Category Archives: Search and Seizure

“Furtive Movements”

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Drug Recognition Expert, Evidence, felony, Furtive Movements, Privacy, Race & Law, Reasonable Suspicion, Search and Seizure, Skagit County Criminal Defense, Terry Stop, Washington Supreme Court, Whatcom County Criminal Defense, , ,

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In State v. Weyand, the WA Supreme Court held that officers lacked sufficient facts to justify a Terry stop of the defendant. Walking quickly while looking up and down the street at 2:40 a.m. is an innocuous act, which cannot justify intruding into people’s private affairs.

BACKGROUND FACTS

On December 22, 2012, at 2:40 in the morning, Corporal Bryce Henry saw a car parked near 95 Cullum Avenue in Richland, Washington, that had not been there 20 minutes prior. The area is known for extensive drug history. Corporal Henry did not recognize the car and ran the license plate through an I/LEADS (Intergraph Law Enforcement Automated System) database. However, that license plate search revealed nothing of consequence about the vehicle or its registered owner.

After parking his car, Corporal Henry saw Weyand and another male leave 95 Cullum. As the men walked quickly toward the car, they looked up and down the street. The driver looked around once more before getting into the car. Weyand got into the passenger seat. Based on these observations and Corporal Henry’s knowledge of the extensive drug history at 95 Cullum, he conducted a Terry stop of the car.

After stopping Weyand, Corporal Henry observed that Weyand’s eyes were red and glassy and his pupils were constricted. Corporal Henry is a drug recognition expert and believed that Weyand was under the influence of a narcotic. When Corporal Henry ran Weyand’ s name, he discovered an outstanding warrant and arrested Weyand. Corporal Henry searched Weyand incident to that arrest and found a capped syringe. Corporal Henry advised Weyand of his Miranda3 rights, and Weyand admitted that the substance in the syringe was heroin that he had bought from a resident inside 95 Cullum.

PROCEDURAL HISTORY

The State charged Weyand with one count of unlawful possession of a controlled substance. Weyand moved to suppress all evidence and statements under Criminal Rules (CrR) 3.5 and 3.6 and to dismiss the case against him. Weyand argued that the officer did not have sufficient individualized suspicion to conduct the investigatory stop.

After the hearing, the court concluded that the seizure was a lawful investigative stop. According to the court, Corporal Henry had reasonable suspicion to believe that Weyand was involved in criminal activity. The court found Weyand’s case distinct from State v. Doughty, because in this case there was actual evidence of drug activity at, as well as known drug users frequenting, 95 Cullum.

The court additionally found that Weyand knowingly, intelligently, and voluntarily waived his Miranda rights; thus, all post-Miranda statements were admissible at trial. Weyand waived his right to a jury trial and agreed to submit the case to a stipulated facts trial. Finding that Weyand possessed a loaded syringe that contained heroin, the court found Weyand guilty of unlawful possession of a controlled substance.

Weyand appealed, and the Court of Appeals affirmed the conviction. It reasoned that the totality of the circumstances, coupled with the officer’s training and experience, showed that the officer had a reasonable, articulable suspicion that justified the stop. Those circumstances included “the long history of drug activity at 95 Cullum, the time of night, the 20 minute stop at the house, the brisk walking, and the glances up and down the street.”

LEGAL ISSUE

Whether the specific facts that led to the Terry stop would lead an objective person to form a reasonable suspicion that Weyand was engaged in criminal activity.

COURT’S ANALYSIS & CONCLUSIONS

The Court held that officers lacked sufficient facts to justify a Terry stop of the defendant. It reasoned that under the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution, an officer generally may not seize a person without a warrant. There are, however, a few carefully drawn exceptions to the warrant requirement. The State bears the burden to show that a warrantless search or seizure falls into one of the narrowly drawn exceptions.

One of these exceptions is the Terry investigative stop. The Terry exception allows an officer to briefly detain a person for questioning, without a warrant, if the officer has reasonable suspicion that the person is or is about to be engaged in criminal activity. An officer may also briefly frisk the person if the officer has reasonable safety concerns to justify the protective frisk.

The Court found that the totality of the circumstances did not justify a warrantless seizure. It reasoned that in order to conduct a valid Terry stop, an officer must have reasonable suspicion of criminal activity based on specific and articulable facts known to the officer at the inception of the stop. To evaluate the reasonableness of the officer’s suspicion, Courts look at the totality of the circumstances known to the officer. The totality of circumstances includes the officer’s training and experience, the location of the stop, the conduct of the person detained, the purpose of the stop, and the amount of physical intrusion on the suspect’s liberty. The suspicion must be individualized to the person being stopped.

“Here, the trial court’s decision rested primarily on evidence that 95 Cullum was a
known drug location,” said the Court. “However, Corporal Henry did not observe current activity that would lead a reasonable observer to believe that criminal activity was taking place or about to take place in the residence.”

Furtive Movements

Also, the Court reasoned that reliance on ‘furtive movements’ as the basis for a Terry stop can be problematic. “Case law has not precisely defined such movements, and courts too often accept the label without questioning the breadth of the term.” It explained that ‘furtive movements’ are vague generalizations of what might be perceived as suspicious activity which does not provide a legal ( or factual) basis for a Terry stop.”

The Court quoted Judge Richard Posner in recognizing that “furtive movements,” standing alone, are a vague and unreliable indicator of criminality:

“Whether you stand still or move, drive above, below, or at the speed limit, you will be described by the police as acting suspiciously should they wish to stop or arrest you. Such subjective, promiscuous appeals to an ineffable intuition should not be credited.”

With that, the WA Supreme Court reasoned that simply labeling a suspect’s action a “furtive movement,” without explaining how it gives rise to a reasonable and articulable suspicion, is not sufficient to justify a Terry stop. Furthermore, reasoned the Court, police cannot justify a suspicion of criminal conduct based only on a person’s location in a high crime area:

“It is beyond dispute that many members of our society live, work, and spend their waking hours in high crime areas, a description that can be applied to parts of many of our cities. That does not automatically make those individuals proper subjects for criminal investigation.”

Consequently, the WA Supreme Court reversed the Court of Appeals and hold that walking quickly and looking around, even after leaving a house with extensive drug history at 2:40 in the morning, is not enough to create a reasonable, articulable suspicion of criminal activity justifying a Terry stop.

My opinion? Excellent decision. I’m very impressed the Court addressed the term “furtive movements” and put it in perspective. Law enforcement officers regularly use this catch-phrase to describe suspicious behavior allowing them stop/search/seize people. Although officer safety is a primary concern and a very good reason to search people who are already in police custody and making “furtive movements” in the presence of officers, it cannot be a basis for stopping and searching people who are simply going about their business walking down the street. Great decision.

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

Invalid Search Warrant

Bellingham Defense Attorney, Blood Test, Drug Offenses, DUI, Evidence, misdemeanor, Physical Control DUI, Probable Cause, Search and Seizure, Search Warrant, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Youngs, the WA Court of Appeals suppressed evidence of the defendant’s blood test collected after a search warrant because the search warrant application did not contain sufficient facts to establish that the suspect was driving the car.

BACKGROUND FACTS

In the early morning hours of May 15, 2013, a Washington State Patrol Trooper arrested Youngs after driving a car involved in a rollover collision. The judge issued the warrant based on the Affidavit in Support of Search Warrant for Evidence of a Driving While Under the Influence of Intoxicants (DUI).

This affidavit is a largely preprinted form to which the law enforcement officer may add information.

Following the blood draw, the State charged Youngs with DUI. Youngs moved to suppress evidence obtained under authority of the warrant. The district court denied the motion. Youngs then agreed to a stipulated bench trial based on the police report and blood alcohol report. The district court found Youngs guilty and sentenced him.

Youngs sought review in the superior court. The Court affirmed based on the content in the state trooper’s affidavit. Eventually, the WA Court of Appeals granted Youngs’s appeal.

ISSUE

The question was whether the trooper’s search warrant affidavit had sufficient facts for a judge to make an independent decision whether there was probable cause that the defendant was driving.

COURT’S DECISION & ANALYSIS

The Court decided that although the factual information concerning intoxication is sufficient and unchallenged in this case, the factual information to establish driving is insufficient.

The Court reasoned that a judge may only issue a search warrant upon probable cause. The warrant must be supported by an affidavit identifying the place to be searched and the items to be seized. The affidavit must contain sufficient facts to convince an ordinary person that the defendant is probably engaged in criminal activity.

Furthermore, the Court reasoned that judges must evaluate the relevant affidavit “‘in a commonsense manner, rather than hypertechnically, and any doubts are resolved in favor of the warrant. Thus, a “negligent or innocent mistake” in drafting the affidavit will not void it. Also, judges may draw reasonable inferences from the stated facts.

However, the Court also reasoned that inferences alone, without an otherwise substantial basis of facts, are insufficient. The affidavit may provide summary statements so long as it also expresses the facts and circumstances underlying that summary.

Here, the Court found technical problems with the affidavit. For example, one problem is that the preprinted language in the form—”ceased driving/was found in physical control of a motor vehicle” — suggests that it is intended to apply to two different crimes. One crime is “Driving While Under the Influence under RCW 46.61.502, while the other is “Physical Control of Vehicle While Under the Influence under RCW 46.61.504, which is a totally separate and different crime with different elements for the State to prove:

The Court said that unlike the act of driving, which may be readily observed, “physical control” is a conclusion drawn from other facts. For example, a police officer may reach this conclusion based on the defendant’s proximity to the vehicle, possession of keys to it, or similar observable circumstances.  Because the magistrate must independently determine whether probable cause exists, he or she cannot simply accept such a conclusion without supporting allegations. Therefore, ruled the Court, the statements in the search warrant affidavit are conclusory, general, and insufficient to support probable cause that Youngs was driving the vehicle.

With that, the Court reversed Youngs’ conviction and remanded the case back to the district court with directions to suppress the evidence obtained by the warrant.

My opinion? Excellent decision. Sure, it’s sometimes safe to assume that the sole driver of a car involved in a collision is, in fact, the driver. However, it muddies the waters even further when law enforcement officers issuing search warrants fail to clarify whether the crime of straight DUI or Physical Control DUI took place.

These crimes are very different. One crimes involves officers seeing the defendant drive (straight DUI) while the other crime does not (Physical Control DUI). Combined with the fact that there was missing information regarding the defendant’s driving at all, this combination of errors makes for an ineffective search warrant.

Again, good decision.

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

Border Patrol Backs Trump

Bellingham Defense Attorney, Constitutional Rights, Due Process, Federal Crimes & Prosecutions, Immigration, Legislation, Search and Seizure, Skagit County Criminal Defense, Trump Administration, Whatcom County Criminal Defense, , ,

Brandon Judd, the president of the National Border Patrol Council, told "Fox and Friends" on July 17, 2017, that morale is the highest he's seen throughout his 20 years within the agency. (Fox News Channel screenshot)

According to a news article by reporter Douglass Ernst of the Washington Times, President Trump received a glowing performance review Monday from the head of the National Border Patrol Council.

Brandon Judd, who is the President of the National Border Patrol Council, appeared on “Fox and Friends” on Monday to discuss illegal immigration, Mr. Trump’s plan to build a border wall with Mexico, and morale within the agency. The union president said that agents have a new “energy” to them due to a concrete commitment to enforcing existing federal laws.

“There’s a vibe, there’s an energy in the Border Patrol that’s never been there before,” Mr. Judd told host Steve Doocy. “In the 20 years I’ve been in the patrol, we haven’t seen this type of energy, and we’re excited because we signed up to do a job and this president is allowing us to do that job.”

Mr. Judd said that having a giant contiguous wall along the southern border was not as important as having barricades at “strategic locations” such as El Paso and San Diego.

“The president has done a great job of actually enforcing the law — something we didn’t see in the last eight years,” Mr. Judd said, Fox News Channel reported. “And if we continue to do that, then a clear message will be sent throughout the world that if you cross our borders illegally, you will be detained and you will be sent back.

“If you look at the rhetoric that the president sent out, we’ve had a drop that we’ve never seen before with any president,” he continued. “If you’re in the left, right or middle, you have to say this president has done exactly what he promised to do and we do have border security like what we expect to see.”

My opinion? Let’s observe how these ongoing immigration issues develop. Last month,  the U.S. Supreme Court Supreme Court had a ruling which allowed parts of President Donald Trump’s travel ban to go into effect and will hear oral arguments on the case this fall. In its decision, the court is allowing the ban to go into effect for foreign nationals who lack any “bona fide relationship with any person or entity in the United States.”

The court, in an unsigned opinion, left the travel ban against citizens of six majority-Muslim on hold as applied to non-citizens with relationships with persons or entities in the United States, which includes most of the plaintiffs in both cases.

Please contact my office if you, a friend or family member are charged with a crime. Many charges – including sex offenses, and felony assaults – are potentially deportable offenses for non-citizens. Hiring an effective and competent defense attorney is the first and best step toward justice.

Downtown Bellingham’s Loitering Problem: What’s the Answer?

ACLU, Bellingham Defense Attorney, Constitutional Rights, Due Process, law enforcement, police, Search and Seizure, Skagit County Criminal Defense, Terry Stop, Whatcom County Criminal Defense, , ,

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Excellent article by Kie Relyea of the Bellingham Herald discusses the problem of increased loitering in downtown Bellingham.

According to Relyea, downtown business owners are telling city leaders they need help. They’re tired of people sleeping in the doorways of their buildings, lighting fires in their alcoves, and having to clean up after those who leave behind stolen bicycles, trash, feces and drug paraphernalia such as used needles.

That, and a rise in antisocial behavior and unseemly loitering, is making some people who visit and work in downtown Bellingham feel unsafe.

Relyea reports that Bellingham residents reported feeling less safe when walking alone downtown during the day and night than previously, according to a recent survey of residents’ views about issues facing the community. The March 12 deadly shooting in downtown also raised a great deal of concern about safety downtown.

THE STATISTICS

According to Relyea, Bellingham Police Department statistics showed a nearly 2.5 percent increase in overall incidents from 2013 and 2016 in downtown – going from 3,688 to 3,778 responses that were both criminal and non-criminal in nature. For 2016 alone, 53 percent of the incidents police responded to in the downtown were non-criminal in nature.

Criminal incidents would be arrestable offenses such as assaults, robbery and rape. Non-criminal could include responding to people with mental problems, someone violating the sitting and lying ordinance, or someone who was drunk.

SOLUTIONS

Relyea reports that business owners want to help those who want to be helped. This means opening a bigger shelter for the homeless, getting them into housing, finding them jobs and helping people struggling with mental health and addiction.

Bellingham Mayor Kelli Linville said prevention was important to her, and the city spends up to $450,000 a year toward such efforts, including for the Homeless Outreach Team, community paramedic and intensive case management.

An upcoming project called Whatcom GRACE (for Ground-Level Response and Coordinated Engagement) also could help, by reaching out to those being called “familiar faces” – people who tend to fall through the cracks over and over, and who have a number of needs such as housing, behavioral health and substance abuse. They’re also the ones who come into contact with a number of organizations.

Apparently, police believe it’s a safety issue to not have people blocking sidewalks where there are pedestrians. However, the ACLU and homeless advocates said such laws target people who are visibly poor and homeless, and could be unconstitutional.

Bellingham Council member Michael Lilliquist gave his perspective:

“For some people, including myself, restricting and limiting people from sitting down is not a well-aimed tool. For one thing, sitting down is sometimes a perfectly fine and normal thing to do. In addition, our police tell me it is difficult to enforce and easy to avoid,” he said.

“For example, people can move just a little distance, such as where the alleyway or a driveway cuts through, and then they are technically not in violation because it is not a ‘sidewalk’ under the definition,” Lilliquist added. “It seems like a lot of work, and some hostility, to get at something that is not the heart of the problem.”

My opinion?

First, don’t criminalize homelessness. That’s not the answer, and only leads to violating people’s constitutional rights. Second, if anything, divert more resources to addressing mental health and substance abuse.

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.

Drug-Sniffing Dogs

9th Circuit Court of Appeals, Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Evidence, Federal Crimes & Prosecutions, law enforcement, police, Search and Seizure, Search Warrant, Skagit County Criminal Defense, Whatcom County Criminal Defense, , ,

Detection Dogs: Learning to Pass the Sniff Test

In United States v. Gorman, the Ninth Circuit Court of Appeals held that the Fourth Amendment was violated when an officer unreasonably prolonged an initial traffic stop and radioed for a drug-sniffing dog after because he thought there were drugs in the car.

BACKGROUND FACTS

In January 2013, a police officer stopped Straughn Gorman on Interstate-80 outside Wells, Nevada for a minor traffic infraction. The officer thought Gorman might be carrying drug money. Acting on this concern, he unsuccessfully attempted to summon a drug-sniffing dog and then prolonged Gorman’s roadside detention, which lasted nearly half an hour, as he conducted a non-routine records check.

Unable to justify searching the vehicle, he questioned Gorman further and finally released him without a citation.

Undeterred, the officer then developed the bright idea of contacting the sheriff’s office in Elko, a city further along Gorman’s route, to request that one of their officers stop Gorman a second time. The first officer conveyed his suspicions that Gorman was carrying drug money, described Gorman’s vehicle and direction of travel, and reported that his traffic stop had provided no basis for a search. “You’re going to need a dog,” he said. A second officer, who had a dog with him, then made a special trip to the highway to intercept Gorman’s vehicle.

The second officer saw Gorman and eventually believed he had found a traffic reason to pull him over. Following the second stop, the second officer performed a series of redundant record checks and conducted a dog sniff. The dog signaled the odor of drugs or drug-tainted currency. On the basis of the dog’s alert, the second officer obtained a search warrant, searched the vehicle, and found $167,070 in cash in various interior compartments.

No criminal charges arising from this incident were ever brought against Gorman. Instead, the government attempted to appropriate the seized money through civil forfeiture. Civil forfeiture allows law enforcement officials to “seize . . . property without any predeprivation judicial process and to obtain forfeiture of the property even when the owner is personally innocent.” Leonard v. Texas, 137 S. Ct. 847, 847 (2017).

Gorman contested the forfeiture by arguing that the coordinated stops violated the Fourth Amendment. He prevailed. The federal district court ordered that his money be returned and also awarded him attorneys’ fees. The Government appealed to the Ninth Circuit Court of Appeals.

ANALYSIS & CONCLUSIONS

The Court of Appeals (1) affirmed the lower court’s order granting claimant’s motion to suppress evidence seized pursuant to a traffic stop; (2) affirmed the award of attorneys’ fees; and (3) held that the search of claimant’s vehicle following coordinated traffic stops violated the Constitution.

The Court of Appeals held that the first stop of claimant’s vehicle was unreasonably prolonged in violation of the Fourth Amendment. The court reasoned that the Supreme Court has made clear that traffic stops can last only as long as is reasonably necessary to carry out the “mission” of the stop, unless police have an independent reason to detain the motorist longer. The “mission” of a stop includes “determining whether to issue a traffic ticket” and “checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.” Rodriguez v. United States, 135 S. Ct. 1609, 1615 (2015).

Additionally, the Court held that the dog sniff and search of claimant’s vehicle during the coordinated second vehicle stop followed directly in an unbroken causal chain of events from that constitutional violation; and consequently, the seized currency from the second stop was the “fruit of the poisonous tree” and was properly suppressed under the exclusionary rule.

Finally, the Court held that none of the exceptions to the “fruit of the poisonous tree” doctrine – the “independent source” exception, the “inevitable discovery” exception, and the “attenuated basis” exception – applied to claimant’s case.

Good decision.

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

Ninth Circuit Strikes Nevada Statutory Scheme Allowing Pretextual Stops

9th Circuit Court of Appeals, Administrative Search Doctrine, Bellingham Defense Attorney, Federal Crimes & Prosecutions, law enforcement, police, Pretext, Probable Cause, Reasonable Suspicion, Search and Seizure, Skagit County Criminal Defense, Traffic Infractions, Whatcom County Criminal Defense, ,

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In United States v. Orozco, the Ninth Circuit Court of Appeals held that a statute allowing Nevada law enforcement officers to stop and search commercial vehicles for no reason violates the Fourth Amendment as unlawfully pretextual.

BACKGROUND FACTS

In 2013, law enforcement received a tip that defendant Victor Orozco – a commercial truck driver – regularly transported illegal drugs across the border inside his semi truck. Unbeknownst to Orozco, Nevada had a statutory and administrative scheme  allowing its police officers to pull over and search commercial vehicles for contraband under the notion that these searched perform a public safety purpose.

On April 27, 2013, the tipster said Orozco would be driving through White Pine County,
Nevada. Trooper Zehr of the Nevada Highway Patrol was advised of the vehicle and its location. He was told he would have to develop his own probable cause to get the vehicle stopped because there could possibly be drugs in the vehicle, but there was nothing solid.

Troopers targeted Orozco’s truck and pulled it over. They discovered the truck had made several trips across the border. Eventually, a K-9 officer dog arrived and made a positive alert as to the presence of drugs. The troopers found a duffel bag containing twenty-six pounds of methamphetamine and six pounds of heroin in the sleeper compartment.

Prior to trial, Orozco moved to suppress the drug evidence on the ground that the inspection of his vehicle was an impermissible pretext “motivated by a desire to search for evidence of drug trafficking, rather than to conduct a commercial vehicle inspection.” However, because “safety inspections” were part of a facially valid administrative scheme, the district judge held that the stop of Orozco’s truck was lawful. Later, Orozco was convicted of two counts of possession with intent to distribute a controlled substance for which he was sentenced to 192 months in prison.

LEGAL ISSUE ON APPEAL

Orozco appealed his conviction on the issue of whether the stop was justified under the administrative search doctrine, which permits stops and searches, initiated in furtherance of a valid administrative scheme, to be conducted in the absence of reasonable suspicion or probable cause.

COURT’S ANALYSIS & CONCLUSION

In short, the Court of Appeals reversed the district court’s denial of Orozco’s motion to suppress, vacated his conviction for two counts of drug possession arising from the stop of his vehicle and remanded the case back to the lower court for further proceedings.

“Nevada Highway Patrol troopers made the stop in order to investigate criminal activity, even though they lacked the quantum of evidence necessary to justify the stop,” reasoned the Court of Appeals. Based on that, the stop was not justified under the administrative search doctrine, which permits stops and searches, initiated in furtherance of a valid administrative scheme, to be conducted in the absence of reasonable suspicion or probable cause.

The Court of Appels further reasoned that although an administrative scheme allowing Nevada law enforcement officers to make stops of commercial vehicles and conduct limited inspections without reasonable suspicion was valid on its face because its purpose was to ensure the safe operation of commercial vehicles, the evidence in this case, however, established beyond doubt that the stop of the defendant’s vehicle was a pretext for a stop to investigate information of suspected criminal activity short of that necessary to give rise to reasonable suspicion.

“The stop would not have been made in the absence of a tip that the defendant was possibly carrying narcotics. Accordingly, the stop was a pretextual stop that violated the Fourth Amendment.”

The Court further emphasized that the presence of a criminal investigatory motive, by itself, does not render an administrative stop pretextual, and nor does a dual motive—one valid and one impermissible. “Rather, the defendant must show that the stop would not have occurred in the absence of an impermissible reason.”

With that, the Court reversed Orozco’s convictions.

My opinion? Good decision. Pretextual stops are often used by police officers as an excuse to initiate a stop and search of automobiles suspected of being involved in criminal activity. These stops involve police officers stopping drivers for traffic violations – minor or otherwise – to conduct investigations which are separate and unrelated to the original reasons substantiating the stop. Pretextual traffic stops give police officer a lot of discretion in who they choose to stop and for what reasons. Too much discretion. Again, good decision.

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

SCOTUS Eliminates the “Provocation Rule”

42 U.S.C. § 1983, 9th Circuit Court of Appeals, Bellingham Defense Attorney, Confidential Informants, Constitutional Rights, Informant, law enforcement, police, Police Misconduct, Provocation Rule, Qualified Immunity, Search and Seizure, Skagit County Criminal Defense, United States Supreme Court, Whatcom County Criminal Defense, , ,

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In  County of Los Angeles v. Mendez, the U.S. Supreme Court held that the Fourth Amendment provides no basis to uphold the Ninth Circuit’s “provocation rule,” a doctrine which makes officers liable for injuries caused by their use of force.

BACKGROUND FACTS

The Los Angeles County Sheriff’s Department received word from a confidential informant that a potentially armed and dangerous parolee-at-large had been seen at a certain residence. While other officers searched the main house, Deputies Conley and Pederson searched the back of the property where, unbeknownst to the deputies, respondents Mendez and Garcia were napping inside a shack where they lived.

Without a search warrant and without announcing their presence, the deputies opened the door of the shack. Mendez rose from the bed, holding a BB gun that he used to kill pests. Deputy Conley yelled, “Gun!” and the deputies immediately opened fire, shooting Mendez and Garcia multiple times.

Officers did not find the parolee in the shack or elsewhere on the property.

PLAINTIFF’S CIVIL RIGHTS CLAIMS

For those who don’t know, the “Provocation Rule” holds that if a police officer recklessly promotes a potentially violent confrontation with a Fourth Amendment violation, the officer is liable for any injury caused by a subsequent use of force that results from that confrontation, even if the use of force itself was reasonable.

Armed with the “Provocation Rule,” Mendez and Garcia sued the police deputies and the County under 42 U. S. C. §1983. They advanced three Fourth Amendment claims: a warrantless entry claim, a knock-and-announce claim, and an excessive force claim. On the first two claims, the Federal District Court awarded Mendez and Garcia nominal damages. On the excessive force claim, the court found that the deputies’ use of force was reasonable, but held them liable nonetheless under the Ninth Circuit’s provocation rule, which makes an officer’s otherwise reasonable use of force unreasonable if (1) the officer “intentionally or recklessly provokes a violent confrontation” and (2) “the provocation is an independent Fourth Amendment violation,.

The Government appealed the case to the Ninth Circuit Court of Appeals. On appeal, the Ninth Circuit held that the officers were entitled to qualified immunity on the knock-and-announce claim and that the warrantless entry violated clearly established law. It also affirmed the District Court’s application of the provocation rule, and held, in the alternative, that basic notions of proximate cause would support liability even without the provocation rule.

The Government appealed the Ninth Circuit’s ruling to the U.S Supreme Court.

COURT’S ANALYSIS

In short, the U.S. Supreme Court held that the Fourth Amendment offers no basis for the Ninth Circuit’s “provocation rule.” It reasoned that the rule is incompatible with this Court’s excessive force jurisprudence, which sets forth a settled and exclusive framework for analyzing whether the force used in making a seizure complies with the Fourth Amendment. The Court reasoned that the legal issue is “whether the totality of the circumstances justifies a particular sort of search or seizure.” Tennessee v. Garner.

The Court reasoned that the provocation rule instructs courts to look back in time to see if a different Fourth Amendment violation was somehow tied to the eventual use of force. Problematically, this approach that mistakenly conflates distinct Fourth Amendment claims. To the extent that a plaintiff has other Fourth Amendment claims, they should be analyzed separately.

“The Ninth Circuit attempts to cabin the provocation rule by defining a two-prong test: First, the separate constitutional violation must “create a situation which led to” the use of force; and second, the separate constitutional violation must be committed recklessly or intentionally,” said the Court.

The U.S. Supreme thought this approach was mistaken. First, the rule relies on a vague causal standard. Second, while the reasonableness of a search or seizure is almost always based on objective factors, the provocation rule looks to the subjective intent of the officers who carried out the seizure:

“There is no need to distort the excessive force inquiry in this way in order to hold law enforcement officers liable for the foreseeable consequences of all their constitutional torts.”

Plaintiffs can, subject to qualified immunity, generally recover damages that are proximately caused by any Fourth Amendment violation. Here, reasoned the Court, if respondents cannot recover on their excessive force claim, that will not stop them from recovering for injuries proximately caused by the warrantless entry.

“The Ninth Circuit’s proximate-cause holding is similarly tainted,” said the Court. Its focuses solely on the risks foreseeably associated with the failure to knock and announce—the claim on which the court concluded that the deputies had qualified immunity—rather than the warrantless entry.

My opinion? I concur with  blogger Radley Balko’s insights on this. He blogs about criminal justice, the drug war and civil liberties for The Washington Post, and says the following:

“The cops, on the other hand, engaged in some incredibly sloppy policing that nearly got someone killed. They violated the Mendezes’ Fourth Amendment rights not once, but twice. Then they filled the couple with bullets after they mistook Angel Mendez’s reach for his pellet gun as a threat. Angel Mendez was shot five times, and lost his right leg below the knee. Jennifer Mendez was shot in the back. That was 6½ years ago. They still haven’t seen a dime. And after Tuesday’s ruling, it seems unlikely that they ever will.”

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.

Immigration Arrests Up 38 Percent Under Trump

42 U.S.C. § 1983, 9th Circuit Court of Appeals, Bellingham Defense Attorney, Constitutional Rights, Detention, Immigration, Search and Seizure, Skagit County Criminal Defense, Trump Administration, Whatcom County Criminal Defense, , ,

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Stephen Dinan of The Washington Times reports that under the Trump administration, arrests of criminal aliens has increased by 38 percent.
Unshackled from the restrictions under the Obama administration, immigration agents and officers are making far more arrests — but are still keeping their chief focus on criminals, authorities said as the released number detailing the first 100 days under President Trump.
Arrests of criminal aliens is up nearly 20 percent, reaching nearly 30,500, while arrests of those without criminal convictions is up 60 percent, reaching about 10,800. Combined, they show a rise of 38 percent in total arrests by U.S. Immigration and Customs Enforcement (ICE), the agency responsible for policing the interior of the country.
Dinan reports that perhaps most striking is surge in at-large arrests made out in the community. Those have risen by 50 percent compared to a year earlier, according to ICE.
While criminals are still the chief targets, ICE said it has reversed the Obama administration’s policy of carving out entire classes of illegal immigrants from any danger of deportation. That’s expanded the potential targets from just a couple million to potentially almost all of the estimated 11 million illegal immigrants now in the U.S.
“These statistics reflect President Trump’s commitment to enforce our immigration laws fairly and across the board,” said Thomas Homan, acting director of ICE.

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.

Proposed Law Evicts Suspected Meth Users From Hotels

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Due Process, Legislation, Methamphetamine, Search and Seizure, Skagit County Criminal Defense, Whatcom County Criminal Defense, , ,

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Interesting article by Marilyn Napier of the Skagit Valley Herald reported that a new state law proposed by the Skagit County Prosecuting Attorney will allow local governments to evict residents from certain buildings contaminated by methamphetamine, even without evidence of manufacturing. The new law takes effect on July 23, 2017.

State House Bill 1757 was created by the problems that arose at Burlington’s Sterling Motor Inn. Apparently, the hotel was found to have widespread high levels of methamphetamine contamination. As a result, the City of Burlington wanted residents of the motel to evacuate because the level of contamination was considered unsafe. Although the residents, some of whom had lived at the motel for years, left voluntarily, the city and Skagit County did not have the legal authority to evict them.

Because of the Clandestine Drug Lab law, the Skagit County Public Health Department was unable to evict the residents because the law required that there be evidence of drug manufacturing.

THE PROPONENTS.

Skagit County Prosecuting Attorney Rich Weyrich and the Washington Association of Prosecuting Attorneys wrote the bill, which was sponsored by Rep. Dave Hayes, R-Camano Island, and was passed by both the state House and state Senate in mid-April.

“This takes away the idea that you have to have evidence of manufacturing meth. Now you just have to show that there is meth residue present,” Weyrich said. Gov. Jay Inslee signed the bill April 25.

Burlington Mayor Steve Sexton said he doesn’t think the Sterling Motor Inn incident is going to be the last time the city deals with a contaminated property.

“I think that (the law) is what it takes for Skagit County to do the job they should do in situations like that,” he said. “This is what the county said they needed.”

A BLIGHT IN THE COMMUNITY.

Apparently, the state health department reported that about 60 percent of the rooms did not have fire safety measures, such as working smoke detectors. Violations also included rodent infestation in the laundry room, storage shed and the electrical panel room.

Beyond the failed health inspection, the motel had been the center of about 200 calls to police in 2015, a number that had continued to increase since 2009. According to police, officers had been called for weapon offenses, domestic violence, drug deals, prostitution, burglary and assault. Harrison added the law is good news for the public.

My opinion? This law is questionably unconstitutional. Although governments can pass laws for public safety reasons, they cannot make laws which violate people’s constitutional rights. Here, an “automatic eviction” lacking due process – or based on evidence which was obtained through unlawful search and seizure – might end up patently violating people’s individual rights. We’ll see what happens.

For more information on Search and Seizure, please refer to my Legal Guide titled, Search & Seizure: Basic Issues Regarding Their Search for Weapons, Drugs, Firearms and Other Contraband.

And 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.

Students, Not Suspects

ACLU, Bellingham Defense Attorney, law enforcement, police, Search and Seizure, Studies, Whatcom County Criminal Defense, , ,

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Interesting article by Claudia Rowe of the Seattle Times describes a report from the American Civil Liberties Union (ACLU) saying says that police officers patrolling school hallways brings significant costs to the learning environment and finances of our schools.

“We were surprised by the degree to which officers have almost unfettered ability to enforce in school discipline,” said Vanessa Hernandez, youth policy director at the ACLU who wrote the “Students Not Suspects” report. “That’s a pretty dangerous road to go down, to have student discipline in an educational environment handed to a law enforcement agent, and it really sends a troubling message to students about how we perceive them.” The advocacy organization examined data from the 2013-14 through 2015-16 school years in more than 100 districts.

National data show a strong correlation between placing officers in schools and increased youth referrals to the criminal justice system. And in Washington, state law makes it a misdemeanor to cause a disturbance within school walls. “Any student misbehavior — from talking back to a teacher, to making an off-color joke, to throwing spitballs — could be treated like a crime,” Hernandez said.

Thirty years ago, few schools used police to respond to misbehavior. But in recent decades the number of officers patrolling the halls has ballooned — from fewer than 100 nationally in the late 1980s, to an estimated 17,000 today. Yet no state agency systematically tracks police in schools, or the impact on students. Most commonly, officers are contract employees who report to their police departments, not district administrators.

In Washington, Hernandez added, at least 3,400 kids were either arrested on campus or referred to law enforcement for prosecution during in the 2013-14 school year, which is the most recent data available.

In a time when state lawmakers are wrestling with a multibillion dollar hole in funding for education, schools are spending millions on police officers, the report found.

Seventeen districts pay the entire cost of their school police, covering salaries, benefits and even, in two cases, leasing patrol cars. On average, schools contribute about $62,000 annually for each full-time officer, and up to $125,000 at the high end.

 That adds up fast in districts that use officers in multiple schools. Spokane, for example, paid more than $1 million for school officers during the 2014-15 school year, the report says. And Kent — which is facing an $18 million budget hole — spent almost $500,000 in 2015-16. (Seattle’s school police officers are covered by the city, not the school district budget.)

Other approaches, like restorative justice and trauma-informed teaching, have been shown to reduce disciplinary incidents by addressing the underlying causes of misbehavior, and the ACLU suggests that money for police might be better spent on school psychologists, social workers or teaching assistants.

Yet momentum has moved in the opposite direction. Nationally, 24 percent of elementary schools and 42 percent of middle- and high schools routinely hire police officers, according to the report.

But not all schools have police officers. In high-poverty schools — whether urban or rural — police are a much more routine presence. In small-town Walla Walla, for example, the alternative school where 80 percent of kids are low-income, has an officer. But the regular comprehensive high school, where only 45 percent of students are low-income, does not. Even the tiny Liberty district, with about 450 students, has a police officer on staff, the ACLU found.

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.