Category Archives: Sex Crimes

WA Court Dismisses Criminal Conviction Due To Overbroad Search Warrant

Bellingham Defense Attorney, Constitutional Rights, Mount Vernon Criminal Defense Attorney, Search and Seizure, Search Warrant, Sex Crimes, Skagit County Criminal Defense, Technology, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

EFF Tells the Second Circuit a Second Time That Electronic Device Searches at the Border Require a Warrant | Electronic Frontier Foundation

In State v. Hampton, the WA Court of Appeals held a Search Warrant was overbroad because it allows the seizure of evidence related to crimes for which there was no probable cause; in this case, sex crimes.

FACTUAL BACKGROUND

Law enforcement investigated Mr. Hampton for trafficking in stolen property and controlled substances. During the investigation, officers seized Hampton’s brown briefcase, which contained electronic storage devices. Thereafter, a search warrant authorized law enforcement to search the electronic storage devices and all contents that showed possession of trafficking in stolen property or drugs.

The search requested search and seizure for the following:

“Any data that may be kept on any of the seized digital devices in any format to include but not limited to intact files, deleted files, deleted file fragments or remnants related to the purchase, possession, receipt and distribution of controlled substances and or stolen property.”

When reviewing files from the storage device, law enforcement viewed ten-year-old videos of Hampton engaging in sexual intercourse with his girlfriend, while she was incapacitated. The superior court refused to suppress the videos. A jury convicted Hampton of numerous Sex Offenses. On appeal, Mr. Hampton argued the search warrant was invalid because of its overbreadth.

COURT’S ANALYSIS & CONCLUSIONS

In short, the Court of Appeals (COA) agreed with Mr. Hampton that the trial court should have granted his motion to suppress. First, the warrant authorized an overbroad and unfettered search of electronic storage devices found in the briefcase. Second, law enforcement exceeded the scope of the authorized search when viewing movie files stored on computer drives without regard to their date or connection to the crimes being investigated.

The COA emphasized that the Fourth Amendment demands in part that no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Furthermore, the latter part of this clause requires specificity in a search warrant.  Also, Article I, section 7 of the Washington State Constitution states, “No person shall be disturbed in their private affairs or have their home invaded without authority of law.”

The COA also analyzed that the particularity requirement of search warrants provides important protection against governmental invasion of privacy. This is because the demand renders general searches impossible and prevents the seizure of one thing under a warrant describing another. The particularity requirement also ensures judicial oversight of the scope of a law enforcement search such that the executing officer lacks unlimited discretion when executing the warrant. The warrant must be based on probable cause of criminal activity and must limit the scope of the search to the probable cause determination.

“Specificity consists of two components: particularity and breadth,” said the COA. “Particularity demands that the warrant clearly state what is sought. Breadth requires the scope of the warrant be limited by the probable cause on which the warrant is based.”

The COA reasoned that the search of Mr. Hampton’s electronic storage devices conducted by Detective Travis Frizzell verifies the impermissible breadth of the search warrant. The police’s search warrant affidavit established probable cause to believe Timothy Hampton and Robert Rogers engaged in a criminal conspiracy to purchase and sell narcotics in 2020, not almost a decade earlier.

“By viewing videos from 2013, Detective Frizzell stepped inside a time machine and outside the confines of probable cause. The State’s argument that the warrant sanctioned Frizzell’s view of the 2013 files defeats its defense of the constitutionality of the warrant. If we ruled that the search warrant limited the search to evidence of possessing stolen property or controlled substances and thereby upheld the validity of the warrant, we would need to rule that Detective Frizzell’s search exceeded the scope of the warrant.” ~WA Court of Appeals

The COA concluded that a court must suppress evidence seized due to an overly broad search warrant. It remanded Mr. Hampton’s case to the superior court for vacation of his convictions and for dismissal of the charges.

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

Testifying Non-Citizen Witnesses Can Be Cross-Examined On Their U-Visa Status

Bellingham Defense Attorney, Immigration, Mount Vernon Criminal Defense Attorney, Sex Crimes, Skagit County Criminal Defense, U-Visa, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

In State v. Bravo, No. 85030-0-I (February 18, 2025), the  WA Court of Appeals held that prohibiting cross-examination into a victims’ pending U-Visa application may violate the defendant’s right to confront witnesses. Bravo is an important legal decision regarding whether a victim/witness seeking U.S. citizenship can be impeached at trial for assisting the prosecution in furtherance of gaining citizenship.

FACTUAL BACKGROUND

A jury convicted Mr. Bravo of a Sex Offense. At trial, Bravo sought to cross-examine the victim, M.H., about her and her family’s pending U-visa application. A U-visa grants temporary legal residence to a person who is the victim of a qualifying crime and who helps law enforcement investigate or prosecute that crime.  Qualifying crimes include, among other things, Homicide, Kidnapping, Domestic Violence, and Drug Offenses.

The trial court limited Bravo’s cross-examination of M.H. to her knowledge at the time of her initial report to investigators—six years before her trial testimony. The court also prohibited cross-examination of M.H.’s sister, L.H., as to their immigration status. On appeal, he argues that exclusion of the U-visa evidence violated his state and federal constitutional rights to confront witnesses.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals (COA) began its analysis by saying both the United States and Washington State Constitutions guarantee a defendant’s right to present a defense and to confront the witnesses against them.

“The primary and most important component of the confrontation right is the right to conduct a meaningful cross-examination of adverse witnesses,” rerasoned the COA. “Cross-examination is designed to expose a witness’s bias has long been recognized as particularly important because it reveals a witness’s motivation in testifying.”

However, the COA emphasized that the right of confrontation does not give the defendant an absolute right of cross-examination. Judges have wide latitude to impose limits on cross-examination. These limits are based on concerns including harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.

“Inquiry into the U-visa may not have necessarily revealed that M.H. outright invented the allegations. Rather, the structure of the U-visa program can encourage some victims to be as helpful as possible to the prosecution in order to obtain citizenship. This could have motivated either M.H. or L.H. to embellish their stories and allegations. The evidence was relevant.” ~WA Court of Appeals

Consequently, the COA held that the trial court erred in prohibiting the cross-examination of M.H. and L.H. about their U-visa status.

Next, the COA addressed whether the trial court’s error to prohibit cross-examination of the witnesses’ U-visa status was harmful:

“The State’s closing argument emphasized that M.H. and L.H. demonstrated no bias and had no motive to fabricate. But Bravo was not able to cross-examine and expose any motive for bias or motive to fabricate, so the jury was unaware of their motives. Because of the State’s closing argument, lack of corroborating evidence, and inconsistencies in testimony, assuming the damaging potential of cross-examination were fully realized, we cannot nonetheless say that the error was harmless beyond a reasonable doubt.” ~WA Court of Appeals

With that, the COA reversed Bravo’s conviction and remanded for a new trial.

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.

Federal Judge Upholds Washington’s Ban on Selling and Distributing At-Home Sexual Assault Kits

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Concerns over "Me Too" kits

In a press release, the WA Attorney General Office (AGO) reported a federal judge upheld Washington’s ban on selling and distributing at-home sexual assault kits under House Bill 1564. The federal court’s ruling dismisses a lawsuit brought by Leda Health, a Pennsylvania company that sells the self-administered kits for profit.

Washington State’s Law Banning “At-Home” Sexual Assault Kits.

House Bill 1564 went into effect in July 2023, after garnering overwhelming, bipartisan support from the state Legislature. The law prohibits the sale and distribution of sexual assault kits that are marketed or presented to collect “evidence” at-home or over-the-counter by anyone other than law enforcement or a health care provider.

Self-administered kits have multiple important differences from an exam conducted by a Sexual Assault Nurse Examiner. These professionals receive specialized training including:

  • Providing comprehensive care to sexual assault survivors, including prevention treatment for STIs and follow-up care,
  • Collecting evidence in a way that avoids cross-contamination,
  • Storing evidence to avoid contamination or spoliation, and
  • Maintaining a chain of custody for the evidence.

Leda Health’s “MeToo Kits.”

Formerly known as MeToo Kits, Leda Health says the company’s kits offer survivors an alternative if they feel unsafe or uncomfortable going to the police or a hospital. In its lawsuit, Leda argued that the state’s 2023 ban targets sexual assault survivors and violates First Amendment rights related to free speech and advertising.

However, U.S. District Court Chief Judge David G. Estudillo disagreed, ruling that the statute is “an economic regulation of the sale of a particular product,” not a regulation of speech.

“This is a legal victory for sexual assault survivors . . . By an overwhelming bipartisan vote, the Legislature adopted this state law that prevents companies from exploiting sexual assault survivors. Survivors should know that they are not alone — critical services to help them seek justice are available from trained medical professionals, at no cost.” ~WA Attorney General Bob Ferguson

Washington also sent a cease-and-desist order to Leda Health in 2022 that said the company’s advertising included “patently false” claims, including marketing that may lead survivors to believe the company’s kits are comparable to free state kits. Leda Health ended sales in Washington in response and hasn’t sold in the state since.

Why Are At-Home Sexual Assault Kits Are Inadmissible in Court?

Self-administered kits face numerous barriers to admission as evidence. These barriers include  concerns about cross-contamination, spoliation, validity, and chain of custody.

Importantly, self-administered kits are not eligible for submission to the Crime Lab. Therefore, any DNA collected would not be entered into CODIS, a national DNA profile database that national, state and local law enforcement use to identify repeat offenders, build leads, and track evidence.

In its press release, the AGO’s office said survivors have the right to have an advocate or personal representative with them during an exam. Survivors do not have to make a decision about talking to law enforcement or reporting a crime in order to obtain a SANE exam. State law requires unreported sexual assault kits be transported to local law enforcement and stored for 20 years from the date of collection.

“Timely forensic examinations by a trained provider represent the best chance to preserve evidence if a survivor chooses to move forward with reporting the assault and criminal investigation.” ~Press Release, AGO’s Office.

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.

When Victims Are Charged As Accomplices To Crimes

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Photo courtesy of study.com

What happens when crime victims are prosecuted as accomplices to their abuser’s criminal conduct? A recent Marshall Project investigation found survivors of domestic violence and sexual offenses are particularly vulnerable to prosecution because of the control their abusers hold over them.

THE PROBLEM

Even if a person does not directly commit a crime, they can still be punished for it. That’s because every state in the U.S. – including WA State – has a version of “accomplice liability.” These are laws that allow someone to be punished for assisting or supporting another person who commits a crime. In some cases, accomplice liability is prosecuted on victims even if their participation is under the threat of violence.

In some states, it does not legally matter if a person helped with a crime because they were threatened with death or feared physical violence. As a result, evidence of domestic abuse may not be considered relevant. In other cases, a survivor’s history of abuse may be used to justify their punishment.

THE NUMBERS

A study of 72 women serving life in Michigan prisons found 60% were there for a murder they didn’t commit. Most of those crimes were connected to a man they had a relationship with. In a different survey of people serving time for murder or manslaughter in women’s prisons, 13% of the respondents said they had been convicted for a crime committed with their abuser.

Reviewing court documents, the Marshall Project found nearly 100 cases where prosecutors charged a person (almost always a woman) for supporting, taking part in or failing to stop a crime by their alleged abuser. The cases include a woman who is in prison because her boyfriend severely beat her child, even though she wasn’t home at the time. In another instance, a woman helped her abuser sell stolen goods after a murder because, she said, she was afraid he would kill her.

POSSIBLE SOLUTIONS

Lawmakers and advocates for survivors say there are two ways to tackle the problem. The first would be to limit accomplice liability so fewer people can be charged using those laws. Another approach some states have taken is to rethink how domestic violence victims are sentenced. New York’s Domestic Violence Survivors Justice Act, passed in 2019, allows judges to depart from mandatory minimums when sentencing (or resentencing) survivors. According to the Survivors Justice Project, which works to free victims of domestic violence from prison, 64 people have been resentenced in New York after filing applications.

DEFENSES AT TRIAL

In WA State, Duress is a substantive defense to criminal charges, including accomplice liability. The Duress defense exists if (1) The defendant participated in the crime under compulsion by another who by threat or use of force created an apprehension in the mind of the defendant that in case of refusal the defendant or another person would be liable to immediate death or immediate grievous bodily injury; (2) such apprehension was reasonable upon the part of the defendant; and (3) the defendant would not have participated in the crime except for the duress involved.

Please contact my office if you, a friend or family member are charged as an accomplice to a crime. Duress might be an available defense. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. Ortega: Court Upholds Forensic Search of Defendant’s Cell Phone Using “Cellebrite Touch” Software

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Supreme Court cell phone ruling doesn't affect local law enforcement

In State v. Ortega, the WA Court of Appeals held that police officers executing a search warrant for an electronic device are not exceeding the scope of the warrant by manually searching through all the images on a device to find and seize images depicting specific content.

FACTUAL BACKGROUND

Mr. Ortega was investigated for sex offenses against his girlfriend’s children. Police believed Mr. Ortega’s cell phone probably contained evidence of the crimes with which he was charged. They obtained possession of the cell phone from a family member, who voluntarily turned it over to police. The court granted the police’s request for a search warrant. Pursuant to the warrant, police searched the phone and seized 35 images, many of which were incriminating.

Mr. Ortega moved to suppress the fruits of the cell phone search. He argued that the warrant was insufficiently particular, in violation of the state and federal constitutions. At his suppression hearing, officers testified they began the search by connecting Mr. Ortega’s phone to an extraction device known as the “Cellebrite Touch.”  They ran an extraction that allowed the files on Mr. Ortega’s phone to be organized into categories (for example, messages, images, etc.). Once extracted, data is not visible unless someone opens the individual category folders through Cellebrite’s physical analyzer program.

After the data extraction, police produced a thumb drive containing more than 5,000 extracted images. One officer testified it was similar to being given a physical photo album and having to flip through the pages to find what you are looking for.

The trial court denied Mr. Ortega’s motion to suppress the images seized from his cell phone. Mr. Ortega subsequently waived his right to a jury trial and his case was tried to the bench. The court found Mr. Ortega guilty as charged. Mr. Ortega timely appealed on arguments that the State’s case was tainted by evidence seized during an unconstitutional cell phone search.

COURT’S ANALYSIS & CONCLUSIONS

1. The Search Warrant Passed the “Particularity Requirement.”

The Court of Appeals (COA) began by explaining that both the Fourth Amendment and the Washington Constitution require that a search warrant describe with particularity the place to be searched and the persons or things to be seized. The particularity requirement, which aims to prevent generalized rummaging through a suspect’s private affairs, is of heightened importance in the cell phone context. This is because of the vast amount of sensitive data contained on the average user’s smartphone device. The purposes of the particularity requirement are to prevent a general search, limit the discretion of executing officers, and ensure that items to be searched or seized are supported by probable cause, said the COA.

Consequently, the COA reasoned the warrant satisfied the particularity requirement. It directed officers to search the phone and seize images and/or videos depicting Mr. Ortega engaged in sexual contact with minors.

“This did not permit a general rummaging; it was akin to a warrant allowing a search of a residence for controlled substances and indicia of ownership.” ~WA Court of Appeals

2. Officers Did Not Exceed the Scope of the Warrant.

The COA discussed the scope of a search can be limited by identifying targeted content. When a warrant authorizes a search for a particular item, the scope of the search “generally extends to the entire area in which the object of the search may be found.

The COA reasoned that police properly limited the scope of their search to the terms of the warrant. The incriminating images could have been located almost anywhere on Mr. Ortega’s cell phone—not only in a photos application, but also in e-mails and text messages.

Furthermore, had the detectives chosen to search Mr. Ortega’s phone manually, they likely would have needed to sort through data other than images in order to find the targets of their search. And they would have risked jeopardizing the evidentiary integrity of the phone. By instead using forensic software, the detectives were able to organize the data from Mr. Ortega’s phone without first viewing the phone’s contents. This enabled them to limit their search to data labeled as photos and videos, thus restricting the scope of the search to areas where the target of the search could be found.

“By using forensic software to extract and organize data from Mr. Ortega’s phone, the detectives were able to minimize their review of the phone contents and tailor their search to the evidence authorized by the warrant. This did not violate Mr. Ortega’s constitutional rights.” ~WA Court of Appeals

With that, the COA denied Mr. Ortega’s appeal and upheld his convictions.

Please review my Search & Seizure Legal Guide and 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.

WA Court of Appeals Upholds “Net Nanny” Sting Operation

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Sex Crimes, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Net Nanny' sting nets 21 child predator arrests in Pierce County – KIRO 7 News Seattle

Photo courtesy of Kiro News 7.

In State v. Stott, the WA Court of Appeals held that a “Net Nanny” police sting operation was not outrageous government conduct, even though the police used deception, because the defendant clearly pursued the “victim.”

For those who don’t know, “Net Nanny” sting operations infiltrate online communities where child exploitation activities often take place. Undercover officers pose as minors and engage with individuals involved in soliciting children for sexual purposes. Through careful investigation and monitoring, law enforcement agencies are able to gather evidence and identify perpetrators.

BACKGROUND FACTS

Mr. Stott allegedly communicated with an undercover Washington State Patrol (WSP) officer who was posing as a fictional 13-year-old girl (“Kaci”). Mr. Stott was now targetted in an online sting operation aimed to find and arrest adults seeking sex with children. Stott was apprehended by police upon leaving his home to meet up with “Kaci.” He was charged with numerous sex offenses.

Stott moved to dismiss the charges against him. He claimed he was denied due process as a result of outrageous government conduct stemming from the sting operation. The trial court, after applying the five-factor test outlined in State v. Lively, denied the motion. Stott was convicted following a jury trial. He appealed his conviction on grounds that the trial court improperly denied his motion to dismiss.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals (COA) began by saying outrageous government conduct happens when the actions of law enforcement officers are so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction. For the police conduct to violate due process, the conduct must shock the universal sense of fairness.

Next, the COA re-analyzed the the five-factor test outlined in State v. Lively. The test addresses whether government conduct constitutes a due process violation under the “totality of the circumstances.” Our supreme court in Lively outlined five factors for courts to consider in determining whether outrageous government conduct occurred: The five factors are (1) whether the police conduct instigated a crime or merely infiltrated ongoing criminal activity; (2) whether the defendant’s reluctance to commit a crime was overcome by pleas of sympathy, promises of excessive profits, or persistent solicitation; (3) whether the government controls the criminal activity or simply allows for the criminal activity to occur; (4) whether the police motive was to prevent crime or protect the public; and (5) whether the government conduct itself amounted to criminal activity or conduct ‘repugnant to a sense of justice.’

1. Whether the Police Instigated the Crime

The COA reasoned the State did not instigate the crime, but merely infiltrated potential criminal activity. Here, the initial advertisement did not specifically target Stott. He initiated the exchange by responding to the ad. Stott continued to text “Kaci” after he learned that she was underage. He did not at any time seek to withdraw from the exchange, even when he expressed some concern that he was possibly being set up. Finally, it was Stott who introduced sexually explicit language to the conversation.

2. Overcoming Reluctance by Persistent Solicitation

The COA held the trial court did not abuse its discretion in weighing this Lively factor against Stott. The COA reasoned that other than brief mentions of his fear of being “catfished,” Stott willingly and repeatedly engaged “Kaci” and made no attempts to discontinue the interaction. Stott did not reject “Kaci” after being told that he was interacting with a minor. Moreover, Stott did not make affirmative attempts to end the conversation. Furthermore, Stott took affirmative steps to meet “Kaci” in person. He drove down to Puyallup to meet her and offered to pay for an Uber to bring her to Seattle on multiple occasions.

3. Control of Criminal Activity

This Lively factor asks “whether the government controls the criminal activity or
simply allows for the criminal activity to occur.” Here, the COA held the trial court rightfully concluded that Stott “was in the driver’s seat.” It reasoned Stott told “Kaci” what acts he wanted her to perform and negotiated how much he was willing to pay. Furthermore, Stott brought up the topics of contraceptives, payment, Ubers, and a meeting location.

4. The Government’s Motive 

This Lively factor asks whether the police motive was to prevent crime or protect the
public. Here, the COA reasoned the trial court rightfully found that the “Net Nanny” operation is designed to catch would-be sexual abusers before they have a chance to sexually assault an actual child. Furthermore, Stott’s suggestion that he was not otherwise inclined to engage in sex with a child and only acquired that inclination in response to “Kaci’s” enticements is wholly belied by the evidence that was presented to the trial court.

5. Repugnant to Sense of Justice

The final Lively factor is “whether the government conduct itself amounted to criminal activity or conduct “repugnant to a sense of justice.” On this issue, Stott argued that the government’s conduct was repugnant because “Kaci” used lewd and vulgar language during her communications. In response, however, the COA determined that Stott was just as lewd and vulgar in his language as “Kaci,” and the evidence presented to the court for its consideration on the motion supports that determination.

With that, the COA  concluded that the trial court did not abuse its discretion in denying Stott’s motion to dismiss for outrageous government conduct. Accordingly, the COA affirmed Stott’s conviction.

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

WA Privacy Act Does Not Suppress or Protect Audio Recordings of Sexual Assault

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Rape, Sex Crimes, Skagit County Criminal Defense, Washington Court of Appeals, Washington Privacy Act, Whatcom County Criminal Defense, , , , ,

Recorded conversations: A warning and call for change - Tampa Bay Business & Wealth

In State v. Kamara, the WA Court of Appeals held that the recorded sounds of a sexual assault are not a “private conversation” as defined by the Privacy Act.  Therefore, a recording of such sounds, made without the consent of the defendant, is admissible at trial.

BACKGROUND FACTS

Under Washington’s Privacy Act, it is generally unlawful to record a private conversation without first obtaining consent of all persons engaged in the conversation. And evidence obtained in violation of the privacy act is typically inadmissible at trial.

Mr. Kamara and B.T. met at a mutual friend’s birthday party in July 2019. B.T. had seen Kamara before at various events with members of the Liberian community. B.T. knew Kamara as JR. After the party, Kamara sent B.T. a friend request on Facebook. They began messaging each other on Facebook. Kamara asked B.T. out but she declined because she was in a relationship. Kamara was persistent and asked several more times.

Because Kamara kept pushing, on August 30, 2019, B.T. agreed to meet with him. Once at Kamara’s apartment, Kamara offered B.T. a drink. B.T. declined, but Kamara poured her some wine. They watched a program on TV. After some time, Kamara sat next to B.T. on the couch and then he began putting his hands on her, stroking down her arm, and leaning against her.

B.T. got up to use his bathroom and give herself some time to think. While in the bathroom, B.T. activated a recording app on her phone. At first, she just played with it, recording sounds and then listening. The next time she activated it, she got a notification and switched to a different app on her phone without stopping the recording.

When she returned to the living room, B.T. sat farther away from Kamara on the couch and continued scrolling through her social media to distract herself. Kamara moved closer and began making sexual remarks and advances toward B.T. B.T. told him she had to go, since she had work the next morning, but Kamara insisted she stay until 2:00 a.m. B.T. told Kamara “no” multiple times and told Kamara not to touch her.

B.T. told Kamara she would just nap on the couch until he took her home at 2:00 a.m., but he wanted her to go to his room. Kamara forced B.T. into his bedroom by pulling her off the couch and pushing her back until she was pushed onto his bed. He pinned her arms to the bed and then used his full body weight on her so she couldn’t move. He pulled her pants down and raped her while she cried and repeatedly told him “no, don’t, and I don’t want to do this.” B.T. tried to fight him off, but did not succeed.

Sounds of the ordeal were audio-recorded on B.T.’s phone.

After B.T. continued to cry and beg Kamara to stop, he finally got off of her and walked out of the room. B.T. testified that she felt defeated. When Kamara returned and started touching her again, B.T. didn’t fight, she “just let him do what he had to do.” Kamara then offered to take her home. Once home, B.T. texted her best friend about what had happened.

The next day, B.T.’s friend took her to Auburn Regional Medical Center where B.T. underwent a sexual assault examination. Afterward, she discovered the audio recording on her cell phone. She emailed the recording to police. Kamara was arrested and charged with rape in the second degree.

THE JURY TRIAL

Before trial, Kamara moved under CrR 3.6 to suppress the audio recording as inadmissible under Washington’s privacy act, RCW 9.73.030. The trial judge found that the contents of the recording do not capture a conversation.

“What is recorded is not an exchange of information,” said the trial judge. “Instead, what it captures is an act of sexual assault.” The entire recording was played for the jury. As a result, the jury found Kamara guilty of rape in the second degree.

Kamara appealed his conviction. He argued that the trial judge erred in admitting the victim’s cell phone audio recording of the rape because it was a private conversation made without his consent and violated the privacy act.

COURT OF APPEALS’ ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying that Washington’s Privacy Act is considered one of the most restrictive in the nation. Under the Privacy Act, it is generally unlawful to record a private conversation without first obtaining consent of all persons engaged in the conversation. Information obtained in violation of the act is inadmissible in any civil or criminal case.

The Court discussed whether a recorded communication is “conversation.” Following that, it discussed whether the communication between Kamara and B.T. was a conversation.

“In determining whether a communication between individuals constitutes a ‘conversation’ under the privacy act, courts use the ordinary meaning of the term: “oral exchange, discourse, or discussion.” State v. David Smith, 85 Wn.2d 840, 846, 540 P.2d 424 (1975). Recordings of sounds that do not constitute a ‘conversation’ do not implicate the privacy act. David Smith, 85 Wn.2d 846. In particular, sounds of an assaultive act are not a conversation protected by the privacy act; a recording of such noise is admissible.” ~WA Court of Appeals.

Based on its review of the recording, the Court of Appeals agree with the trial court’s conclusion that the last nine minutes of the recording do not constitute a conversation, and instead record an assault.

But there is no “exchange of ideas and words” in the last nine minutes of the recording. And unlike in both Smith cases, the recording did not capture brief oral exchanges between B.T. and Kamara.

With that, the Court of Appeals agreed with the trial court that the last nine minutes of the recording contains the sounds of a sexual assault being committed. “This portion of the recording is not a private conversation as contemplated by the privacy act,” said the COurt of Appeals. It affirmed Kamara’s conviction and rejected his appeal.

My opinion? Washington courts are very protective of citizens’ privacy. Privacy issues are often implicated when law enforcement uses any form of electronic surveillance. True, Washington’s one-party consent law is among the most restrictive in the nation. Most legal and policy issues in this area involve the non-consensual acquisition of “private” communications. This is a highly sensitive area because it involves both fear of “big brother” and concerns for privacy.

Clearly, however, situations such as this case circumvent the protections of WA’s Privacy Act.

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.

Backlog of WA Rape Kits Eliminated

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Rape, Sex Crimes, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Oklahoma awarded grant to address rape kit backlog | KOKH

In a press release, State Attorney General Bob Ferguson announced that the last of more than 10,000 sexual assault kits have been cleared from shelves and sent to labs for testing. This marks a major milestone for the Attorney General’s Sexual Assault Kit Initiative. Washington’s backlog of rape kits has effectively been eliminated.

According to the press release, clearing the backlog and testing the kits has helped solve at least 21 sexual assault cases. The testing has resulted in more than 2,100 “hits” in the national DNA database, known as CODIS. A hit occurs when a DNA sample matches an individual or another case in the database, which generally consists of offenders.

“Effectively ending our sexual assault kit backlog is a historic step toward justice — but our work on behalf of survivors is not done. Through this collective effort, we ensured that survivors’ voices are heard, reformed a broken system, improved testing times, and solved crimes. This success proves that government can solve big problems when we work together. We are committed to working with our partners in law enforcement to prevent any more backlogs so we have the best chance of solving these serious crimes.” ~WA Attorney General Bob Ferguson.

In short, all 10,134 backlogged sexual assault kits found in the office’s inventory have been tested or submitted to a private lab for testing. The Washington State Patrol is still reviewing approximately 1,000 tested kits, many of which will be added to CODIS. That process should be completed by the end of the year.

Ferguson has worked with local law enforcement to collect DNA samples from registered sex offenders, violent offenders and individuals convicted of serious felonies who failed to comply with a legal obligation to provide their DNA. As a result, more than 2,000 new profiles have been added to the national DNA database.

Forensic genetic genealogy grants from Ferguson’s office have helped solve multiple cold cases across the state. The Attorney General’s Office has also provided more than $177,000 in grants to 53 local law enforcement agencies across the state with funding for refrigeration units to store evidence from sexual assault investigations.

Statute of Limitations

Given Washington’s backlog, a potential defense to sex offense charges is that the filing violates the Statute of limitations (SOL).

The statute of limitations is a statute that sets the maximum amount of time after an incident that the plaintiff has to initiate legal proceedings. Simply put, the statute of limitations sets the time limit that the State has to criminally charge the defendant. In 2019, Washington changed its statute of limitation (SOL) laws for sex offenses. Here’s a quick summary of SOL’s for specific offenses.

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.

Prosecution Is Not Required To Prove Nudity When Seeking Indecent Exposure Charges

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What Is Indecent Exposure? | Britton & Time Solicitors

In State v. Thompson, the WA Court of Appeals held that Washington’s Indecent Exposure Statute does not require the prosecution to prove the defendant was actual nude. Furthermore, the statute is not unconstitutionally vague.

BACKGROUND FACTS

Three 12-year-old girls playing in an apartment complex playground saw Mr. Thompson “touching his privates while looking at them” from his own apartment. One of the girls vividly described Thompson’s erect—but clothed—penis, and all three described him masturbating or touching himself over his clothing.

The State charged Thompson with felony indecent exposure under RCW 9A.88.010. Thompson twice moved to dismiss the charges. He argued that nudity is a required element of the crime. The trial court eventually granted the motion. It found that the law was unconstitutionally vague as applied to Thompson, who would not have known that his actions were prohibited.

The State appealled the dismissal of Thompson’s charges.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals addressed whether the Indecent Exposure Statute was constitutionally vague.

“A statute can be challenged as being facially vague or vague as applied,” said the Court. Here, the Indecent Exposure statute in question states the following:

“A person is guilty of indecent exposure if he or she intentionally makes any open and obscene exposure of his or her person or the person of another knowing that such conduct is likely to cause reasonable affront or alarm. The act of breastfeeding or expressing breast milk is not indecent exposure.” ~RCW 9A.88.010(1)

The court reasoned that Thompson’s deconstruction of the phrase “open and obscene exposure of his or her person” fails for two reasons. First, the terms “nudity” or “nude” or “clothed” or “unclothed” do not appear anywhere in the statute. “If the legislature wanted to criminalize nudity, as Thompson claims, it certainly knew how,” said the Court.

Second, our courts consistently have defined the phrase “obscene exposure,” not by breaking down the definition into its constituent parts as Thompson does, but by interpreting the phrase as a whole. “In short, our courts have defined the phrase “obscene exposure,” not as nudity, but as a kind of wrongful exhibition,” said the Court.

The Court further reasoned that as a matter of law, Indecent Exposure requires, not only exhibition of the genitals, but obscenity, i.e., lascivious behavior judged as improper by society.

“It is the exhibition and the behavior which are the gravamen of the crime. There would be no basis to prosecute the athletic, artistic, humorous, or celebratory display of the body, which in most contexts “common decency” requires a person not to display, unless it would also be deemed lascivious (i.e., filled with sexual desire) and improper by the common person.” ~WA Court of Appeals

The Court of Appeals concluded that under Thompson’s logic, a barely veiled erect penis used in the most sexualized and unwelcome manner imaginable would not be considered obscene because the genitalia is at least not naked. “Our interpretation of the statute does not allow such absurd results,” said the Court.

With that, the WA Court of Appeals concluded that the trial court erred in dismissing Thompson’s charge at issue as unconstitutionally vague. It reversed and vacated Thompson’s Dismissal Order and remanded the matter for further proceedings.

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.

Forensic Genetic Genealogy Is Admissible Evidence At Trial

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How DNA was discovered and the cases it has helped solve

In State v. Hartman  the WA Court of Appeals held a defendant has no privacy interest in bodily fluids that he “abandons” at a crime scene. A defendant also lacks standing to challenge a search of the DNA of relatives that were voluntarily uploaded to a public database.

BACKGROUND FACTS

In 1986, MW, a 12-year-old girl, was raped and murdered in a Tacoma park. The killer left semen on MW’s body, but his DNA did not match that of any suspects or anyone in police databases for the next 30 years.

In 2018, police enlisted Parabon Nanolabs, a DNA technology company, to analyze the killer’s DNA and to upload it into GEDmatch, a consumer DNA database, looking for partial familial matches that would help identify the killer. Police did not secure a warrant to analyze the abandoned DNA or to compare it with DNA in the GEDmatch database.

Parabon learned that several of the killer’s cousins had DNA in the GEDmatch database. Parabon used information from the database and public records to construct family trees. Parabon then directed police to try to obtain a DNA sample from Gary Charles Hartman. Police obtained a discarded napkin containing Hartman’s DNA, and it matched the DNA from semen on MW’s body. The State charged Hartman with first degree felony murder.

Before trial, Hartman moved to suppress the DNA evidence, arguing that Parabon’s comparison of the DNA sample from the crime scene to the GEDmatch database was unconstitutional. He also asserted that the DNA later collected from the napkin directly linking him to the murder was inadmissible as fruit of the poisonous tree. Hartman did not argue below that he had any privacy interest in DNA left at the crime scene, nor did he challenge the collection and testing of DNA from the discarded napkin.

The trial court ruled that Hartman did not have legal standing to challenge the comparison of the DNA from the crime scene to DNA in the GEDmatch database because he did not have a privacy interest in his cousins’ DNA in the database. In addition, Hartman’s relatives had voluntarily uploaded their DNA into the GEDmatch database, and the DNA that Hartman left at the crime scene was abandoned and not private. The trial court denied the motion to suppress. After a bench trial on stipulated facts, the trial court convicted Hartman.

Hartman appealed his conviction. He argues that analyzing the DNA sample from the crime scene and comparing it with the GEDmatch database to look for his relatives’ DNA disturbed his private affairs in violation of article I, section 7 of the Washington Constitution. Thus, he argues that he had standing to challenge the DNA comparison. In oral argument, he asserted for the first time that he has a privacy interest in the DNA from the semen abandoned at the crime scene.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals held there is no privacy interest in commonly held DNA that a relative voluntarily uploads to a public database that openly allows law enforcement access.

“Hartman claims a privacy interest in the segments of his DNA that his relatives had in common with him. But all that police learned from the GEDmatch analysis was the killer’s familial relations, which brought them closer to learning the killer’s identity. And identifying unknown family members is the exact reason that users of consumer databases, like Hartman’s relatives, post their genetic material on those databases.” ~WA Court of Appeals.

The Court also ruled there is no privacy interest in DNA that one abandons at a crime scene.

“Voluntary exposure to the public is relevant to our inquiry and can negate an asserted privacy interest.

Consequently, the Court reasoned that Hartman lost any privacy interest in the semen he left behind or the DNA it contained. Therefore, Hartman’s attempt to challenge any DNA analysis of the semen he left behind on MW’s body fails.

With that, the Court of Appeals affirmed Hartman’s convictions.

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.