warrant. In his affidavit, Deputy Zurfluh explained that after entering the Respondents’ residence, police found drug paraphernalia, ammunition, one locked gun safe, one unlocked gun safe, a rifle case, and surveillance cameras. Deputy Zurfluh knew that the Respondents were felons and were prohibited from possessing firearms or ammunition.

The search warrant addendum authorized police to search at the Respondents’ street address for evidence of unlawful possession of a firearm, identity theft, unlawful possession of a controlled substance, and unlawful use of drug paraphernalia. The warrant addendum defined the area to be searched for this evidence as the main residence, a shed, and any vehicles and outbuildings at the street address.

The addendum authorized the seizure of evidence including,

  1. firearms, firearms parts, and accessories, including but not limited to rifles, shotguns, handguns, ammunition, scopes, cases, cleaning kits, and holsters
  2. Surveillance Systems used or intended to be used in the furtherance of any of the above listed crimes.
  3. Any item used as a container for #1.

Notably, the addendum did not identify either of the gun safes as items to be seized.

When executing the warrant addendum, officers opened the locked gun safe. They found 11 loaded rifles and shotguns with their serial numbers filed off, a handgun, a police scanner, a large quantity of cash, ammunition, and cameras.

After the search, the State charged Respondents with numerous counts including first degree unlawful possession of a firearm. Witkowski was additionally charged with seven counts of possession of a stolen firearm.

The superior court suppressed the evidence found inside the gun safes under the Fourth Amendment. It ruled that the addendum to the warrant did not include the gun safes or containers for firearms and that gun safes are not “personal effects,” so that the search of the safes did not fall within the scope of the search warrant.

The superior court later denied the State’s motions for reconsideration. The State filed motions for discretionary review to the Court of Appeals.

COURT’S ANALYSIS & CONCLUSIONS

The Court reasoned that a lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. Thus, a warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found.

“Here, the warrant addendum listed the objects of the search as including firearms and firearm accessories,” said the Court of Appeals.  “And Deputy Zurfluh testified that he suspected the close-to refrigerator-sized, locked safe contained firearms because he had found ammunition in the home.” The Court emphasized that Deputy Zurfluh also testified that in his experience, a tall, upright safe would be used to store guns.

Additionally, the Court of Appeals emphasized that numerous Washington cases have also expressed the Fourth Amendment rule that a premises warrant authorizes a search of containers in a residence that could reasonably contain the object of the search.

“In sum, federal and state precedent applying the Fourth Amendment show that when police execute a premises warrant, they are authorized to search locked containers where the objects of the search are likely to be found. Thus, the superior court here erred under the Fourth Amendment when it suppressed the evidence in the locked gun safe as exceeding the scope of the warrant addendum.”

With that, the Court of Appeals reversed the Superior Court’s suppression of the evidence and remanded back to the trial court for further proceedings.

Please contact my office if you, a friend or family member face criminal charges involving searches of persons, vehicles and property. Hiring competent criminal defense counsel is the first step toward getting charges reduced or dismissed.

Warrantless Search & “Community Caretaking”

Bellingham Defense Attorney, Community Caretaking, Constitutional Rights, felony, Firearm, Fourth Amendment, Homicide & Manslaughter, law enforcement, Search and Seizure, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Know Your Rights: Can You Be Searched Without a Warrant? | legalzoom.com

In State v. Boisselle, the WA Court of Appeals held that the officers’ warrantless entry into a duplex was lawful as the officers were worried that someone might be injured or dead inside, the officers were unable to locate the individuals who were believed to being living in the duplex, the officers did not intend to conduct a criminal investigation inside the duplex, and from the time the officers arrived at the duplex, until entry, the officers individually and collectively worked to ascertain the situation.

BACKGROUND FACTS

In July 2014, Michael Boisselle encountered Brandon Zomalt, an old acquaintance. Zomalt told Boisselle that he was homeless, had nowhere to sleep, and that he needed assistance obtaining a food handler’s permit in order to secure a job. Boisselle offered to let Zomalt stay with him in his duplex unit. With Boisselle’s assistance, Zomalt received his food handler’s permit and began working at a nearby restaurant. However, Zomalt was fired after one week for fighting at work.

Zomalt was addicted to alcohol and methamphetamine. He also had a history of violence. Several people, including Zomalt’s mother and two of his former girlfriends, had been granted protection orders against him. After losing his job, Zomalt drank throughout the day. Boisselle did not feel safe around Zomalt and avoided him when possible.

The tension in the house culminated into a confrontation. Apparently, Zomalt began to behave strangely. He also drank heavily. One night, Boiselle and Zomalt were home. According to Boiselle, Zomalt held him hostage in their home and threatened Boiselle with a firearm. Later that night, Boiselle managed to reach the gun. He fired the weapon at Boiselle, apparently in self-defense. No witnesses summoned police or heard the firearm.

On September 1, 2014, South Sound 911 dispatch received an anonymous telephone call from an individual who reported that “somebody by the name of Mike” stated that he shot someone at the duplex. Shortly thereafter, the Puyallup Police Department anonymous tip line received a telephone call from an individual who reported that “Mike” had “shot someone” and “possibly killed him, and it was in self-defense.” Deputies Ryan Olivarez and Fredrick Wiggins were dispatched to the scene.

Olivarez and Wiggins knocked on the door of the duplex but received no response. There was, however, a dog inside that was barking aggressively. The deputies walked around the outside of the duplex and attempted to look inside, but all of the windows were closed and covered with blinds. There was a light on in the upstairs western bedroom. The deputies smelled a foul odor coming from the house and the garage. Olivarez thought that “something about it just seemed off’ and was concerned with “trying to figure out if someone needed help.” Olivarez and Wiggins then contacted the neighbors in order to gather more information. Two neighbors informed the deputies that they had not seen anyone coming or going from the duplex for about “four or five days.”

With no person apparently able to consent to a police entry of the unit and believing that they did not have a sufficient basis to obtain a search warrant, Adamson and Clarkson made a joint decision to force entry into the duplex. Clarkson broke through the front door. An animal control officer secured the dog. The officers then performed a security sweep of the duplex, looking for anyone who was hurt. Adamson and Clarkson searched the second floor of the duplex while Wiggins and Olivarez searched the first floor. The officers checked all of the rooms, looking in closets and other large spaces for a person or a body but ignoring drawers and other areas where a person could not fit.

Sergeant Clarkson believed that the smell was coming from inside of the garage and was consistent with a dead body. Once all of the rooms inside the duplex had been checked, deputies Wiggins and Olivarez forced entry into the garage from inside of the duplex. Once inside the garage, all four officers could see a large, rolled up carpet with a shoe sticking out and maggots pouring out of the bottom. Sergeant Clarkson opened the garage door using the automatic door opener and all four officers went around to the outside of the garage for a clear view of the carpet. From outside of the house, the officers saw an arm hanging out of the front end of the carpet. Clarkson told the other officers that “this is a crime scene now,” and that “it’s time we have to seal this off.” None of the officers collected evidence or touched the carpet.

Boisselle was charged with second degree murder and unlawful possession of a firearm. Before trial, he argued a CrR 3.6 motion to suppress. The judge denied the motion. At trial he was convicted of both charges.

On appeal, and among other issues Boisselle contends that the trial court erred by denying his motion to suppress the search of his home.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that the United States Constitution prohibits unreasonable searches and seizures. “The Fourth Amendment does not prohibit ‘reasonable’ warrantless searches and seizures,” said the Court. Furthermore, the Court said the analysis under the Fourth Amendment focuses on whether the police have acted reasonably under the circumstances.

Additionally, the Court explained that Article 1, section 7 of the Washington Constitution is more protective than the Fourth Amendment, particularly where warrantless searches are concerned. “Article 1, section 7 provides that ‘no person shall be disturbed in his private affairs, or his home invaded, without authority of law,'” said the Court.  The WA Constitution also prohibits any disturbance of an individual’s private affairs without authority of law. The Court said this language prohibits unreasonable searches.

However, the Court also explained that a search conducted pursuant to a police officer’s community caretaking function is one exception to the warrant requirement; and the community caretaking function was first announced by the United States Supreme Court in Cady v. Dombrowski. From there, subsequent Washington cases have expanded the community caretaking function exception to encompass not only the search and seizure of automobiles, but also situations involving either emergency aid or routine checks on health and safety.

Here, the court reasoned the police officers rightfully conducted a community caretaking search under the circumstances:

“In any event, the record establishes that the officers acted promptly given the circumstances. From the moment they arrived at the duplex, until entry, the officers individually and collectively began to ascertain the situation at hand. This included checking doors and windows to determine whether anyone was inside the duplex, contacting both the owner of the duplex and the individual listed on the lease in attempts to obtain consent to enter, questioning neighbors, and contacting animal control.”

The Court emphasized that, ultimately, the officers reached a point where two things were clear: (1) obtaining consent to enter was not possible as no person entitled to consent could be identified, and (2) there was nothing further the officers could do to discern the welfare of any person inside the unit absent entry. “At this point, the officers reasonably concluded that forcible entry was necessary to determine the need for and to render assistance. Given the circumstances, this was an immediate response to a likely emergency,” said the Court.

Finally, the Court reasoned the officers’ warrantless search of the duplex was justified pursuant to the community caretaking function exception as considered by a majority of the Supreme Court in State v. Smith.

“Accordingly, the trial court did not err by denying Boisselle’s motion to suppress,” said the Court of Appeals. With that – and following discussion of other issues – the Court of Appeals affirmed Mr. Boisselle’s conviction.

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.

Jail Mail

Bellingham Defense Attorney, Constitutional Rights, Due Process, felony, Jail, Prison, Search and Seizure, Sixth Amendment, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Amazon.com: Jail Mail: Appstore for Android

In State v. Irby, the WA Court of Appeals held that an inmate’s 6th Amendment rights were violated and has case was prejudiced when jail guards opened and read his confidential “jail mail” letters written to his defense attorney.

BACKGROUND FACTS

In April 2005, Irby was charged with one count of burglary in the second degree, alleged to have occurred on March 6, 2005, and the following counts alleged to have occurred on March 8, 2005: one count of aggravated murder in the first degree with an alternative allegation of first degree felony murder, one count of burglary in the first degree, one count of robbery in the first degree, three counts of unlawful possession of a firearm in the first degree, and one count of attempting to elude a police vehicle. The latter charges arose out of a robbery and bludgeoning death.

In January 2007, a jury found Irby guilty of murder in the first degree with aggravating circumstances, felony murder in the first degree, and burglary in the first degree. Four years later, the Washington Supreme Court reversed the judgment of conviction and remanded the cause for a new trial in light of the court’s determination that Irby’s due process rights had been violated during jury selection. See State v. Irby, 170 Wn.2d 874, 246 P.3d 796 (2011).

Irby’s retrial was held in 2013. The State prosecuted the same charges that were brought during the first trial and Irby was convicted as charged. Notably, at the retrial, Irby was allowed to proceed pro se. He also voluntarily absented himself from the trial. We subsequently reversed the judgment of conviction and remanded the cause for yet another new trial because the trial judge had erroneously seated a juror who had demonstrated actual bias against Irby during voir dire.

In March 2016, pretrial proceedings began for Irby’s third trial. He was represented by a public defender. In mid-March, the State filed an amended information charging Irby with one count of premeditated murder in the first degree and one count of burglary in the first degree. Two days later, Irby appeared in court and was arraigned on the charges. He entered pleas of not guilty.

In mid-March and again in late March, Irby requested to represent himself. Following a colloquy with the trial court in mid-April, Irby’s request was granted. Four months later, Irby filed a pro se motion to dismiss the charges against him. In his motion, Irby alleged misconduct by jail guards, claiming that (during the period of time during which his public defender represented him) they had improperly opened outgoing mail containing privileged legal communication intended for his attorney.

The trial court denied Irby’s motion. The trial court did determine that the jail guards had violated Irby’s right to counsel by opening and reading privileged attorney-client communications. Although Irby argued that the trial court’s determination mandated that a presumption of prejudice be imposed, the trial court placed on Irby the burden of proving prejudice and concluded that he did not do so.

One month later, Irby informed the trial court that he had decided not to attend the trial and waived his right to be present at trial.

After a jury was selected without Irby’s participation, the evidentiary stage of Irby’s third trial began. Irby did not attend the trial. The State presented its case in chief and gave closing argument. No defense or closing argument were presented on Irby’s behalf.

The jury returned verdicts finding Irby guilty as charged. Irby was sentenced to concurrent terms of incarceration of 388 months for the murder in the first degree conviction and 54 months for the burglary in the first degree conviction.

ISSUES

1. Did a State actor participate in the infringing conduct alleged by the defendant?

2. If so, did the State actor(s) infringe upon a Sixth Amendment right of the defendant?

3. If so, was there prejudice to the defendant? That is, did the State fail to overcome the presumption of prejudice arising from the infringement by not proving the absence of prejudice beyond a reasonable doubt?

4. If so, what is the appropriate remedy to select and apply, considering the totality of the circumstances present, including the degree of prejudice to the defendant’s right to a fair trial and the degree of nefariousness of the conduct by the State actor(s)?

COURT’S ANALYSIS & CONCLUSIONS

First, the Court of Appeals decided  the “State actors” engaged in misconduct.

“Irby’s motion to dismiss alleged that the confrontation between himself and the State involved conduct by jail guards employed by the county jail in which he was being housed,” said the Court of Appeals. “Thus, Irby established that the conduct underlying his claim involved State actors.”

Second, the Court decided  that the jail guards’ conduct infringed upon his Sixth Amendment right.

“Plainly, a defendant’s Sixth Amendment right to assistance of counsel is violated when the State intrudes into a privileged attorney-client communication,” said the Court of Appeals.

The court reasoned that here, Irby’s motion to dismiss—and accompanying exhibits and addendum—alleged that he had sent 14 pieces of confidential correspondence containing privileged information to his attorney that, he argued, had been improperly opened and read by jail guards in the Skagit County Jail. The correspondence constituted Irby’s handwritten statements on both a “Public Defender Request Form” and jail kites—multi-purpose request forms available to inmates in the Skagit County Jail.

Prior to sending the correspondence, Irby folded each piece of paper in half, sealed each piece of paper with tape, and written on the outward facing side, “CONFIDENTIAL,” and “ATTORNEY BOX.” Consequently, the Court of Appeals said the folded and taped pieces of paper were intended to be confidential and included privileged attorney-client information. “Thus, the aforementioned correspondence from Irby to his counsel contained privileged attorney-client information protected by the Sixth Amendment.”

Third, the Court of Appeals held that the  jail guards’ opening and reading of Irby’s privileged attorney-client correspondence infringed upon his Sixth Amendment right to counsel. The parties do not dispute the trial court’s finding that jail guards had opened and read Irby’s privileged attorney-client communications. “Thus, the jail guards—and therefore the State—infringed on Irby’s Sixth Amendment right to counsel. This constitutes misconduct, within the meaning of CrR 8.3.”

Finally, the Court of Appeals decided Irby was prejudiced by the misconduct:

“More than half a century ago, our Supreme Court ruled that, when State actors pry into a defendant’s privileged attorney-client communications, prejudice to the defendant must be presumed . . . We must assume that information gained by the sheriff was transmitted to the prosecutor and therefore there is no way to isolate the prejudice resulting from an eavesdropping activity, such as this.”

The Court of Appeals further reasoned that recently, our Supreme Court in Pena Fuentes reaffirmed this ruling and, in light of a State actor’s eavesdropping on privileged attorney-client communications, imposed a presumption of prejudice.

Furthermore, because the State actors here at issue—jail guards—infringed upon Irby’s Sixth Amendment right, prejudice must be presumed. Thus, the trial court erred by not imposing a presumption of prejudice after it determined that the jail guards had opened and read Irby’s communications containing privileged attorney-client information.

With that, the Court of Appeals reversed the order denying Irby’s motion to dismiss and remanded this matter for an evidentiary hearing with instructions to the trial court.

My opinion? Excellent decision by the Court of Appeals. It most certainly violates a defendant’s constitutional rights for state actors like jailers, law enforcement and Prosecutors to read mail from an inmate intended for an attorney.

Please read my Legal Guide titled Making Bail and contact my office if you, a friend or family member face criminal charges and are incarcerated awaiting trial. Being in jail is never wise if it can be avoided. Chances are, a qualified and competent attorney can argue for personal release, lowered bail or convince the judge to release the defendant to a family member who is willing to supervise the defendant’s whereabouts.

The Particularity Requirement for Search Warrants

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In State v. McKee, the WA Court of Appeals held that a search warrant that authorized the police to search and seize a large amount of cell phone data, including images, video, documents, text messages, contacts, audio recordings, call logs, calendars, notes, and tasks, and authorized a “physical dump” of “the memory of the phone for examination,” violated the particularity requirement of the Fourth Amendment.

BACKGROUND FACTS

In 2012, A.Z. lived with her older brother and her mother in Anacortes. All parties were addicted to heroin, methamphetamine or both. A.Z. was using heroin and methamphetamine on a daily basis during 2012.

In January 2012, A.Z.’s mother introduced A.Z. to 40-year-old Marc Daniel McKee during a “drug deal” for methamphetamine. McKee started spending a lot of time with the family and supplied them with methamphetamine. They would often “get high” together. At the end of June, McKee left to go to Alaska for work.

When McKee returned two months later, he immediately contacted A.Z. McKee told A.Z. he had heroin and methamphetamine. McKee and A.Z. spent three days together at a Burlington motel using the drugs and engaging in consensual sex.

Eventually, A.Z’s mother confronted McKee about the sexual encounters between A.Z. and McKee. Bringing another male with her A.Z.’s mother confronted McKee at a hotel room, beat him up, took his cell phone, and pulled A.Z out of the room. Later, A.Z.’s mother scrolled through the phone. She found pictures and videos of her daughter A.Z tied naked to a bed as well as videos of McKee and A.Z. having sex.

After A.Z.’s mother looked at the video clips and photographs on the cell phone, she contacted the Mount Vernon Police Department. On October 30, A.Z.’s mother met with Detective Dave Shackleton. A.Z.’s mother described the video clips and photographs she saw on the cell phone. She left the cell phone with Detective Shackleton. Later, A.Z.’s mother contacted Detective Shackleton to report that J.P., another minor female, told her that McKee gave J.P. drugs in exchange for sex. Brickley obtained a restraining order prohibiting McKee from contacting A.Z.

Application for a Search Warrant

On October 31, Detective Jerrad Ely submitted an application and affidavit (Affidavit) in support of probable cause to obtain a warrant to search McKee’s cell phone to investigate the crimes of “Sexual Exploitation of a Minor RCW 9.68A.040” and “Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct RCW 9.68A.050.” The court issued a search warrant.

The warrant allowed the police to obtain evidence from the cell phone described as an LG cell phone with model VX9100 currently being held at the Mount Vernon Police Department for the following items wanted:

“Images, video, documents, text messages, contacts, audio recordings, call logs, calendars, notes, tasks, data/internet usage, any and all identifying data, and any other electronic data from the cell phone showing evidence of the above listed crimes.”

The search warrant authorizes the police to conduct a “physical dump” of the memory of
the cell phone for examination. On November 7, 2012, the court filed a “Receipt of Execution of Search Warrant.” The Receipt of Execution of Search Warrant states the police conducted a “Cellebrite Dump” of the cell phone on November 6. Cellebrite software obtains all information saved on the cell phone as well as deleted information and transfers the data from the cell phone to a computer.

Criminal Charges

The State charged McKee with three counts of Possession of Depictions of Minors Engaged in Sexually Explicit Conduct in the First Degree in violation of RCW 9.68A.070(1) based on the three cell phone video clips, one count of Possession of Depictions of a Minor Engaged in Sexually Explicit Conduct in the Second Degree in violation of RCW 9.68A.070(2) based on the cell phone photographs, one count of Commercial Sex Abuse of J.P. as a minor in violation of RCW 9.68A.100, three counts of Distribution of Methamphetamine and/or Heroin to a person under age 18 in violation of RCW 69.50.406(1) and .401(2), and one count of Violation of a No-Contact Order in violation of RCW 26.50.110(1).

Motion to Suppress

McKee filed a motion to suppress the evidence the police seized from his cell phone. McKee asserted the search warrant violated the Fourth Amendment requirement to describe with particularity the “things to be seized.” McKee argued the warrant allowed the police to search an “overbroad list of items” unrelated to the identified crimes under investigation. McKee also argued probable cause did not support issuing a search warrant of the cell phone for the crime of dealing in depictions of a minor engaged in sexually explicit conduct.

The court entered an order denying the motion to suppress. The court found the allegations in the Affidavit supported probable cause that McKee committed the crimes of sexual exploitation of a minor and dealing in depictions of minors engaged in sexually explicit conduct. The court concluded the citation to the criminal statutes established particularity and the search warrant was not overbroad.

At trial, the jury found McKee not guilty of distribution of methamphetamine and/or heroin. The jury found McKee guilty as charged on all other counts.

COURT’S ANALYSIS & CONCLUSIONS

Ultimately, the Court of Appeals held that the search warrant violated the particularity requirement of the Fourth Amendment, and that a search conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional.

The Court reasoned that the Fourth Amendment was adopted in response to indiscriminate searches and seizures conducted under the authority of ‘general warrants.’

“The problem posed by the general warrant is not that of intrusion per se, but of a general,
exploratory rummaging in a person’s belongings,” said the Court. “The Fourth Amendment
addresses the problem by requiring a particular description of the things to be seized . . .

The court further reasoned that by limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and would not take on the character of the wide-ranging exploratory searches the Framers of the Constitution intended to prohibit.

“The degree of specificity required varies depending on the circumstances of the case and the types of items,” said the Court. “The advent of devices such as cell phones that store vast amounts of personal information makes the particularity requirement of the Fourth Amendment that much more important.” The Court also quoted language from the U.S. Supreme Court’s Riley v. California and the WA Supreme Court’s State v. Samilia; both cases strongly supporting the notion that cell phones and the information contained therein are private affairs because they may contain intimate details about individuals’ lives.

“Here, the warrant cites and identifies the crimes under investigation but does not use the language in the statutes to describe the data sought from the cell phone,” said the Court. “The warrant lists the crimes under investigation on page one but separately lists the “Items Wanted” on page two.” Consequently, the Court reasoned that the description of the “Items Wanted” was overbroad and allowed the police to search and seize lawful data when the warrant could have been made more particular.

Furthermore, the Court held that the warrant in this case was not carefully tailored to the justification to search and was not limited to data for which there was probable cause. The warrant authorized the police to search all images, videos, documents, calendars, text messages, data, Internet usage, and “any other electronic data” and to conduct a “physical dump” of “all of the memory of the phone for examination.”

“The language of the search warrant clearly allows search and seizure of data without regard to whether the data is connected to the crime,” said the Court. “The warrant gives the police the right to search the contents of the cell phone and seize private information with no temporal or other limitation.” As a result, reasoned the Court, there was no limit on the topics of information for which the police could search. Nor did the warrant limit the search to information generated close in time to incidents for which the police had probable cause:

“The warrant allowed the police to search general categories of data on the cell phone with no objective standard or guidance to the police executing the warrant. The language of the search warrant left to the discretion of the police what to seize.”

With that, the Court of Appeals held the search warrant violated the particularity requirement of the Fourth Amendment. The Court reversed and dismissed the four convictions of Possession of Depictions of a Minor Engaging in Sexually Explicit Conduct.

My opinion? For the most part, courts look dis favorably on the searches of people’s homes, cars, phones, etc., unless the probable cause for the search is virtually overwhelming, and/or an emergency exists which would spoil the evidence if it was not gathered quickly; and/or a search warrant exists. Even when search warrants are drafted and executed, they must be particular to the search. In other words, law enforcement can’t expect that a general, non-specific search warrant is going to win the day for them and allow a fishing expedition to take place.

Here, the Court of Appeals correctly followed the law. In this case, limiting the search to the crimes cited on the first page of the warrant was insufficient. The descriptions of what to be seized must be made more particular by using the precise statutory language to describe the materials sought.

Please read my Search and Seizure Legal Guide and contact my office if you, a friend or family member’s person, home, vehicle or cell phone was searched by police and evidence was seized. The search may have been unlawfully conducted in violation of your Constitutional rights.