Category Archives: Sex Crimes

Jail Phone Calls

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SUNDAY EDITION | Kentucky jails scrutinized for recording attorney-inmate phone calls | In-depth | wdrb.com

My clients in jail often ask me whether their phone calls from jail are recorded by the jail staff. In short, yes, they are. A recent case gives helpful insight to this  issues.

In  State v. Koeller, the WA Court of Appeals held that a jail inmate’s phone call with counsel that was recorded and was accessed by a deputy prosecuting attorney (DPA) did not establish a basis for dismissal of charges.  The DPA was the only person who accessed the 15-minute long call, and he stopped listening to the call after 8 seconds when he recognized defense counsel’s voice.

BACKGROUND FACTS

The defendant Mr. Koeller was alleged to have sexually abused his stepdaughter for years. The State also alleged aggravating circumstances of domestic violence and of an ongoing pattern of sexual abuse.

The Island County jail records incoming and outgoing phone calls, except for calls from attorneys. On October 11, 2017, Defense Counsel Mr. Platt provided his cell phone number to the Island County jail so the automated recording system would not record any calls made between him and the defendant Mr. Koeller. The jail failed to do so.

The next day, Island County chief criminal deputy prosecutor (Prosecutor) checked the automated recording system and saw Koeller made an outgoing, 15-minute phone call that day. Prosecutor began playing the call and heard Defense Counsel’s voice, so he shut off the recording. Prosecutor heard only eight seconds of the phone call. He immediately told Defense Counsel about the recording and told the jail to register Defense Counsel’s phone number because it had failed to shield Platt from being recorded.

On March 26, 2019, about one week before the scheduled start of trial, Koeller filed a CrR 8.3(b) motion to dismiss as a result of the recording. The court denied the motion. In its ruling, the court found no one else “in connection with the State of Washington listened to the conversation.”

At trial, Koeller was convicted of multiple charges, including first degree child molestation. He appealed on arguments that the trial court mistakenly denied his Motion to Dismiss.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that a criminal defendant has a constitutional right to confer privately with Defense Counsel. Where the government violates this right, it creates a rebuttable presumption of prejudice to the defendant.

Here, however, Prosecutor heard only eight seconds of the call between Koeller and Defense Counsel. He heard no substance of the conversation and no one else in connection to the Prosecutor’s Office listened to the conversation. The State did not obtain any information material to the defense.

“Although Koeller argues the court abused its discretion because the State did not prove Chief Briones did not listen to the call, the trial court found otherwise, and its finding is supported by substantial evidence. Because the court’s findings support its conclusion that Koeller was not prejudiced, the court did not abuse its discretion by denying the CrR 8.3(b) motion to dismiss.” ~WA Court of Appeals.

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

FBI Releases 2019 Hate Crime Statistics

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Pie chart depicting breakdown of motivations of bias-motivated crimes in the Hate Crime Statistics, 2019 report.

In a press release issued today, the FBI gave Hate Crime Statistics, 2019, which is the Uniform Crime Reporting (UCR) Program’s latest compilation about bias-motivated incidents throughout the nation. The 2019 data, submitted by 15,588 law enforcement agencies, provide information about the offenses, victims, offenders, and locations of hate crimes.

Law enforcement agencies submitted incident reports involving 7,314 criminal incidents and 8,559 related offenses as being motivated by bias toward race, ethnicity, ancestry, religion, sexual orientation, disability, gender, and gender identity.

Victims of Hate Crime Incidents

  • According to the report, there were 7,103 single-bias incidents involving 8,552 victims. A percent distribution of victims by bias type shows that 57.6% of victims were targeted because of the offenders’ race/ethnicity/ancestry bias; 20.1% were targeted because of the offenders’ religious bias; 16.7% were victimized because of the offenders’ sexual-orientation bias; 2.7% were targeted because of the offenders’ gender identity bias; 2.0% were victimized because of the offenders’ disability bias; and 0.9% were victimized because of the offenders’ gender bias.
  • There were 211 multiple-bias hate crime incidents, which involved 260 victims.

Offenses by Crime Category

  • Of the 5,512 hate crime offenses classified as crimes against persons in 2019, 40% were for intimidation, 36.7% were for simple assault, and 21% were for aggravated assault. Fifty-one (51) murders; 30 rapes; and three offenses of human trafficking (commercial sex acts) were reported as hate crimes. The remaining 41 hate crime offenses were reported in the category of other.
  • There were 2,811 hate crime offenses classified as crimes against property. The majority of these (76.6%) were acts of destruction/damage/vandalism. Robbery, burglary, larceny-theft, motor vehicle theft, arson, and other offenses accounted for the remaining 23.4% of crimes against property.
  • Two hundred thirty-six (236) additional offenses were classified as crimes against society. This crime category represents society’s prohibition against engaging in certain types of activity such as gambling, prostitution, and drug violations. These are typically victimless crimes in which property is not the object.

In Washington, Malicious Harassment is a crime you may face in addition to any other existing charges if the prosecution has deemed that there is sufficient cause to believe that your actions were motivated by personal bias or bigotry. Malicious Harassment is a Class C Felony. The statute reads:

“(1) A person is guilty of malicious harassment if he or she maliciously and intentionally commits one of the following acts because of his or her perception of the victim’s race, color, religion, ancestry, national origin, gender, sexual orientation, or mental, physical, or sensory handicap:

(a) Causes physical injury to the victim or another person;

(b) Causes physical damage to or destruction of the property of the victim or another person; or

(c) Threatens a specific person or group of persons and places that person, or members of the specific group of persons, in reasonable fear of harm to person or property. The fear must be a fear that a reasonable person would have under all the circumstances. For purposes of this section, a “reasonable person” is a reasonable person who is a member of the victim’s race, color, religion, ancestry, national origin, gender, or sexual orientation, or who has the same mental, physical, or sensory handicap as the victim. Words alone do not constitute malicious harassment unless the context or circumstances surrounding the words indicate the words are a threat. Threatening words do not constitute malicious harassment if it is apparent to the victim that the person does not have the ability to carry out the threat.”

The jury must put themselves into the shoes of what the statute defines as a reasonable individual, rather than their own mindset.  From a defense standpoint, the prosecutor’s burden of proof may be difficult to properly enact if the jurors are not members of the group that the alleged hate crime has offended. Moreover, not all crimes that occur between people of different races and nationalities are necessarily hate crimes.

Please contact my office if you or a loved one is currently facing charges for a hate crime, and/or Malicious Harassment. Defending against these allegations is difficult, and there is very little room for negotiation. Hiring competent and experienced defense counsel is your first and best step towards justice.

Cloud Storage & Privacy

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Best cloud backup of 2020: Top ways to get your data backed up online | TechRadar

Cloud Storage & Privacy. In State v. Harrier, the WA Court of Appeals held that a person holds no privacy interest in  images obtained by an internet cloud storage service provider who then gives the images to law enforcement.

BACKGROUND FACTS

Synchronoss Technologies, Inc. is an internet cloud storage provider that provides cloud based storage for Verizon Wireless customers. The defendant Mr. Harrier had a Verizon account and subscribed to Synchronoss Cloud storage.

Synchronoss ran a cursory search of all stored digital files and found six digital images with hash values matching those of known instances of child pornography. Synchronoss reported this information via CyberTip to the National Center for Missing and Exploited Children (NCMEC) who forwarded the information to local police for investigation.

The police opened and viewed the six image files and confirmed that the images were child pornography. Police then obtained search warrants based on the descriptions of the images and served them on Verizon and Synchronoss. The search warrant directed Synchronoss to provide “all information” held by Synchronoss associated with the suspect telephone number associated with the images.

Police received information from Verizon that confirmed that Harrier was the subscriber/account holder for the suspect telephone number. Synchronoss also gave police a thumb drive containing account data associated with the suspect telephone number.

Law enforcement obtained a search warrant for Harrier’s residence. They seized Harrier’s cell phone. The cell phone was determined to be the same phone associated with the Verizon account and the Synchronoss files that were the basis of the initial search warrant.

Law enforcement interviewed Harrier after advising him of his constitutional rights prior to asking questions. He made incriminating statements. Harrier was later charged with two counts of first degree possession of depictions of a minor engaged in sexually explicit conduct and three counts of second degree possession of depictions of a minor engaged in sexually explicit conduct.

Prior to trial, Harrier filed a 3.6 motion to suppress the evidence against him, and the trial court denied the motion. The parties proceeded to a bench trial. Harrier was found guilty as charged. Harrier appealed on arguments that the police, by opening and viewing the images from NCMEC, exceeded the scope of Synchronoss’ lawful search of the images and thus, the opening and viewing of the images was unlawful, and the trial court erred by denying his motion to suppress.

COURT’S ANALYSIS & CONCLUSIONS

In short, the WA Court of Appeals held that Harrier had no privacy interest in the images obtained by Synchronoss and delivered to the police; therefore, the police’s viewing of the images was not a warrantless search.

The Court reasoned that the Fourth Amendment protects a person’s subjective and reasonable expectation of privacy. Also, the WA Constitution in article I, section 7 provides that no person shall be disturbed in his private affairs, or his home invaded, without authority of law.

However, the Court reasoned that if a private affair is not disturbed, then there is no Constitutional violation. Also, the Court rejected Harrier’s arguments the Private Search Doctrine prohibited the police from obtaining contraband:

“The Private Search Doctrine is based on the rationale that an individual’s reasonable expectation of privacy is destroyed when the private actor conducts his search,” said the Court of Appeals. “Our Supreme Court held in Eisfeldt that the private search doctrine is inapplicable under our State Constitution.”

The court also recognized that when a private party hands evidence over to the police, there is no privacy interest in that evidence:

“We know from the hash values that the files Synchronoss found were child pornography and that this information, the images, and the CyberTip are reliable . . . Because a private party conducted the search and the images are contraband, Harrier did not have a privacy interest in them. Thus, the police’s opening and viewing the images from a private party was not unlawful. Accordingly, Harrier’s arguments fail.” ~WA Court of Appeals.

The Court concluded that the trial court did not err by denying Harrier’s motion to suppress and affirmed Harrier’s convictions.

Please contact my office if you, a friend or family member were arrested after police found incriminating evidence from a questionable search of cyber account information. And please review my Legal Guide on Search & Seizure. Hiring an experienced criminal defense attorney is the first and best step towards justice.

Entrapment & Sex Crimes

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Online sting was 'clear case of entrapment:' lawyer | CTV News

In State v. Johnson, the WA Court of Appeals held that a Defendant cannot claim Entrapment for numerous attempted sex offenses by responding to a fake Craigslist add in the “Casual Encounters” section created by police officers conducting an online sting operation.

BACKGROUND FACTS

Law enforcement created a posting in the Craigslist casual encounters section. Mr. Johnson responded to the ad. His communications with the (as-yet-unknown) police led Mr. Johnson to believe the add was posted by a 13-year-old female named “Brandi” who was home alone. Mr. Johnson was instructed to drive to a minimart and await further instructions via text. Johnson drove to the designated minimart. “Brandi” then gave Johnson the address of the house and he drove toward that location. Law enforcement apprehended Johnson while on his way from the minimart to the house. At the time of his arrest, Johnson was carrying forty dollars.

Johnson was charged with (1) attempted second degree rape of a child, (2) attempted commercial sexual abuse of a minor, and (3) communication with a minor for immoral purposes. During trial, he requested the Entrapment Defense via a jury instruction. However, the trial judge denied Johnson the defense and jury instruction. The jury found him guilty of all charges.

Johnson appealed, claiming ineffective assistance of counsel and that the trial judge erred by denying the Entrapment defense.

COURT’S ANALYSIS & CONCLUSIONS

The court explained that in order to prove the affirmative defense of entrapment, a defendant must show, by a preponderance of the evidence, that he committed a crime, that the State or a State actor lured or induced him to commit the crime, and that the defendant lacked the disposition to commit the crime. A defendant may not point to the State’s absence of evidence to meet his evidentiary burden for an affirmative defense. Importantly, as a matter of law, the Court also stated the following:

“Entrapment is not a defense if law enforcement merely afforded the actor an opportunity
to commit a crime.”

“Here, Johnson points to no evidence to support an entrapment instruction,” reasoned the Court. Here, law enforcement created a Craigslist posting purporting to be a woman looking for a man to teach her how to be an adult. This add, however, was not entrapment on the part of police. The add merely presented an opportunity for Mr. Johnson to incriminate himself and commit a crime:

“Johnson initiated contact by answering the posting. Johnson testified that no one forced him to answer the posting. Although Johnson stated he wanted to be cautious because ‘Brandi’ was underage, he steered the conversation into explicitly sexual territory by graphically explaining his sexual desires to the purported thirteen-year-old. When ‘Brandi’ suggested meeting at a later time, Johnson declined, stating that he was available to meet. There is no evidence that law enforcement lured or induced Johnson.”

The court also rejected Johnson’s argument that he was entitled to an entrapment instruction because the State failed to show he had a predisposition to commit the crimes against children, and there was no evidence of a history regarding perverse activity towards children.

“But pointing to the State’s absence of evidence does not meet Johnson’s evidentiary burden for his affirmative defense,” said the Court. Instead, explained he Court, the evidence shows that law enforcement merely afforded Johnson the opportunity to commit his crimes. Johnson willingly responded to the posting, steered the conversation to explicitly sexual topics, testified that he wanted to meet the person, and drove to the agreed locations.

The Court of Appeals concluded that because Johnson failed to show any evidence entitling him to a jury instruction on entrapment, the trial court did not err by refusing to instruct the jury on entrapment. The court also denied Mr. Johnson’s claims of ineffective assistance of counsel.

My opinion? Entrapment is a very difficult defense to prove under these circumstances. Law enforcement officers are allowed to engage in sting operations, whereby they create circumstances that allow individuals to take criminal actions that they can then be arrested and prosecuted for. These are considered “opportunities” for individuals believed to be involved in criminal behavior to commit crimes. An opportunity is considered very different from entrapment and involves merely the temptation to violate the law, not being forced to do so.

Please contact my office if you, a friend or family member face sex offenses and Entrapment could be a substantive defense. Hiring an experienced criminal defense attorney is the first and best step towards justice.

Police Stop Booking Some People Into Whatcom Jail Due To Coronavirus

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Whatcom County law enforcement agencies stopped booking people into the Whatcom County Jail for certain crimes on Thursday, March 19, due to the coronavirus outbreak.

Apparently, people arrested will be booked and released for everything except certain offenses that represent a serious threat to public safety. Those crimes include domestic violence, violations of a no-contact order, felony DUI, sex offenses, burglary and other violent crimes. Those booked for misdemeanor DUI will be held until sober.

The memo suggests officers arrest, book and release people when they can, giving them notice of when to appear in court. And those who are booked on charges that pose a threat to public safety will be held until they see a judge.

At this point, seven Whatcom County residents have been diagnosed with the respiratory illness, one of whom died, according to the Whatcom County Health Department.

Whatcom County Sheriff Bill Elfo said the measures are looking out for the health of the people who work in the jail, as well as those incarcerated there.

“They’re in place because of some compelling public safety and public health issues. We want to prevent the spread of COVID-19, but do it in a way that doesn’t minimize public safety. We’re still booking and holding violent people. These are temporary measures . . . We’re trying to take the jail population as low as we can safely and reasonably do under the circumstances.” ~Sheriff Bill Elfo

Please contact my office if you, a friend or family member face criminal charges and are jailed indefinitely in the midst of the Coronavirus Pandemic. Obviously, getting released as soon as possible is a major priority. And hiring an experienced attorney is the first and best step toward justice.

Crime Rates By WA Cities

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A recent report from www.backgrounchecks.org  ranks Washington cities by crime rates. In short, although Washington cities are lower than average violent crime, there’s an increase in property crime.

“In the state’s larger cities such as Seattle and Spokane, you’re more likely to have your car broken into than become the victim of an assault. Still, despite Washington’s property crime issue, there are plenty of communities in the state with an all-around high level of safety.”  ~backgroundchecks.org

According to the report, the safest city in Washington is Snoqualmie. Recording just two violent crimes in 2017, Snoqualmie logged a very low 0.15 violent crimes per 1,000 residents, along with a property crime rate half of the U.S. national average.

Backgroundchecks.org uses the most recent FBI crime statistics to create state rankings. There were initially 7,430 cities in the data set. After filtering out the cities with populations of less than 10,000, 2,929 cities remained. The website then calculated violent crime rates and property crime rates by dividing the crime numbers by the population to get rates per 1,000. They also calculated the ratio of law enforcement workers to per 1,000. These were weighted with -50% for the violent crime rate, -25% for the property crime rate, and +25% for the law enforcement rate. The resulting metric gave us a the safety index score. In short, the higher this number more safe the city is.

Not every person arrested is guilty of a crime.  Other studies show that densely populated cities also have higher incidence of overall arrests. Therefore, 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.

Unlawful Jury Selection

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Getting Rid Of Bad Jurors Through Unconventional Means - Trial Practice Tips

In State v. Guevara Diaz the WA Court of Appeals held that seating a juror without questioning  regarding her ability to be fair can never be harmless and requires a new trial without a showing of prejudice.

BACKGROUND FACTS

The State charged Mr. Diaz with one count of second degree rape and one count of third degree rape. At the beginning of trial, the judge explained to the jury that he and the attorneys would be asking them questions, first with a questionnaire and then orally. The judge told the potential jurors that counsel had prepared a questionnaire and pointed out that each juror had “the opportunity to be questioned outside the presence of the other jurors in the event that certain questions are answered yes.”

Thirteen jurors stated that they wished to be questioned outside the presence of other jurors. Seven of them had answered they could not “be fair.” Six others, including juror 23, who also answered that they “could not be fair” did not ask to be questioned outside the presence of other potential jurors.

At the conclusion of jury selection, the court seated two jurors who said that they could not be fair. One of those jurors included juror 23. The jury found Mr. Diaz guilty of one count of second degree rape and one count of third degree rape (this conviction was later overturned on double jeopardy grounds).

On appeal, Mr. Diaz argued that the trial court violated his constitutional right to a fair and impartial jury by allowing a biased juror to serve.

COURT’S ANALYSIS & CONCLUSIONS

First, the WA Court of Appeals held that the trial court should not have allowed juror 23 to serve because she expressed actual bias without further inquiry.

“A criminal defendant has a federal and state constitutional right to a fair and impartial jury. Seating a biased juror violates this right. Because the presence of a biased juror cannot be harmless, seating an actually biased juror requires a new trial without a showing of actual prejudice.”

Second, the Court held that juror 23 demonstrated actual bias when she answered “No” to the fairness question.

The Court explained that the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution both guarantee a criminal defendant the right to trial by an impartial jury. To protect this right, a party may challenge a juror for cause. Actual bias provides a basis to challenge a juror for cause.

“The trial court should have addressed this actual bias by questioning juror 23 or allowing defense counsel to question her outside the hearing of other jurors,” said the Court. “Under the circumstances of this case, any court questioning also should have occurred outside the hearing of other jurors because of defense counsel’s viable concern over questioning potentially biased jurors in front of the jury pool.”

With that, the Court of Appeals reversed Mr. Diaz’s conviction and remanded his case for a new trial.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an experienced defense attorney with a record of favorable verdicts and results is the first and best step toward justice.

Sexsomnia

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In State v. Pratt, the WA Court of Appeals held that Sexsomnia is an abnormal activity, similar to sleepwalking, that involves people engaging in sexual acts during sleep.  However, the trial court’s exclusion of expert testimony regarding sexsomnia did not violate the defendant’s Sixth Amendment right to present a defense because no psychological evaluation could determine whether the defendant suffered from sexsomnia at the time of the offense or that the defendant had the disorder.

BACKGROUND FACTS

The State charged Mr. Pratt with child molestation in the first degree based on an allegation by the juvenile victim MB that Pratt had sexually assaulted her while they were both sleeping in a tent for her cousin’s birthday sleepover party. The party occurred at the home of Pratt’s aunt and uncle. MB is the daughter of Pratt’s aunt’s stepsister.

Before trial, Dr. C. Kirk Johnson, a psychologist, evaluated Pratt to determine if he suffered from a sleep disorder called sexsomnia. Sexsomnia is an abnormal activity, similar to sleepwalking, that involves people engaging in sexual acts during sleep. Johnson concluded that a possible explanation for Pratt’s actions included sexsomnia, but he could not confirm it happened.

At a pretrial evidentiary hearing, Pratt indicated he wanted Johnson to testify as an expert at trial about sexsomnia. Although Johnson could not conclude that Pratt had the disorder, he would testify that sexsomnia exists. Pratt wanted to use this testimony to support his general denial defense. Pratt wanted to argue at trial that if a person is asleep, they cannot be guilty because any touching would not have been done for the purpose of sexual gratification. Pratt viewed being asleep as a general denial.

The State moved to exclude the testimony on grounds of relevance. The judge was concerned that calling an expert to testify about sexsomnia could amount to “a back door diminished capacity.” The judge granted the State’s motion to exclude.

Pratt waived a jury. At a bench trial, court found Pratt guilty as charged. Over the State’s and the victim’s objections, the court imposed a SSOSA disposition. The State appealed the sentence. Pratt cross-appealed the exclusion of Dr. Johnson’s testimony.

COURT’S ANALYSIS & CONCLUSIONS

First, the Court of Appeals reasoned that in order to be eligible for a SSOSA sentence, a defendant must have a connection with the victim which is independent of the crime. Here, Pratt was not eligible for a SSOSA sentence because it is clear that Pratt did not have an “established connection” with MB. Other than the sexual molestation, their only connections involved Pratt giving MB a skewer with marshmallows and asking MB her name.

Second, regarding the defense of Sexomnia, the Court of Appeals reasoned that under State v. Utter, Washington courts have recognized a defense of involuntary action due to sleepwalking where, at the time of the crime, the offender was clearly unconscious.

Furthermore, the defense of involuntary action as a result of being asleep, therefore, should not be treated as one of diminished capacity. Instead, involuntariness due to sleep is an affirmative defense that must be proved by the defendant by a preponderance of the evidence.

In this case, however, the Court of Appeals reasoned that Dr. Johnson could not testify that Pratt suffered from sexsomnia either on the night of the sexual molestation or ever.

“The fact that this disorder exists is irrelevant without some tendency to make the existence of sexsomnia of consequence to the determination of the action more probable than it would without the evidence. No nexus existed between Pratt, sexsomnia, and his actions on the night of the molestation.”

Therefore, the Court of Appeals held that the trial court properly excluded Johnson’s testimony because it was irrelevant to both the general denial defense and to a defense of lack of volition. With that, the Court of Appeals affirmed Pratt’s conviction.

Please contact my office if you, a friend or family member are charged with a crime and the defense involves being unconscious due to sleepwalking, and/or experiencing a medical condition called “slow wave sleep.”

I’ve successfully obtained dismissal of criminal charges for prior clients who were asleep and/or unconscious during the commission of crimes. Expert testimony might be necessary to educate the jury of a possible Diminished Capacity defense.

Rape By Forcible Compulsion or Consent?

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GDPR Brief: What is the difference between research ethics consent and data protection consent?

In State v. Knapp, the WA Court of Appeals held a defendant charged with rape by forcible compulsion is not entitled to a jury instruction that requires the State to prove the absence of consent beyond a reasonable doubt.

BACKGROUND FACTS

Mr. Knapp and Ms. Spaulding met in high school and were friends for more than a decade. On February 7, 2016, Ms. Spaulding was preparing to watch the Super Bowl when Knapp came to her home. Ms. Spaulding let him in. The events following this were disputed.

According to Ms. Spaulding, Knapp began to make sexual comments toward her and expressed an interest in having sex. Ms. Spaulding denied his advances. Knapp then left, but soon returned to the home, claiming he forgot his bandana. Ms. Spaulding let him in again and while she was sitting on the couch, Knapp threw her to the ground and pulled down her pants.

Ms. Spaulding screamed for her neighbors, but they did not hear her. Knapp then used his bandana to gag her. The struggle continued until Knapp pinned her against a wall and raped her. Ms. Spaulding continued to say, “No,” “Stop,” and “Don’t do this.” Knapp left, and Ms. Spaulding called her mother and then the police. Ms. Spaulding was taken to the hospital where she underwent a sexual assault examination.

According to Knapp, he and Ms. Spaulding were “friends with benefits” for years and engaged in sex together on and off. After Ms. Spaulding let him in the first time, Ms. Spaulding realized Knapp was high on methamphetamine and she hinted that she wanted some. Knapp refused to give her any. Ms. Spaulding became upset, and Knapp decided to leave.

After he left, Knapp realized he forgot his bandana and returned to retrieve it. Ms. Spaulding let him in again, and she pressed Knapp to get her high. Eventually, Ms. Spaulding offered sex for drugs. At that point, Knapp “gave in” and they had sex. Afterward, Knapp could not find the methamphetamine to give to her. Ms. Spaulding became upset and threatened to call the police and falsely accuse him of rape. Knapp left and was later arrested. The State charged Knapp with rape in the second degree by forcible compulsion.

THE TRIAL

At trial, Knapp requested a jury instruction that told the jury the State had the burden of proving an absence of consent beyond a reasonable doubt. The State opposed this instruction, arguing it was not a correct statement of the law. The State instead proposed Washington pattern jury instruction 18.25, which reads, “Evidence of consent may be taken into consideration in determining whether the defendant used forcible compulsion to have sexual intercourse.”

The trial court declined to give Knapp’s proposed instruction and instead gave the State’s. The jury found Knapp guilty of second degree rape. The trial court sentenced Knapp to a midrange sentence—110 months to life.

Knapp appealed on the issue of whether the jury was properly instructed on the issue of consent.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying that at trial, each party is entitled to have the jury instructed on its theory of the case when there is sufficient evidence to support that theory.

“Jury instructions are sufficient if they are supported by substantial evidence, allow the parties to argue their theories of the case, and when read as a whole properly inform the jury of the applicable law,” said the Court. “Read as a whole, the jury instructions must make the legal standard apparent to the average juror.”

Here, both parties relied heavily on State v. W.R., a case which apparently offers confusing interpretations of which party in a criminal sex case has the burden of proving consent.

The Court acknowledged that Knapp argued that W.R. stands for the proposition that the burden to prove consent has now shifted to the State, and the State must prove a lack of consent beyond a reasonable doubt. Knapp’s proposed jury instruction read: “Consent means that at the time of the act of sexual intercourse there are actual words or conduct indicating a freely given agreement to have sexual intercourse. The Defendant has no burden to prove that sexual intercourse was consensual. It is the State’s burden to prove the absence of consent beyond a reasonable doubt.”

However, the Court of Appeals disagreed with Knapp:

“The court in W.R. focused on whether the burden to prove consent was correctly placed on the defendant. It did not hold that the State must prove the absence of consent.”

The Court ruled that the trial court did not commit legal error when it denied Knapp’s proposed instruction. “Knapp’s proposed instruction was an incorrect statement of the law,” it said. “W.R. did not hold that the burden to prove an absence of consent shifted to the State. Instead, it held that the burden to prove consent cannot be placed on the defendant.”

Furthermore, when read as a whole, the trial court’s instructions allowed Knapp to argue his theory of the case. “Knapp claimed the sexual intercourse was consensual,” said the Court of Appeals. “The court’s instructions on the elements of the offense and consent allowed Knapp to argue his theory of the case—that Ms. Spaulding consented to sexual intercourse and the State failed to prove forcible compulsion beyond a reasonable doubt.”

With that, the Court of appeals affirmed Knapp’s conviction.

Please contact my office if you, a friend or family member face a sex offense. Consent is a viable defense, and evidence of consent may be considered by the jury. Therefore, it’s imperative to hire a defense attorney knowledgeable of the law surrounding these issues.

A Cell Phone “Ping” Is a Search

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In State v. Muhammad, the WA Supreme Court held that a cell phone “Ping” is a search under the WA Constitution and the Fourth Amendment.

BACKGROUND FACTS

Police investigated the rape and murder of Ms. Ina Claire Richardson. The night she was killed, Richardson had shopped at a local grocery store.  Security cameras recorded her walking through the parking lot toward a distinctive maroon sedan. Minutes later, the vehicle’s headlights switched on, and the vehicle exited the parking lot, drove onto an access road behind a nearby hotel, and parked. Two individuals appeared in the car, which remained parked for approximately one hour. Police officers later discovered a condom wrapper at this location.

On November 10, 2014, a law enforcement officer recognized the unique features of the maroon sedan from the security footage and conducted a traffic stop. The driver was Mr. Muhammad. During the stop, the officer asked Muhammad about his vehicle, asked him whether he had gone to the grocery store or had been in the area on the night of the murder, and obtained Muhammad’s cell phone number before letting him go.

After this encounter, law enforcement “pinged” Muhammad’s cell phone without a warrant. The ping placed Muhammad in an orchard in Lewiston, Idaho. Washington and Idaho police arrived, seized Muhammad’s cell phone, and impounded his car. Police also sought and obtained a search warrant for Muhammad’s car.

Muhammad was taken into custody. He denied any involvement in the rape and murder and eventually asked for legal counsel. Police later searched Muhammad’s car. They discovered blood on the passenger seat; in the trunk, they found latex gloves and other incriminating evidence. The police also discovered condoms in the trunk of the sedan. These condoms matched the condom wrapper found by the hotel service entrance. Finally, The blood was matched to that of Ms. Richardson. Autopsy swabs of Richardson’s vagina and fingernails revealed a limited amount of DNA (deoxyribonucleic acid) matching Muhammad’s profile.

The police obtained a search warrant for Muhammad’s cell phone records. These calls he made on the night of the incident connected to multiple cell towers, indicating that Muhammad was moving. One such cell tower placed Muhammad in the location where Richardson’s body was found.

Muhammad was arrested and charged with rape and felony murder.

At trial, Muhammad moved to suppress all physical evidence collected as a result of the warrantless ping of his cell phone. After a CrR 3.6 hearing, the trial court issued a written order denying the motion based in part on exigent circumstances. A jury convicted Muhammad as charged. Muhammad appealed his convictions.

COURT’S ANALYSIS & CONCLUSIONS

  1. The Cell Phone “Ping” Tracking Was A Warrantless Search.

The WA Supreme Court held that the “ping” tracking of Muhammad’s cell phone was indeed a search.

“When law enforcement loses sight of a suspected individual, officers need merely ask a cellular service carrier to ping that individual’s phone and almost instantaneously police acquire data on the suspect’s past and present location,” said the Court. “This location tracking technique does substantially more than binoculars or flashlights; it enables officers to see farther than even the walls of a home—it pierces through space and time to pinpoint a cell phone’s location and, with it, the phone’s owner.”

The Court further reasoned that this type of search was exactly what happened to Mr. Muhammad. “The police could not locate Muhammad,” said the Court. “They knew only that he had likely left the area after officers returned to his apartment complex and found the maroon sedan had disappeared. As Muhammad pointed out, the officers’ senses alone could not locate him unless they converted his phone into a tracking device,” said the Court.

“Historical and real-time CSLI, like text messages, reveal an intensely intimate picture into our personal lives. Our cell phones accompany us on trips taken to places we would rather keep private, such as the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on.”

              2. Exigent Circumstances Exist to Justify the Warrantless Cell Phone Search.

The Court said that because the State failed to get a warrant prior to pinging Muhammad’s cell phone, the evidence obtained pursuant to the improper search should be suppressed unless the State proves that an exception to the warrant requirement applies. “Exigent Circumstances” is one of those exceptions.

To prove exigent circumstances, the State must point to specific, articulable facts and the reasonable inferences therefrom which justify the intrusion. “The mere suspicion of flight or destruction of evidence does not satisfy this particularity requirement,” said the Court.

The Court reasoned that under the facts of this case, the State has proved exigent circumstances—specifically that Muhammad was in flight, that he might have been in the process of destroying evidence, that the evidence sought was in a mobile vehicle, and that the suspected crimes (murder and rape) were grave and violent charges.

With that, the WA Supreme Court affirmed Muhammad’s conviction.

Please read my Search and Seizure Legal Guide and contact my office if you, a friend or family member face criminal charges and the evidence was obtained through a warrantless search of cell phone data and/or location. It is imperative to hire an experienced criminal defense attorney who is well-versed in the law regarding search and seizure of this evidence.