Category Archives: Search Warrant

Stingray “Spy” Devices

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This undated handout photo provided by the U.S. Patent and Trademark Office shows the StingRay II, manufactured by Harris Corporation, of Melbourne, Fla., a cellular site simulator used for surveillance purposes. (AP Photo/U.S. Patent and Trademark Office)

Intimidating, no?

This suitcase-sized device, called Hailstorm or Stingray, is a controversial cellular phone surveillance device manufactured by the Harris Corporation. It is designed to sweep up basic cellphone data from a neighborhood and identify unique subscriber numbers. That data is then transmitted to the police, allowing them to locate a phone without the user even making a call or sending a text message. It’s the newest, most advanced technology in spyware which essentially allows police to observe, record and otherwise pinpoint your cell phone activity. And, of course, a growing number of police departments are purchasing these devices.

Stingrays cost as much as $400,000 and acts as a fake cell tower. The system, typically installed in a vehicle so it can be moved into any neighborhood, tricks all nearby phones into connecting to it and feeding data to police. In some states, the devices are available to any local police department via state surveillance units. The federal government funds most of the purchases, via anti-terror grants.

These devices are used to spy on people’s words, locations and associations. Stingrays can capture everything from metadata (who called whom, when, and sometimes from where) to the content of calls.

A news article from USA Today titled, Cellphone Data Spying: It’s Not Just the NSA describes how numerous police agencies across the country refuse to admit whether they’ve used Stingrays in surveillance. According to the article, most police agencies deny public records requests, arguing that criminals or terrorists could use the information to thwart important crime-fighting and surveillance techniques. Police maintain that cellphone data can help solve crimes, track fugitives or abducted children or even foil a terror attack.

The American Civil Liberties Union (ACLU) has investigated the use of Stingrays and has also successfully identified 54 agencies in 21 states and the District of Columbia that own Stingrays. Many agencies continue to shroud their purchase and use of Stingrays in secrecy.

A growing number of courts and legal authorities are increasingly wary on whether Stingrays violate citizen’s rights against unlawful search under the Fourth Amendment to the U.S. Constitution. For example,  in FROM SMARTPHONES TO STINGRAYS: CAN THE FOURTH AMENDMENT KEEP UP WITH THE TWENTY-FIRST CENTURY? attorney Brittany Hampton wrote a Note in the University of Louisville Law Review which discussed the questionable use of the Stingray devices by police agencies.

In her article, Ms. Hampton argues that individuals have a reasonable expectation of privacy in their movements when using their cellphones; therefore, the use of the Stingray constitutes a search within the meaning of the Fourth Amendment. She also discusses the need for the United States Supreme Court to develop a clear warrant requirement for the monitoring of an individual using the Stingray device. Ultimately, Hampton advocates a warrant requirement for utilizing the Stingray devices for police tracking purposes because the warrantless use of the Stingray is an unreasonable search under the Fourth Amendment.

My opinion? I wholeheartedly agree with Ms. Hampton, the ACLU and other legal experts on this issues. Using Stingrays is an unlawful search. Quite frankly, the government should not have carte blanche secret access to people’s cell phone use and information. It’s overly intrusive and distasteful that the government can, without warning, essentially use people’s cell data as pretextual evidence to investigate our whereabouts, listen to our conversations and ultimately charge us with crimes.

Even worse – and speaking as a criminal defense attorney – it’s disturbing that police agencies can use the information obtained from Stingrays as probable cause to obtain search warrants of people’s homes and seize evidence therein. Moreover, if I move to suppress the evidence gained from the search warrant as the fruits of an unlawful search, local police agencies deny and circumvent my Motions to Compel Evidence and Public Disclosure Requests by simply having the feds conduct the Stingray search. This is bad.

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

State v. Martines: WA Supreme Court Finds Defendant Guilty of DUI on Blood Test Case

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Bad news.

In State v. Martines, the Washington Supreme Court reversed the WA Court of Appeals Division I. I blogged about this case last year in State v. Martines: More Good Caselaw on Blood tests Taken After DUI Arrests. There, the WA Court of Appeals version of State v. Martines held that the blood test performed on Martines was an unlawful warrantless search. The Court of Appeals also reasoned that drawing blood and testing blood constitute separate searches, each of which requires particular authorization, and that the warrant here authorized only a blood draw.

The original Martines opinion appeared strong. It was rooted in the United States Supreme Court’s decision in Missouri v. McNeely; which requires police officers to obtain search warrants for blood draws in DUI cases when exigent circumstances do not otherwise exist. It also followed Washington State legalizing marijuana, thus necessitating stronger regulations and monitoring of blood tests performed during DUI investigations.

The WA Supreme Court decided differently in a short, scathing opinion signed by all justices.

First, the Court held that a warrant authorizing the testing of a blood sample for intoxicants does not require separate findings of probable cause to suspect drug and alcohol use so long as there is probable cause to suspect intoxication that may be caused by alcohol, drugs, or a combination of both.

Second, the Court  further held that the search warrant lawfully authorized testing Martines’s blood sample for intoxicants because it authorized a blood draw to obtain evidence of DUI. In other words, the search of Martines’s blood did not exceed the bounds of the search warrant when a sample of Martines’s blood was extracted and tested for intoxicants anyway.

My opinion?

Bad decision. I’m amazed the WA Supremes didn’t discuss Missouri v. McNeely at all. Not once. McNeely profoundly and significantly evolved search and seizure law concerning blood draws in DUI investigations. Indeed, McNeely was the underpinnings for Division One Court of Appeals case State v. Martinez. Yet the WA Supremes ignore McNeely as if it didn’t exist. Ignoring case precedents violates stare decisis, plain and simple.

Hopefully, this case gets appealed to the U.S. Supreme Court for further review.

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

Bellingham Police Get Software to Map Crime Patterns

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This screen-grab is a sample interactive map that shows criminal activity in the downtown Seattle area. Bellingham is buying similar Predictive Policing Software.

According to the Bellingham Herald, the Bellingham Police Department plans to buy “Predictive Policing Software” that will map crime patterns in the city and help officers decide where to patrol.

For those who don’t know, “Predictive Policing Software” is computer technology which uses advanced mathematics and algorithms to predict the times, locations and “types” of many crimes in any given jurisdiction. Police agencies can use this software to predict property crimes, drug incidents, gang activity, and gun violence, as well as traffic accidents.

The software, by Bair Analytics, will help compile reports currently put together by the department’s current crime analyst, who plans to retire soon.

According to the Bellingham Herald, officers currently use similarly compiled crime information to help detect criminal patterns and choose where they should focus their efforts. For example, if a series of home break-ins has been reported in a specific neighborhood, and officers see that similar methods were used to get into the homes, they start looking at what days and times those crimes happened to try to prevent another or catch the criminal in the act.

“A few years back we had a long series of rooftop burglaries and it took a while to catch the guys that were doing it,” Vander Yacht said. “We had to figure out the best times and places for them to do that.”

The software also allows interested citizens to sign up for alerts and view an interactive map of criminal activity in their area. The information included on the map is somewhat limited to protect the privacy of victims.

The map, which can be found at raidsonline.com, currently shows information for 15 Washington cities, including Seattle, Richland and Pasco. RAIDS stands for Regional Analysis and Information Data Sharing.

My opinion? Interesting technology. I don’t see if it violates people’s Constitutional Rights or infringes on their privacy. There shouldn’t be any problem with the implementation of this technology as long as the information does not target a particular individual.

Still, Big Brother only gets better at watching  . . .

Bellingham is buying predictive policing software that will map crime patterns in the city and help officers decide where to patrol. The software, by Blair Analytics, will essentially replace the Bellingham Police Department’s current crime analyst.

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

State v. Wisdom: Unlawful Search of Zipped Shaving Kit Bag

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Interesting opinion. In State v. Wisdom, the WA Court of Appeals Division III decided the removal and warrantless inspection of a zipped shut shaving kit bag found in the front seat of a stolen vehicle the defendant was driving was not a lawful search incident to arrest because  the defendant sat handcuffed in the patrol car at the time of the seizure and search of the toiletry bag. The methamphetamine found in the zipped shut shaving kit is not lawful pursuant to the impound inventory doctrine, as unzipping the kit exceeded the lawful scope of an impound.

Defendant Heath Wisdom drove a Chevrolet pickup truck with an ATV in its back. Someone earlier reported both vehicles as stolen. Yakima County Sheriff Deputy Nate Boyer, while on patrol, passed the pickup, and Boyer’s automated license plate reader identified the pickup as stolen. Officer Boyer pulled Wisdom over and arrested him for possession of a stolen vehicle. Boyer handcuffed Wisdom, searched his body, and escorted him to the patrol vehicle. Officer Boyer found on Wisdom’s body a pipe that Wisdom admitted he used for smoking methamphetamine.

Deputy Nate Boyer advised Heath Wisdom of his Miranda rights. Officer Boyer asked if there were drugs in the truck, and Wisdom replied that methamphetamine lay on the front seat. Officer Boyer looked inside the cab of the truck and saw filters, some cleaner, and a black “shaving kit type” bag. Officer Boyer concluded that the bag contained the methamphetamine. The toiletry bag was closed, but Boyer spied money through the mesh side of the bag.

After photographing the truck, Deputy Boyer removed the bag from the vehicle, opened it, and found methamphetamine, cocaine, ecstasy, heroin, drug paraphernalia, and two thousand seven hundred dollars in cash. Heath Wisdom told Deputy Boyer that he owned the black bag. Deputy Boyer had not asked Wisdom if he owned the black bag before searching inside the bag.

Deputy Boyer never obtained a warrant for his search, nor did he request Heath Wisdom’s consent before opening the black bag. Law enforcement impounded the truck and ATV, since the legal owner could not be located.

The State of Washington charged Heath Wisdom with three counts of Possession of a Controlled Substance in violation of RCW 69.50.4013(1) (cocaine, ecstasy, and heroin) and one count of Possession of a Controlled Substance with Intent to Deliver under RCW 69.50.401(1) (methamphetamine). Wisdom moved under CrR 3.6 to suppress all evidence found in the black toiletry bag. However, the trial court denied Heath Wisdom’s motion to suppress. The WA Court of Appeals accepted review of this case.

First, the Court reasoned that the search incident to arrest exception to the warrant requirement did NOT excuse police from obtaining a search warrant before unzipping and perusing the inside of the shaving kit bag. The court’s opinion was quite lengthy in explaining the need for society to trust police, and that doing so required officers to obtain search warrants in cases like this, and that failure to do so violates a defendants rights under article I, section 7 of the WA Constitution as well as the Fourth Amendment to the U.S. Constitution.

The Court emphasized how the caselaw treats “luggage and other closed packages, bags, and containers” as unique for purposes of police searches. Washington courts recognize an individual’s privacy interest in his closed luggage, whether locked or unlocked. Indeed, the Court gave a very colorful analyses on this subject:

A person does not rummage through a woman’s purse, because ofsecrets obtained therein. A man’s shaving kit bag can be likened to a woman’s purse. The kit bag could obtain prescription drugs, condoms or other items the owner wishes shielded from the public. The bag is intended to safeguard the privacy of personal effects. Literature, medicines, and other things found inside a bag may reveal much about a person’s activities, associations and beliefs.

The Court further reasoned that Washington allows a few jealously and carefully drawn exceptions to the warrant requirement, which include exigent circumstances, searches incident to an arrest, inventory searches, plain view searches, and Terry stops. Furthermore, under Arizona v. Gant, a warrantless vehicle search incident to arrest is authorized when the arrestee would be able to obtain a weapon from the vehicle or reach evidence ofthe crime of arrest to conceal or destroy it. Here, Heath Wisdom sat handcuffed in the patrol car at the time of the seizure and search of the toiletry bag. He lacked access to the bag.

Furthermore, under State v. Snapp, the Court reasoned the WA Constitution disapproves expansive application of the search-incident-to arrest exception to the period of time after the arrestee is secured and attendant risks to officers have passed. When a search can be delayed without running afoul of concerns for officer safety or to preserve evidence of the crime of arrest from concealment or destruction by the arrestee, and does not fall within another applicable exception, the warrant must be obtained. The police officer can prevent destruction of evidence by holding the bag as a sealed unit until obtaining a warrant.

Finally, the Court ruled that the police officer’s inventorying of the pickup’s contents did NOT excuse the need to obtain a search warrant. Inventory searches, unlike other searches, are not conducted to discover evidence of crime. Although a routine inventory search does not require a warrant, a police department policy should not, however, justify an unconstitutional search. The permitted extent of an inventory search pursuant to police department policy must be restricted to effectuating the purposes that justify the exception warrant clause.

In conclusion, the Court of Appeals held the warrantless search inside of Mr. Wisdom’s black bag was not justified by either a search incident to arrest or an inventory search. The court reversed the trial court’s denial of Mr. Wisdom’s motion to suppress evidence, reversed his four convictions, and dismissed all charges filed against him.

Good 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.

State v. Reis: Search & Seizure in Medical Marijuana Case

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In State v. Reis, the WA Supreme Court decided that although medical marijuana use is a defense, police officers can still obtain search warrants and search people’s homes if sufficient probable cause of criminal activity exists.

In 2012, Detective Thomas Calabrese received an anonymous tip from an individual living in the Shorewood area of Burien, informing him that a man named “William” was actively growing marijuana in a house in that neighborhood. The informant, who feared retaliation by Reis, declined to provide any additional information. Detective Calabrese began investigating.

He conducted stakeout surveillance of the home and watched the defendant William Reis tending to numerous marijuana plants growing in the backyard. The detective also heard a distinct humming sound coming from the northwest side of the target home and observed black plastic covering the daylight basement window. Detective Calabrese also noticed condensation on this window.

Detective Calabrese also discovered Mr. Reis had a prior DV conviction and, during that arrest, officers discovered significant evidence of a marijuana grow operation, as well as a rifle and $18,000 cash hidden in the attic. Additional searches of Reis’s financial records in 2005 connected him to a large marijuana grow operation in California. Detective Calabrese also learned that Reis had been arrested in 2011 for possession of 1.3 grams of marijuana.

Based on this information, Detective Calabrese put all of this information in an affidavit of probable cause to support a search warrant of Reis’s home. Judge Eide granted a search warrant, finding probable cause to believe that Reis was violating Washington’s Uniform Controlled Substances Act, RCW 69.50. A search of Reis’s home pursuant to the search warrant revealed plants, scales, ledgers, sales receipts, and tools indicative of a marijuana grow operation. The search also revealed 37 plants and 210.72 ounces of cannabis.

Reis moved to suppress the evidence on the basis that officers lacked probable cause to search his home. The trial court denied his motion. The WA Court of Appeals granted review. They decided the authorized use of medical marijuana under RCW 69.51A.040 does not stop an officer from searching a home for criminal activity. Although compliant use of medical marijuana under the statute is an affirmative defense, it does not negate probable cause required for a search warrant. State v. Reis, 180 Wn.App. 438, 322 P.3d 1238 (2014). The WA Supreme Court  granted review and affirmed the Court of Appeals.

The WA Supremes reasoned that RCW 69.51A.040, as passed, does not decriminalize the medical use of marijuana. Instead, the plain language of the statute establishes a limited exception to the general prohibition against marijuana that existed at the time that the search warrant in this case issued. The Court summarized it best here:

The legislature may have intended to create heightened protections for qualifying patients who registered. However, because registration is currently impossible, the statute provides qualifying patients with only an affirmative defense until the legislature is able to establish a registry. Therefore, we reject Reis’s argument and affirm the Court of Appeals.

The Court describes how the “Medical Marijuana Defense” works under RCW 69.51A.040.

There are six required “terms and conditions” contained within RCW 69.51A.040. Subsection (1) places limits on the quantity of cannabis that a qualifying patient or designated provider may possess. Subsections (2) and (3) require registration with the Department of Health-now impossible in light of the governor’s veto-and require that the patient keep their registration within their home and present it to inquiring investigating officers. Subsections (4 ), (5), and (6) require that the investigating officer not possess evidence that the qualifying patient or designated provider is converting marijuana for their own use or benefit, or otherwise violating distribution requirements or registration requirements. If a qualifying patient or designated provider complies with all of these requirements, including registration, the use of marijuana does not constitute a crime.

Here, the search was valid because the plain language of the statute and the legislative intent lead to the conclusion that a user or possessor of cannabis may raise only an affirmative defense.

My opinion? Hate to say, but the reasoning makes sense. After all, assaulting people in the street is still a crime. One must prove a defense – hypothetically speaking, self-defense – by a preponderance of the evidence in order to be found not guilty of the crime of assault. The same reasoning applies here. The medical use of marijuana does not decriminalize marijuana use – it only provides a defense if one is charged with marihuana-related crimes. Police officers can still investigate citizens and apply for search warrants if probable cause exists that a crime is being committed.

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

State v. A.A.: Unlawful Search of Juvenile

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 In State v. AA, the Washington Court of Appeals decided an officer who detained a runaway juvenile under RCW 13.32A, the Family Reconciliation Act, unlawfully removed methamphetamine and marijuana from the youth’s pocket. The court reversed his conviction.

In State v. AA, the juvenile defendant A.A. was reported as a runaway. Officer Escamilla found A.A. walking down an alley a few blocks north of his mother’s house. The Officer detains AA and conducts a search before taking AA to the Crisis Residential Center (CRC), a detention center for minors.

Officer Escamilla searched A.A. near his patrol car. During the search, the officer found methamphetamine in a coin pocket of A.A.’s pants and marijuana in another pocket. The officer then transported A.A. to a juvenile detention center, rather than the CRC. The State charged A.A. with two counts of Unlawful Possession of a Controlled Substance.

The trial court denied AA’s motion to suppress the evidence. At the CrR 3.6 hearing, Officer Escamilla testified that A.A. was “just walking down an alley” and appeared “upset,” but that he was not engaged in criminal activity and did not appear dangerous to himself or others. At a bench trial, A.A .was found guilty on both drug charges. He appealed. The Court of Appeals took the case.

The sole issue on appeal was whether the trial court mistakenly concluded Officer Escamilla’s search of  A.A. was reasonable under the Family Reconciliation Act (the Act) because A.A. was going to be transported to the CRC, a secure facility for juveniles, which requires a search of juveniles before admission.

The Court of Appeals decided that while an officer may lawfully conduct a pat-down search for weapons prior to transporting the youth, the officer may not conduct a full search.

The Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution prohibit unreasonable searches and seizures.

The Court reasoned that Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution  prohibit unreasonable searches and seizures. Under these provisions, warrantless searches are “per se” unreasonable. However, a search incident to a lawful arrest is a recognized exception to the warrant requirement. The exception allows an officer to search an arrestee for weapons as a measure to protect the officer or to search for evidence that may be destroyed. The community caretaking function, which allows for limited searches when it is necessary for police officers to render emergency aid or assistance, is also a recognized exception to the warrant requirement. These types of searches are “divorced” from a criminal investigation. Finally, the State has the burden of proving the search was lawful.

The Court reasoned that here, the particular circumstances did not justify the search of A.A.’s pockets. Once the officer conducted the pat-down search and determined that A.A. did not have a weapon, the search should have stopped. A.A. had not committed a crime and, therefore, there was no need to preserve evidence of a crime. A.A. did not exhibit signs of dangerousness to himself or others. The only concern was for officer safety.

Finally, the Court reasoned that although A.A. would be transported to a detention facility with other minors, this facility “was a noncriminal protective custody situation, which requires us to accord maximum weight to A.A.’s privacy interest in evaluating the reasonableness of the search.”

The Court of Appeals reversed A.A.’s conviction.

My opinion? Excellent decision. The law was simple, and simply applied. The State failed to establish an exception to the warrant requirement. Period. 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.

State v. Peppin: No Privacy for Public File Sharing

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The Benefits of Electronic File Transfer | GoAnywhere MFT

In State v. Peppin, the WA Court of Appeals ruled law enforcement’s warrantless use of enhanced  peer to peer file sharing software to remotely access shared files on an individual’s computer does not violate either the Fourth Amendment of the United States Constitution or article I, sec. 7 of the Washington Constitution.

In other words, an individual does not have a constitutionally protected privacy right in image files he shares with the public.

Here, defendant Casey Peppin was found guilty of three counts of Possession of Depictions of Minors Engaged in Sexually Explicit Conduct in the First Degree under RCW 9.68A.670. On December 29,2011, Spokane Detective Brian Cestnik conducted an online investigation of the Gnutella network to identify persons possessing and sharing child pornography. Using peer to peer software called “Round Up” version 1.5.3, Detective Cestnik found child pornography on Mr. Peppin’s computer in a shared folder. He obtained a warrant, searched he defendant’s home and recovered the computer(s) allegedly used to view and share images of minors engaged in sexual conduct.

BACKGROUND ON “PEER TO PEER FILE SHARING”

For those who don’t know, “peer to peer file sharing” is a method of Internet communication that allows users to share digital files. User computers link together to form a network; the network allows direct transfer of shared files from one user to another. Peer to peer software applications allow users to set up and share files on the network with others using compatible peer to peer software. For instance, LimeWire and Shareaza are software applications that allow users to share files over the Gnutella network.

To gain access to shared files, a user must first download peer to peer software, which can be found on the Internet. Then, the user opens the peer to peer software on his or her computer and conducts a keyword search for files that are currently being shared on the network. The results are displayed and the user selects a file for download.

The downloaded file is transferred through a direct connection between the computer wishing to share the file and the user’s computer requesting the file. The Gnutella network gives users the ability to see a list of all files that are available for sharing on a particular computer.

F or example, a person interested in obtaining child pornographic images opens the peer to peer software application on his or her computer and conducts a file search using keyword terms such as “preteen sex.” The search is sent out over the network of computers to those using compatible peer to peer software. The results of the search are returned and displayed on the user’s computer. The user selects the file he or she wishes to download. The file is then downloaded directly from the host computer onto the user’s computer. The downloaded file is stored on the user’s computer until moved or deleted.

A peer to peer file transfer is assisted by reference to an Internet Protocol (IP) address. In general, the numeric IP address is unique to a particular computer during an online Internet session. The IP address provides a location, making it possible for data to be transferred between computers.

This is where the police work comes in: investigators can search public records on the Internet to determine which Internet provider is assigned the IP address. Investigators can contact the Internet provider and gain information about the user based on the IP address assigned to the computer.

THE INVESTIGATIONS

Here, Detective Cestnik searched the Gnutella network for “pthc,” the commonly used term for preteen hard core Internet pornography. Clerk’s Papers (CP) at 17. The results indicated that images matching the search terms could be found on a host computer with an IP address linked to Spokane. Detective Cestnik’s check of the IP address through two different Internet search engines confirmed that the IP address was in Spokane and that Qwest Communications was the provider.

Next, Detective Cestnik presented Qwest Communications with a search warrant requesting information on the IP address for the host computer. Qwest Communications advised Detective Cestnik that the IP address was connected to Mr. Peppin and provided Mr. Peppin’s address.

Detective Cestnik then obtained a search warrant for Mr. Peppin’s computer. A complete forensic investigation uncovered over 100 videos of what appeared to be minors engaged in sexually explicit conduct.

TRIAL OUTCOME

Mr. Peppin moved to suppress the computer files downloaded by Detective Cestnik during his Internet search. He maintained that law enforcement’s access and download of his computer files via the Internet was an intrusion into his private affairs and an unlawful warrantless search. The court denied Peppin’s motions to suppress. At trial, he was found guilty on all 3 counts.

COURT OF APPEALS DECISION

The legal issue addressed by the court was whether Mr. Peppin had a constitutionally protected privacy right in the image files he shared with the public. In short, the Court said, “No.”

First, federal circuit courts have consistently held that a person who installs and uses file sharing software does not have a reasonable expectation ofprivacy in the files to be shared on his or her computer.

Second, even the broader protection of the Washington State Constitution also does not offer any relief to Mr. Peppin. It stated, “What is voluntarily exposed to the general public and observable without the use of enhancement devices from an unprotected area is not considered part of a person’s private affairs.” The court emphasized that here, Mr. Peppin voluntarily offered public access to the computer files obtained by Detective Cestnik. Mr. Peppin used peer to peer software to make these shared files available without restriction. Anyone wanting to view or download the files could do so. Law enforcement’s access of these files was not an intrusion into Mr. Peppin’s private affairs.

The court summed it up:

Additionally, this is not the type of information that a citizen of this state is entitled to hold as private. The inherent nature of peer to peer software is the public sharing of digital computer files. Individuals using file sharing software cannot expect a privacy interest in files they hold open to the public. Again, Mr. Peppin’s use of peer to peer file sharing voluntarily opened this information to the public for anyone to access, including law enforcement. There is no disturbance of a person’s private affairs when law enforcement accesses shared computer files that the person holds publically available for viewing and download. Thus, there is no violation within the context of article I, section 7 of the Washington Constitution.

My opinion? Although I understand the logic – as well as the government’s desire to criminalize the sexual exploitation of minors – at what point does “private” communications end and “public” communications begin? How intrusive is the government’s technology? How often do they use the internet to spy on citizens for public safety reasons? I suppose we’ll see . . .

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

State v. Manlove: “Deliberate Cruelty” Enhancements Apply to Property Crimes.

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In State v. Manlove, the Division III Court of Appeals held that a upward sentencing enhancement applies to Residential Burglary and other property crimes if a jury finds the defendant’s conduct during the commission of crime manifested deliberate cruelty to the victim.

In 2005, Paula Parker and her then-husband purchased a remote cabin on forty acres in Stevens County, Washington. The couple became acquainted with their neighbor, David Manlove, whose home lay a half mile from Parker’s cabin.

Paula Parker divorced in 2011, and she retained sole custody of the cabin. Parker and Manlove occasionally joined one another at each other’s homes for dinner. The two enjoyed a pastoral, idyllic, and platonic relationship, until . . .

Paula Parker went on vacation from June 19 to July 2, 2013 and returned to her cabin the morning of July 3. Once inside her home, Parker discovered her cabin was ransacked. Property was destroyed. The intruder left a hand-rolled cigarette. Paula realized her neighbor, David Manlove, smoked similar cigarettes.

Parker contacted police and informed them she believed the culprit was Manlove. She avoided her home for a few days.

On July 7, she returned home. Again, her house was ransacked. The damage was even more extensive this time. The intruder shredded Paula Parker’s medical records, high school diploma, and college degree. Parker kept her mother’s ashes in an urn, and the prowler dumped the ashes onto the floor.

After surveying the damage at Paula Parker’s cabin on July 8, 2013, Stevens County sheriff deputies traveled to David Manlove’s home. When asked why he damaged Paula Parker’s home, Manlove responded, “It’s my mountain.” When arrested, Manlove repeated several times: “It’s my mountain so there’s no crime.”

Law enforcement obtained two search warrants for David Manlove’s home. Officers seized many items that belonged to Paula Parker, including a hatchet, a chainsaw, a veil for a belly dancing costume, a mortar and pestle, journals, and jewelry. Officers also found marijuana plants and a rifle.

David Manlove was charged with Residential Burglary, Unlawful Possession of a Firearm in the Second Degree, Possession of more than Forty Grams of Marijuana, Possession of Stolen Property in the Third Degree, and Malicious Mischief in the First Degree. The State further alleged that Manlove committed Residential Burglary with deliberate cruelty in violation of RCW 9.94A.535(3)(a).

The trial court found Manlove competent to stand trial after an evaluation by Eastern State Hospital. At the close of trial, the trial court instructed the jury that: “Deliberate cruelty” means gratuitous violence ,or other conduct which inflicts physical, psychological, or emotional pain as an end in itself, and which goes beyond what is inherent in the elements of the crime or is normally associated with the commission of the crime. Clerk’s Papers (CP) at 177. The jury found David Manlove guilty as charged.

On appeal, the issue was whether the aggravating factor of deliberate cruelty under RCW 9.94A.535(3)(a) applies to Residential Burglary.

The Court of Appeals decided, “Yes.” They gave two reasons why, under appropriate circumstances, the deliberate cruelty aggravating factor may apply to a property crimes. First, when the legislature desired to limit the application of an aggravating factor to certain offenses, it expressly provided that limitation in the statute. Second, the statute allows a sentence enhancement when the current offense is a burglary and the victim ofthe burglary was present in the building or residence when the crime was committed.

The Court affirmed Manlove’s convictions and sentence, including the enhancement for deliberate cruelty.

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

State v. Budd: Ferrier Warnings Improperly Given

Bellingham Defense Attorney, Constitutional Rights, Dismissal, Due Process, Evidence, felony, Ferrier Warnings, Knock & Talk, law enforcement, police, Privacy, Search and Seizure, Search Warrant, Washington Court of Appeals,

When Police Knock on the Door: What Are My Rights? - The Seattle Criminal Lawyer Blog

Good decision. In State v. Budd, the WA Court of Appeals decided a law enforcement officer must properly deliver all three parts of the Ferrier warnings before entering a residence.

Some background on Ferrier warnings is necessary. In State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998) the WA Supreme Court held that, before entering a citizen’s home without a warrant, a law enforcement officer must (1) ask the citizen for consent, (2) inform the citizen that he can revoke consent at any time and (3) notify the citizen that he can limit the scope of the entry into the home. If an officer fails to provide these Ferrier rights/warnings, then any evidence obtained from the search is “fruits of the poisonous search” and also subject to being suppressed.

Appellant Michael Allen Budd was convicted of Possession of Depictions of Minors Engaged in Sexually Explicit Conduct under RCW 9.68A.070. He contends that the trial court erred in its denial of his ER 3.6 motion to suppress evidence obtained in a warrantless search of his residence by the officers investigating the case. He argued the Ferrier warnings were insufficient.

Washington State Patrol’s Missing and Exploited Children Task Force  received an anonymous “cybertip” from the National Center for Missing and Exploited Children. The anonymous source declared that Michael Allen Budd communicated with young girls on Yahoo! Messenger and Windows Live Messenger, both free online chat services. The anonymous source stated that he or she had seen child pornography on Budd’s computer.

On March 11,2009, Detective Kim Holmes travelled to Ephrata to Mr. Budd’s home. In law enforcement, a “knock and talk” is an investigative technique where one or more police officers approaches a private residence, knocks on the door, and requests consent from the owner to search the residence. Law enforcement performs the “knock and talk” when criminal activity is suspected, but officers lack probable cause to obtain a search warrant.

Detective Kim and other officers made contact with Holmes at his home. Although many of the facts are in dispute, it appeared that Detective Kim did not properly discuss Ferrier warnings with Mr. Holmes.

The court reasoned that Detective Holmes’ police report lacked any mention of Holmes’ informing Budd that he had a right to decline consent to enter the home, limit the scope of the search, and revoke consent at any time. Finally, the report implied that Holmes misrepresented that a court would authorize a search warrant. Based on this, the Court of Appeals ruled that the detective did not voice all Ferrier warnings before entering the home, and that law enforcement officers MUST deliver all cautions before entering the residence. Consequently, the Court reversed the conviction and dismissed the case.

My opinion? I agree with this excerpt from the Court of Appeals:

Viewing child pornography is a hideous crime that robs children of innocence and scars them for life. Those who watch child pornography obsessively gamer gratification through violent acts on defenseless children. Catching one at the crime takes diligence since the viewer indulges in the privacy of his home, often by elaborate security measures on his computer. Thus, we reluctantly reverse the trial court.

Nevertheless, as judges, we pledged to uphold the constitution and the endearing rights protected by the constitution. Those engaged in hideous conduct are entitled to the protections afforded under our state and federal constitution including the right to be free of unlawful searches and seizures.

Well said.

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

State v. Samalia: Search of Abandoned Cell Phone is Lawful

Bellingham Defense Attorney, Cell Phone, Constitutional Rights, Due Process, Evidence, felony, Forensics, law enforcement, police, Possession of Stolen Motor Vehicle, Pretrial Investigations, Privacy, Probable Cause, Search and Seizure, Search Warrant, Washington Court of Appeals, Whatcom County Criminal Defense,

Why this B.C. woman's 'cell phone in the car' ticket should never have been issued - Vancouver Is Awesome

In State v. Samalia, the WA Court of Appeals upheld the defendant’s conviction for Possession of a Stolen Motor Vehicle under RCW 9A.56.068 because the police used evidence from the defendant’s cell phone found in the abandoned stolen vehicle after he fled from the vehicle and evaded pursuit.

Yakima Police Officer Ryan Yates was on patrol when his vehicle license plate reader indicated he had passed a stolen vehicle. The officer followed the stolen vehicle. The driver got out of the vehicle and faced towards Officer Yates. The driver would not obey Officer Yates’ command to get back in the vehicle and fled. Officer Yates pursued the male driver but he got away.

Officer Yates searched the car and found a cell phone in the center console. Officer Yates conducted some investigations and discovered that the phone belonged to the defendant Mr. Samilia. Later, Officer Yates located Mr. Samalia’s picture in a police database. Officer Yates then identified Mr. Samalia from the database picture as the fleeing man who had been driving the stolen vehicle.

The State charged Mr. Samalia with possession of a stolen motor vehicle. He moved unsuccessfully to suppress the cell phone evidence under ER 3.6. From the above facts, the trial court concluded the cell phone was abandoned, therefore, Mr. Samalia no longer had an expectation of privacy in it. Following a bench trial, the court found Mr. Sam alia guilty as charged. He appealed.

The court reasoned that a warrantless search and/or seizure violates the WA Constitution unless it falls under one of ”’a few jealously guarded exceptions” to the warrant requirement. Searching voluntarily abandoned property is an exception to the warrant requirement. In other words, law enforcement may retrieve and search voluntarily abandoned property without a warrant or probable cause.

The court also considered the status of the area where the cell phone was located. Here, the search area was an unattended stolen vehicle that Mr. Samalia had been driving and had fled from when a police officer approached and directed him to return to the vehicle. Consequently, the court found that a suspect’s hasty flight under these circumstances is sufficient evidence of an intent to abandon the vehicle. In conclusion, because the cell phone was abandoned; used in pursuit of the fleeing suspect, and not directly used to identify Mr. Samalia, the court held that the trial court did not err in denying suppression of Mr. Samalia’s identification from a police database.

My opinion?

I disagree with the court’s decision. This decision is too great a leap in the wrong direction; and fails to follow Washington’s current jurisprudence. Despite the Court’s reasoning, there is NO reported Washington decision which has directly addressed whether a citizen relinquishes his reasonable expectation of privacy in the data on his cell phone by leaving the phone behind at the scene of a crime.

Our jurisprudence says police must generally secure a warrant before conducting a search of data on a cell phone – even one that has been left behind in a place where its owner has no privacy interest. Requiring a search warrant will assure that there is probable cause to believe that the defendant is involved in criminal activity and that evidence of the criminal activity can be found in the data on the cell phone.

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.