Category Archives: Search Warrant

State v. Harris: A Defendant May Argue Gant On Appeal Even Though It Was Not Argued At Trial.

Constitutional Rights, felony, Firearm, Jury Trial, law enforcement, marijuana, misdemeanor, police, Privacy, Search and Seizure, Search Warrant, Terry Stop, United States Supreme Court, Washington Court of Appeals, , ,

The Courts and the Constitution Arizona v Gant

In State v. Harris, the  WA Court of Appeals held that a defendant who did not bring a suppression motion prior to trial, may assert a claim under Arizona v. Gant  for the first time on appeal.

Defendant Stuart J. Harris, Jr. appealed his conviction for First Degree Unlawful Possession of a Firearm.  He argued  sufficiency of the evidence,  additional evidentiary error, and prosecutorial misconduct.   While this appeal was pending, the United States Supreme Court decided Arizona v. Gant, which deals with the scope of a car search pursuant to the arrest of its driver.  The Court of Appeals Division II allowed the parties to provide supplemental briefs on the Gant issue.

For those who don’t know, Gant rejected the reading of New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d (1981), that predominated in the lower courts, namely, that the Fourth Amendment allows a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search.

In departing from Belton, the Gant Court held instead that police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.  Gant, 129 S. Ct. at 1723.3

Here, the Court of Appeals reasoned the facts in Gant were similar to those here.  Harris was not within reaching distance of the passenger compartment of the car at the time of its search, and there was no reason to believe that the car contained evidence related to the offense for which he was arrested (driving with a suspended license). Therefore, absent other legal support for the search, the officer’s search of  the car was unlawful.

Furthermore, Gant applies retroactively because “A party should be allowed to take advantage of a decision rendered during the pendency of his case, even if he had not reserved the point decided, if the decision could not have reasonably been anticipated.”  State v. Harris at 6-7, quoting Judge Posner of the Seventh Circuit.

My opinion?  I’m a HUGE fan of the Arizona v. Gant opinion (please see my Dec. 24, 2009 blog), and by extension, I’m a HUGE fan of this opinion. Generally, United States Supreme Court decisions that announce new constitutional rules governing criminal prosecutions apply retroactively to all criminal cases not yet final on appeal.  I’m happy the Court of Appeals stuck to the law; and supported Gant, to boot.

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. Erickson: Probation Officers Have Too Much Power

Assault, Bench Warrant, Constitutional Rights, Drug Offenses, law enforcement, misdemeanor, police, Privacy, Probable Cause, Probation, Search and Seizure, Search Warrant, Washington Supreme Court, , ,

NY Probation Violation Hearing Lawyer - E. Stewart Jones Hacker Murhpy

In State v. Erickson, the WA Supreme Court decided a court may issue a bench warrant without a formal finding of probable cause on the underlying allegations after the defendant fails to appear at a probation violation hearing.

Anthony Erickson received probation after he was convicted of fourth degree assault.  His probation officer alleged Erickson violated the terms of his probation.  Erickson was issued a summons ordering him to appear at a probation violation hearing.  When Erickson failed to appear, the court issued a bench warrant for his arrest.  Erickson was subsequently arrested.  A strip search at the jail revealed he possessed cocaine.

The WA Supremes reasoned that because Erickson failed to notify the court of any change of address, the judge in the lower court had a “well-founded suspicion” that Erickson had violated that condition of his release.  Consequently, the judge had authority to issue the bench warrant based on that alone.

My opinion?  It’s unbelievable that the allegations – and that’s all they are, mere allegations – of a probation officer are upheld as stone-cold truth by judges if a defendant fails to show up for a hearing.  It’s unbelievable that judges can now issue bench warrants because a defendant failed to notify their probation officer of an address change.  It’s unbelievable that defendants can be taken into custody, strip searched, and arrested because they failed to notify their probation officer of an address change.

This case highlights how unfairly the gears of the criminal justice system grind away at individual rights.  Let’s hope this gets appealed to a higher court.

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. Buelna Valdez: Search Incident to Arrest is Invalid (Tip of the Hat To Arizona V. Gant)

Constitutional Rights, Drug Offenses, Due Process, felony, law enforcement, Methamphetamine, misdemeanor, police, Privacy, Probable Cause, Search and Seizure, Search Warrant, Terry Stop, Traffic Infractions, Washington State Patrol, Washington Supreme Court, , ,

The Fourth Amendment Reasonableness Requirement - FindLaw

In State v. Buelna Valdez, the WA Supreme Court held that a search incident to arrest was invalid under the 4th Amendment.

Here, a police officer pulled over a vehicle because it had only one working headlight.  The officer ran a records search on the driver, Mr. Buelna-Valdez, and discovered there was an outstanding warrant for his arrest.  The officer handcuffed and secured the defendant in his patrol car.  Officer searched the vehicle.  He noticed loose dashboard panels.  He calls a K-9 unit.  The K-9 uncovered methamphetamine located under a moldy cup holder.  The passenger was then also arrested. Both men were charged with drug offenses.

The WA  Supremes held that the automobile search incident to arrest was unlawful.  They reasoned that because the arrestee was handcuffed and secured in the backseat of a patrol car, he no longer had access to any portion of his vehicle.  The officer’s search of the vehicle was therefore unconstitutional under both the Fourth Amendment and the WA Constitution.  The Court also embraced the U.S. Supreme Court’s Arizona v. Gant in finding factual similarities between the cases:

“Under the Fourth Amendment, the arrestee was secured and not within reaching distance of the passenger compartment at the time of the search, so neither officer safety nor preservation of evidence of the crime of arrest warranted the search.  See Gant, 129 S. Ct. at 1719.  Furthermore, the arrestee was arrested based upon an outstanding warrant; the State has not shown that it was reasonable to believe that evidence relevant to the underlying crime might be found in the vehicle.  See Gant, citing Thornton, 541 U.S. at 632 (Scalia, J., concurring).”

The Court also reasoned the search was conducted without a warrant, even though the circumstances did not prevent officers from obtaining one prior to the search:  “There was no showing that a delay to obtain a warrant would have endangered officers or resulted in evidence related to the crime of arrest being concealed or destroyed.  As such . . . the evidence collected from that search should be suppressed, and the resulting convictions reversed.”

My opinion?  Obviously, I’m happy.  The case is great law for defense attorneys.  Indeed, it goes even further than Gant. Although good, Gant was slightly problematic because it allowed police to search for evidence of the crime of arrest.   In this decision, however, the WA Supremes only allow a search if there is evidence of destruction.  Therefore, in WA, if the defendant is in the squad car, the police cannot search the defendant’s vehicle.  Beautiful.

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. Winterstein: Parole Officers Cannot Search A Home If Facts Do Not Support the Officer’s Belief That Probationer Lives There.

Constitutional Rights, Due Process, felony, Knock & Talk, law enforcement, Methamphetamine, police, Privacy, Probable Cause, Search and Seizure, Search Warrant, Washington Supreme Court, , ,

Parole and probation have grown far beyond resources allocated to support them

In State v. Winterstein, the WA Supreme Court held that parole officers cannot search a home if the facts do not support the officer’s belief that that defendant on probation lives there.

Terry Lee Winterstein was convicted of Unlawful Manufacture of Methamphetamine after his probation officer conducted a warrantless search of his residence. After trial, Winterstein’s counsel discovered that Winterstein had reported a change of address with the Department of Corrections at least three weeks prior to the search.

Neverthless, the probation officer searched Winterstein’s prior residence. Winterstein argued that the evidence gathered as a result of the warrantless search should be suppressed because his probation officer did not have the authority of law to search a house that was not Winterstein’s documented residence.

The trial court denied the motion and the Court of Appeals affirmed. The Court of Appeals also held that regardless of the illegal search, the evidence could be admissible under the “inevitable discovery doctrine”—that is, evidence that police would have ultimately or inevitably discovered through other (lawful) means.

The case wound its way up to the WA Supreme Court.

First, the Court addressed whether the probation officer’s search of the Winterstein’s former residence was proper.  They reasoned that, generally speaking, individuals under Department of Corrections supervision have a lesser expectation of privacy, and can be searched on the basis of a reasonable suspicion of a probation violation.  However, the Court also said that probation officers must have probable cause—a higher standard—to believe that their probationers live at the residences they search:

“In this context, probable cause exists when an officer has information that would lead a person of reasonable caution to believe that the probationer lives at the place to be searched. The information known to the officer must be reasonably trustworthy. Only facts and knowledge available to the officer at the time of the search should be considered.”

Second, the Supremes addressed the Inevitable Discovery Doctrine.  They reasoned it is well-established that article I, section 7 of the Washington Constitution provides greater protection of privacy rights than the Fourth Amendment of the U.S. Constitution. Section 7 says: “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”

While federal cases have allowed for inevitable discovery, and the state Court of Appeals has applied the doctrine, the Supreme Court said the doctrine is “speculative and does not disregard illegally obtained evidence”—and is therefore incompatible with the state constitution’s expansive protection of privacy.

My opinion?  Extremely well-articulated and correct decision.  The WA Supremes’ handling/dispatching of the Inevitable Discovery Doctrine acknowledges the expanded freedoms under the WA Constitution in comparison to the U.S. Constitution.  Admitting evidence under the Inevitable Discovery Doctrine leaves no incentive for the State to comply with the constitution’s requirement that arrests precede searches.

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. Patton: WA Supreme Court Acknowledges Search and Seizure Protections Afforded by Arizona v. Gant.

Constitutional Rights, Drug Offenses, Due Process, felony, Jury Trial, law enforcement, marijuana, misdemeanor, police, Police Misconduct, Privacy, Probable Cause, Search and Seizure, Search Warrant, Terry Stop, Traffic Infractions, United States Supreme Court, Washington State Patrol, Washington Supreme Court, , ,

Can Police Search Your Car Without a Warrant?

In State v. Patton, the WA Supreme Court held that an automobile search which happens after arrest is not justified unless the defendant is within reaching distance of the passenger compartment at the time of search and the search is necessary for officer safety or to secure evidence of the crime of arrest.

Randall Patton was wanted on a felony warrant.  A Skamania County Sheriff Deputy spotted him. Patton was on his property and leaning into his own car through the window, rummaging with something on the seat.  The Deputy told Patton he was under arrest.  Patton fled, but was soon apprehended inside a trailer.

Deputies searched the car and found methamphetamine. Patton challenged that the search violated his state and federal constitutional rights because it was not a valid search incident to arrest. The trial court suppressed the evidence but was reversed by the Court of Appeals.

The Court found that Patton was arrested when the officer “manifest[ed] an intent to take [him] into custody” while Patton was standing by his car. Nevertheless, “the search incident to arrest exception is narrow and should be applied only in circumstances anchored to the justifications for its existence.”  The court elaborated their reasoning with the following:

The question before us, then, is whether it would stretch the search incident to arrest exception beyond its justifications to apply it where the arrestee is not a driver or recent occupant of the vehicle, the basis for arrest is not related to the use of the vehicle, and the arrestee is physically detained and secured away from the vehicle before the search. We believe it would.

Congratulations to Justice Jim Johnson, who found the case identical to Arizona v. Gant, decided earlier this year by the United States Supreme Court.   In Gant, the U.S. Supremes held that a search conducted by police officers after handcuffing the defendant and securing the scene violates the Fourth Amendment’s protection against unreasonable searches and seizures.

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

9th Circuit’s Search & Seizure Outline

Bellingham Defense Attorney, Search and Seizure, Search Warrant, Terry Stop, Whatcom County Criminal Defense, , ,

Search and Seizure Law: Have You Been “Seized” by A Police Officer? — Colorado Criminal Lawyer Blog — April 3, 2021

Interesting. The 9th Circuit Court of Appeals just released a Search and Seizure outline.

This outline is AMMUNITION for pretrial motion practice.  If you, a potential defendant, were held in custody by police, arrested, questioned, and/or your property (house & car) were searched; then your attorney should argue pretrial motions to suppress.  Pretrial motion practice protects your individual rights while providing the primary defense for your case.  Any attorney worth their salt should argue pretrial motions on your behalf.

The federal public defenders in Oregon drafted the outline.  They appear before the U.S Court of Appeals for the 9th Circuit.  This court carries appellate over many federal district courts along the west coast; Washington included.

The outline was updated from two years ago.  Among the many new cases, the big news from the Supreme Court is the decision in Arizona v. Gant overruling prior decisions that had divorced the scope of vehicle searches incident to arrest from the rationale of officer safety. The Ninth Circuit provided important guidance on computer searches in the en banc decision in Comprehensive Drug Testing.

Two district court cases from last summer provide a reminder of the practical importance of motion practice for our clients: Judge Jones and Judge Haggerty granted motions to suppress in Freeman and Izguerra-Robles, litigated by AFPDs Ellen Pitcher and Nancy Bergeson, respectively.

Again, great bedtime reading.  A “must have” for attorneys arguing pretrial motions.

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

Seattle v. St. John: Police May Obtain a Search Warrant For a Blood Sample When Motorists Refuse to Give Breath Test.

Blood Test, Constitutional Rights, Drug Offenses, Due Process, DUI, law enforcement, marijuana, misdemeanor, police, Privacy, Probable Cause, Search and Seizure, Search Warrant, Terry Stop, Traffic Infractions, Washington Court of Appeals, Washington State Patrol, Washington Supreme Court, , ,

Can I Refuse A Blood Test? - Welch and Avery

In Seattle v. St. John, the WA Supreme Court held that police may obtain a search warrant for a blood sample when motorists refuse to give a breath test.

After crashing his motorcycle in Seattle, Robert St. John was investigated for DUI. A police officer asked St. John to consent to a blood alcohol test.  St. John refused.   The officer obtained a warrant for the test.  The results were suppressed in municipal court based on a broad interpretation of a provision of the Implied Consent Law that prohibits performing the test once consent has been refused. The superior court reversed and the Court of Appeals certified three questions to the Supreme Court:

1. Does the implied consent statute allow the State to administer a blood alcohol test pursuant to a warrant after a driver has declined a voluntary blood alcohol test?

2. Does an implied consent warning violate due process if it does not inform drivers that an officer may seek a warrant for a blood alcohol test even if the driver declines the voluntary blood alcohol test?

3. Does the doctrine of equitable estoppel bar the State from seeking a warrant for a blood alcohol test after informing drivers that they may refuse the voluntary blood alcohol test?

The WA Supreme Court upheld the superior court and allowed the blood test evidence.  They reasoned that the Implied Consent law restricts performing a blood test pursuant to that law, but does not prohibit performing a blood test pursuant to a lawfully issued warrant (RCW 46.20.308). Similarly, the officer’s statements about the Implied Consent law did not foreclose his obtaining the warrant.

I echo the dissenting opinion of Justice Charles Sanders.  Simply put, an officer cannot force a driver to submit to a blood test if the driver refuses consent.  However, under the majority opinion’s reasoning, a driver’s refusal to consent to a Breath test is essentially meaningless.

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. Eriksen: Tribal Officers Can Pursue Suspects Off the Reservation

Constitutional Rights, Due Process, DUI, law enforcement, misdemeanor, police, Privacy, Probable Cause, Reckless Driving, Search and Seizure, Search Warrant, Terry Stop, Traffic Infractions, Washington State Patrol, Washington Supreme Court, , ,

Anatomy of a DUI investigation - Sanford Horowitz Criminal Defense, PC.

In State v. Eriksen, the WA Supreme Court decided that tribal police officers can pursue motorists beyond the limits of tribal lands after having observed them commit a traffic infraction on the reservation.

A Lummi Nation Police Department officer witnessed a motorist on the reservation driving at night with high beams and drifting across the center divider.  He began following the vehicle and activated his emergency lights.  After traveling a quarter mile the car pulled into a gas station located off the reservation.  The police officer witnessed the driver, Loretta Eriksen, hop over the car’s center console and into the passenger’s seat.  The officer detained Eriksen until a Whatcom County police deputy arrived, who arrested her for DUI.

Ms. Eriksen was convicted for DUI.  The trial court said Lummi Nation’s inherent sovereign power authorizes tribal police to continue in “fresh pursuit” of offenders who drive off the reservation.

The Supreme Court agreed.  It reasoned  that the Lummi Nation is a sovereign nation with inherent authority to enforce its laws and detain Indians or non-Indians who violate those laws.  Courts have long recognized the right of law enforcement officers to cross jurisdictional lines when in hot pursuit of a violator.

The court said this doctrine should apply to sovereign tribal nations as well.  “The Lummi Nation Police Department has authority under the Lummi Nation’s sovereign authority and under the Washington Mutual Aid Peace Officers Powers Act of 1985, chapter 10.93 RCW, to enforce its laws by continuing the ‘fresh pursuit’ of suspects off the reservation and then detaining these suspects until authorities with jurisdiction arrive.”

My opinion?  I’m not surprised.  Recently, the WA Supremes have deciding other “hot pursuit” cases in similar fashion.  Indeed, in State v. Rivera-Santos, a recent case which my blog covered earlier this month, the WA Supremes decided that a defendant, who drove under the influence of alcohol in both Washington and Oregon, could be convicted of a DUI in both states without violating his constitutional rights IF law enforcement was engaged in hot pursuit across state lines.

Additionally, I’ve found the criminal justice system is extra tough on defendants who “elude” law enforcement with high-speed chases.  Eluding is a fairly serious felony, especially if the defendant already has felony convictions on their criminal record.

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. Rivera-Santos: Why Crossing State Lines – Intoxicated – Is Double Trouble

Constitutional Rights, Department of Licensing, Due Process, DUI, law enforcement, misdemeanor, police, Probable Cause, Reckless Driving, Search and Seizure, Search Warrant, Terry Stop, Traffic Infractions, Washington State Patrol, Washington Supreme Court, , ,

Two DUI arrests made in southern Arizona following Labor Day weekend

In State v. Rivera-Santos, the WA Supreme Court determined that the defendant, who drove under the influence of alcohol in both Washington and Oregon, could be convicted of a DUI in both states without violating his constitutional rights.

Rivera-Santos led police on a chase that started on the Washington side of I-5 and ended on the Oregon side. He was found to have a blood-alcohol content level of .17 percent (more than twice the legal limit), and convicted by an Oregon court of driving under the influence. He was also charged with a DUI in Clark County District Court, but Rivera-Santos argued that it should be dismissed under the constitutional protections against double-jeopardy (i.e. being punished twice for the same crime).

Justice Fairhurst wrote that convicting Rivera-Santos in Washington would not be double-jeopardy, as it was a separate crime.  He drove while drunk in Oregon, and was punished for that by an Oregon court. He also drove while drunk in Washington, and a Washington court could punish him for that separate crime.

My opinion?  If it looks like a duck, smells like a duck, then it must be a duck.  Said differently, this legal decision looks like double jeopardy, smells like double jeopardy, therefore it must be double jeopardy.

For those who don’t know, “Double Jeopardy” happens when defendants are prosecuted twice for the same offense.  It’s unconstitutional.  The Double Jeopardy Clause protects against three distinct abuses: [1] a second prosecution for the same offense after acquittal; [2] a second prosecution for the same offense after conviction; and [3] multiple punishments for the same offense.’ U.S. v. Halper, 490 U.S. 435, 440 (1989).

Here, the WA Supremes stated that Mr. Rivera-Santos committed two different crimes in two different states.  Fine, I can agree with that.  HOWEVER, I disagree with their decision that charging these crimes is not double jeopardy.  Why do I disagree?  Because these “two crimes” arose from the same facts and circumstances.

Mr. Rivera-Santos did not steal candy from a 7-11 in Oregon, cross State lines, and then steal candy from a 7-11 in Washington.  The crime of DUI is, essentially, driving while intoxicated.   Although Mr. Rivera-Santos drove across State lines while intoxicated, he was DUI only one time during that crossing.  Therefore, he should only be punished once.   Anything more is double jeopardy.

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. Redding: U.S. Supreme Court Declares Strip Search of 13-Year-Old Student Unconstitutional

ACLU, Constitutional Rights, Drug Offenses, Due Process, Search and Seizure, Search Warrant, United States Supreme Court, , ,

Should schools be strip-searching students? | Illinois Attorney Referrals and Legal Guidance

In State v. Redding, the U.S. Supreme Court ruled that school officials violated the constitutional rights of Savana Redding, a 13-year-old Arizona girl who was strip searched based on a classmate’s uncorroborated accusation that she previously possessed ibuprofen, a banned medication. This is the biggest victory for students’ rights in the last 20 years.

My opinion?  I’ll let Savannah speak for herself.  Below is a post she wrote for the ACLU’s blog:

“People of all ages expect to have the right to privacy in their homes, belongings, and most importantly, their persons. But for far too long, students have been losing these rights the moment they step foot onto public school property — a lesson I learned firsthand when I was strip-searched by school officials just because another student who was in trouble pointed the finger at me. I do not believe that school officials should be allowed to strip-search kids in school, ever. And though the U.S. Supreme Court did not go quite so far, it did rule that my constitutional rights were violated when I was strip-searched based on nothing more than a classmate’s uncorroborated accusation that I had given her ibuprofen. I’m happy for the decision and hope it helps make sure that no other kids will have to experience what I went through.

Strip searches are a traumatic intrusion of privacy. Forcing children to remove their clothes for bodily inspection is not a tool that school officials should have at their disposal. Yet, until today, the law was apparently unclear, potentially allowing for the most invasive of searches based on the least of suspicions. Every day, parents caution their children about the importance of not talking to strangers, looking both ways before crossing the street, and following directions at school.

But I imagine they never think to warn them that a school official, acting on a hunch, may force them to take their clothes off in the name of safety. And now, thankfully, they won’t have to. Our fundamental rights are only as strong as the next generation believes them to be, and I am humbled to have had a part in preserving and promoting the Fourth Amendment to the Bill of Rights.”

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.