Category Archives: Technology

Privacy & Text Messages

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, felony, Methamphetamine, Mount Vernon Criminal Defense Attorney, Privacy, Search and Seizure, Skagit County Criminal Defense, Technology, Text Messages, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Cop Cams New To Most But Old School For Modesto PD - capradio.org

Privacy & Text Messages. In State v. Bowman, the WA Court of Appeals held that a police officer violates a defendant’s constitutional rights by sending a text message to the defendant from an unfamiliar phone number while impersonating a known contact of the defendant.

BACKGROUND FACTS

A Department of Homeland Security (DHS) agent sent a series of text messages to Mr. Bowman. The DHS agent claimed to be someone named Mike Schabell, a person to whom Bowman had sold methamphetamine earlier that day, and indicated he wanted to buy more drugs. The ruse led to charges of possession of methamphetamine with intent to deliver.

The trial court denied his motion to suppress the drugs and drug paraphernalia on his person and in his vehicle. At trial, Mr. Bowman was found guilty.

On appeal, Bowman argues the trial court erred in denying his motion to suppress evidence that flowed from his text message conversation with the DHS Agent. Specifically, he argues that DHS Agent’s impersonating a known contact of his through text messages violated his right to privacy under the Washington Constitution.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that under article I, section 7 of the Washington Constitution, no person shall be disturbed in his private affairs, or his home invaded, without authority of law.

“Interpretation of this article requires a two part analysis,” said the Court. “First, we must determine whether the action complained of constitutes a disturbance of private affairs,” said the Court. “If we determine that a valid private affair has been disturbed, we then must determine whether the intrusion is justified by authority of law.”

The DHS Agent’s Actions Disrupted Mr. Bowman’s Private Affairs.

The Court of Appeals began by defining “Private affairs” as those privacy interests which citizens of this state have held, and should be entitled to hold, safe from government trespass without a warrant.

Based on that, the Court reasoned Mr. Bowman did not talk with someone he thought was a stranger. Rather, he conversed with a person who represented himself as someone that Bowman knew. Therefore, reasoned the court, Bowman had a reasonable expectation of privacy for that conversation. The DHS agent invaded that right of privacy.

The DHS Agent Was Not Acting Under Authority of Law.

The Court of Appeals reasoned that although Mr. Schabell consented to the search of his phone, there was no proof that he consented to being impersonated.

“Therefore, Dkane was not acting under authority of law, and violated Bowman’s right of privacy,” said the Court. “The trial court erred by failing to suppress the evidence obtained by that violation of privacy.”

With that, the Court of Appeals reversed Mr. Bowman’s conviction and remanded for a new trial, with instructions to suppress evidence obtained in violation of Bowman’s right to privacy.

My opinion? Good decision.

Cloud Storage & Privacy

Bellingham Defense Attorney, Constitutional Rights, felony, Fourth Amendment, Mount Vernon Criminal Defense Attorney, Privacy, Sex Crimes, Skagit County Criminal Defense, Technology, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

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.

Right to Confront Victim Witnesses At Trial

9th Circuit Court of Appeals, Bellingham Defense Attorney, Confrontation Clause, Federal Crimes & Prosecutions, Sex Crimes, Sixth Amendment, Skagit County Criminal Defense, Technology, Whatcom County Criminal Defense, , , , ,

Image result for right to confront

In  United States v. Carter, the Ninth Circuit Court of Appeals held that a victim’s testimony from her hospital bed in Minnesota via two-way video violated the defendant’s  Sixth Amendment right to confrontation.

BACKGROUND FACTS

Mr. Carter was convicted of forcing seven minor girls into prostitution and trafficking them across state lines. The crimes took place over a ten-year period from 2003 to 2013. For each of the seven victims, Carter was charged with one count of violating 18 U.S.C. § 1591 (sex trafficking of a minor or by force, fraud, or coercion), and one count of violating 18 U.S.C. § 2423(a) (transportation of a minor in interstate commerce to engage in prostitution), for a total of fourteen counts.

One week before Carter’s April 2016 trial, the Prosecution anticipated bringing the testimony of J.C., the victim for Counts 13 and 14. J.C., who was by then an adult living in Minnesota, was seven months pregnant with a due date in June. The government explained that J.C. had been hospitalized for complications with her pregnancy and that her doctor had instructed her not to travel from Minnesota to California.

Accordingly, the government sought to have her testify during trial from Minnesota via live two-way video conference.

Carter opposed on Confrontation Clause grounds. Nevertheless, the federal district court granted the government’s application to use two-way video, and the case proceeded to trial. On the second day of trial, Carter again objected to the two-way video procedure. Again, the federal district court denied Carter’s motion.

J.C. testified by two-way video at trial. She stated that she met Carter in 2013, when she was 16 years old. She was living in Minnesota at the time, and Carter bought her a bus ticket to Los Angeles under an alias because she was underage. When she arrived in Los Angeles, Carter picked her up and took her to a motel room. There, he photographed her in lingerie and used the photographs in an advertisement on Backpage, a website used to advertise sexual services. She then worked as a prostitute for Carter for approximately two weeks. She testified that Carter kept all of her earnings, dictated how much she should charge and what she should wear, and threatened to beat her if she did not comply.

Carter was ultimately convicted on all fourteen counts. He appealed.

COURT’S ANALYSIS & CONCLUSIONS

The Ninth Circuit Court of Appeals held that a defendant’s right to physically confront an adverse witness cannot be compromised by permitting the witness to testify by video unless use of the remote video procedure is necessary and the reliability of the testimony is otherwise assured.

The Court reasoned that the victim’s inability to travel to the trial location was due to a temporary pregnancy-related condition. Therefore, a continuance of the trial was a more appropriate solution. Furthermore, testimony from a remote location requires proof that the witness is not being coached or influenced during testimony, that the witness is not improperly referring to documents, that the witness has an adequate view of the courtroom, and that the jury has an adequate view of the witness.

Here, none of those proof conditions were met. Because alternatives were available for obtaining a victim-witness’s testimony that would have preserved the defendant’s right to physical confrontation, the use of a remote video was not necessary in this case, and violated the defendant’s Sixth Amendment right to confront the witnesses against him.

Consequently, the Court vacated the defendant’s convictions  on one count of violating 18 U.S.C. § 1591 (Sex Trafficking of a Minor) and remanded for re-sentencing on remaining counts as to which the panel affirmed the defendant’s convictions in a concurrently-filed memorandum disposition.

My opinion? Despite Mr. Carter’s terrible charges, allegations and fact pattern, the Ninth Circuit made the correct decision on his behalf. The Sixth Amendment’s right to face-to-face confrontation ensures the integrity of the fact-finding process and forms the core of the values furthered by the Confrontation Clause.

Although exceptions to the Confrontation Clause rightfully exist – for example, if the testifying victim is a child who would suffer significant emotional trauma from being in the same room as their offender – these exceptions are narrow. Remote two-way video cameras can be used and substituted for face-to face contact upon a case-specific finding that (1) the denial of physical confrontation is necessary to further an important public policy, and (2) the reliability of the testimony is otherwise assured.

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.

Facebook Photos Admissible

"No-Impeachment" Rule, Bellingham Defense Attorney, Business Record, ER 404(B), Evidence, Federal Crimes & Prosecutions, Firearm, Fourth Amendment, Search Warrant, Skagit County Criminal Defense, Social Media, Technology, Uncategorized, Whatcom County Criminal Defense, , , , ,

Image result for facebook social media admissible evidence court

The 6th Circuit Federal Court of Appeals‘ recent court decision United States v. Farrad gives a very comprehensive analysis regarding the admissibility of Facebook records. In short, the  Court held that (1) photographs from a Facebook account were properly authenticated by evidence that the photos in question came from a Facebook account registered to the defendant and the photos appeared to show the defendant in his own apartment, and (2) The Facebook photographs were self-authenticating as a business record.

Washington’s evidence rules are either identical to, or extremely similar, to the federal rules discussed in the opinion.

BACKGROUND FACTS

After serving time in prison for a previous felony, Farrad was released from federal
custody in January 2013. Farrad came to the attention of local law enforcement sometime after June 10 of that same year, when various confidential informants and concerned citizens evidently reported observing Farrad to be in possession of one or more firearms while in Johnson City, Tennessee.

Some time later, a Officer Garrison of the Johnson City Police Department used an undercover account and sent Farrad a friend request on Facebook. After Farrad accepted the friend request, Garrison was able to see more of Farrad’s photos. One photo in particular caught his interest: a photo that showed what appeared to be three handguns sitting on a closed toilet lid in a bathroom. The photo was uploaded on October 7, 2013.

Garrison brought the photo to the attention of Johnson City police officer and FBI task
force officer Matthew Gryder, who applied on October 25, 2013, for a warrant to search Farrad’s Facebook’s records. A federal magistrate judge granted the warrant. The warrant allowed execution “on or before November 6, 2013,” and the return executed by federal law enforcement indicates that the warrant was “served electronically” on Facebook on November 1, 2013.

The resulting data yielded a series of additional photos that were central to this case: some show a person who looks like Farrad holding what appears to be a gun, while others show a closer-up version of a hand holding what appears to be a gun.

While none of the photos shows a calendar, date, or one-of-a-kind distinguishing feature, the person in the photos has relatively distinctive tattoos, and some of the photos show, as backdrop, the décor of the room in which they were taken. Facebook records revealed that the photos had been uploaded on October 11, 2013.

In September 2014, a federal grand jury charged Farrad with having, on or about October 11, 2013, knowingly possessed a firearm, namely, a Springfield, Model XD, .45 caliber, semiautomatic pistol.

On March 26, 2015, Farrad filed a pro se motion seeking an evidentiary hearing, dismissal of the indictment against him, and suppression of the Facebook photos on Fourth Amendment grounds. The magistrate judge assigned to Farrad’s case denied that motion on April 9, 2015, on the grounds that Farrad already had appointed counsel and the local rules prohibited a represented party from acting in his or her own behalf without an order of substitution. Farrad’s trial counsel did not renew Farrad’s motion.

The parties did, however, litigate the admission of the photos on evidentiary grounds.
The Government argued that the Facebook photos qualified as business records under Federal Rule of Evidence 803(6) and that they were, as such, self-authenticating under Federal Rule of Evidence 902(11).

In support of its assertion, the Government introduced a certification by a Facebook-authorized records custodian, who attested that the records provided by Facebook—including “search results for basic subscriber information, IP logs, messages, photos, and other content and records for Farrad’s Facebook identity were made and kept by the automated systems of Facebook in the course of regularly conducted activity as a regular practice of Facebook and made at or near the time the information was transmitted by the Facebook user.

In addition to disputing admissibility under Federal Rules of Evidence 401, 402, 403, 404, 405, and 406, Farrad’s trial counsel argued that the photos, despite the custodian’s affidavit having been “done correctly under the federal rules,” were “hearsay within hearsay” and did not “authenticate who took the pictures, when the pictures were taken, by whom, at what time. All that the custodian could attest to, trial counsel emphasized, was that at some point these pictures were uploaded to what was allegedly Farrad’s Facebook account, the custodian could not testify as to who took the photos, when they were taken, where they were taken.

On June 15, 2015, the district court concluded that it had found no indication of a lack of trustworthiness and that the photos qualified as business records under Rules 803(6) and 902(11). It also determined that the photos were relevant.

The jury found Farrad guilty. He appealed his case to the 6th Circuit Court of Appeals.

ISSUES

Farrad raises seven arguments on appeal: (1) that there was insufficient evidence
introduced at trial to support his conviction; (2) that the Facebook photos should not have been admitted into evidence; (3) that Officers Hinkle and Garrison should not have been permitted to testify as experts; (4) that the district court should have granted Farrad’s motion for a new trial; (5) that Farrad did not in fact qualify as an armed career criminal under the ACCA; (6) that finding him to be an armed career criminal at sentencing violated his Fifth and Sixth Amendment rights; and (7) that the district court should have excluded the Facebook photos on Fourth Amendment grounds.

In this blog post, we focus on the issue of whether the Facebook photos were admissible at trial.

COURT’S ANALYSIS & CONCLUSIONS

Admissibility of Photos

The Court reasoned that like other evidence, photographs must be authenticated prior to being admitted into evidence. To satisfy this requirement, under federal evidence rule (FRE) 901, the person seeking to admit the evidence (proponent) must produce evidence proving that the item is what the proponent claims it is. This authentication rule requires only that the court admit evidence if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification.

The Court further reasoned that under FRE 902, some items – like, apparently Facebook posts – are self-authenticating. In other words, they require no extrinsic evidence of authenticity in order to be admitted. This category of self-authenticating evidence includes “certified domestic records of a regularly conducted activity”—that is, a business “record that meets the requirements of Rule 803(6)(A)–(C), so long as properly certified by a custodian or other qualified person  and so long as the evidence is subject to challenge by  the opposing party.

“The question, then, is the central one: the authentication of the photos,” said the Court. “They appeared to show Farrad, his tattoos, and (perhaps most probatively) distinctive features of Farrad’s apartment, as confirmed by police investigation . . . The district court was correct to admit them.”

Fourth Amendment Suppression

After addressing the admissibility issue, the Court went on to reject Farrad’s claim that admitting the Facebook photos violated the Fourth Amendment. The Court reasoned that while a search made by a private entity acting at the direction of law enforcement agents must comport with the Fourth Amendment, Farrad has pointed to no authority or rationale to suggest that a date of execution similarly binds a third party’s certification of its records for evidentiary purposes. “This argument lacks merit,” said the Court.

“The bottom line in this case—that Farrad has been sentenced to serve 188 months in prison because the Government found Facebook photos of him with what appears to be a gun—may well raise a lay reader’s hackles. There are likewise aspects of Farrad’s trial and
conviction—the date issue, Officer Garrison’s testimony—that are at least debatably troubling from a legal perspective. Nevertheless, we are not empowered to grant relief based on arguments not made or where errors were harmless.”

With that, the Sixth Circuit affirmed Farrad’s conviction and sentencing.

My opinion? Today’s defense attorney must be proficient in the admissibility of social media evidence. And the answers are fairly straightforward. Although the general rule is that hearsay is not admissible, and that social media evidence is hearsay, some hearsay evidence is admissible under the business record exception. Clearly, anything and everything that social media outlets like Facebook produces – from profiles to posts – are business records, arguably.

This is a classic example telling us to watch what we post on Facebook and other social media. Information is private until its not.

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.

Cell Site Location Information

Bellingham Defense Attorney, Cell-Site Location Information (CSLI), Constitutional Rights, Federal Crimes & Prosecutions, Fourth Amendment, Hobbs Act, Probable Cause, Robbery, Skagit County Criminal Defense, Stored Communications Act, Technology, Theft, Uncategorized, United States Supreme Court, Whatcom County Criminal Defense, , , , ,

Image result for cell site location information

In Carpenter v. United States, the United States Supreme Court held that the government generally needs a search warrant to collect troves of location data about the customers of cellphone companies.

BACKGROUND FACTS

In April 2011, police arrested four men suspected of committing a string of armed robberies at Radio Shack and T-Mobile stores in and around Detroit. One of the men confessed that the group had robbed nine different stores in Michigan and Ohio between December 2010 and March 2011, supported by a shifting ensemble of 15 other men who served as getaway drivers and lookouts. The robber who confessed to the crimes gave the FBI his own cellphone number and the numbers of other participants; the FBI then reviewed his call records to identify still more numbers that he had called around the time of the robberies.

In May and June 2011, the FBI applied for three federal court orders from magistrate judges to obtain “transactional records” from various wireless carriers for 16 different phone numbers. As part of those applications, the FBI recited that these records included “all subscriber information, toll records and call detail records including listed and unlisted numbers dialed or otherwise transmitted to and from [the] target telephones from December 1, 2010 to present,” as well as “cell site information for the target telephones at call origination and at call termination for incoming and outgoing calls.”

The FBI also stated that these records would “provide evidence that Timothy Carpenter and other known and unknown individuals” had violated the Hobbs Act, 18 U.S.C. § 1951. The magistrates granted the applications pursuant to the Stored Communications Act, under which the government may require the disclosure of certain telecommunications records when “specific and articulable facts show that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.”

The government later charged Carpenter with six counts of aiding and abetting robbery that affected interstate commerce, in violation of the Hobbs Act, and aiding and abetting the use or carriage of a firearm during a federal crime of violence. Before trial, Carpenter and Sanders moved to suppress the government’s cell-site evidence on Fourth Amendment grounds, arguing that the records could be seized only with a warrant supported by probable cause. The district court denied the motion.

At trial, seven accomplices testified that Carpenter organized most of the robberies and
often supplied the guns. They also testified that Carpenter and his half-brother Sanders had served as lookouts during the robberies. According to these witnesses, Carpenter typically waited in a stolen car across the street from the targeted store. At his signal, the robbers entered the store, brandished their guns, herded customers and employees to the back, and ordered the employees to fill the robbers’ bags with new smartphones. After each robbery, the team met nearby to dispose of the guns and getaway vehicle and to sell the stolen phones.

Also at trial, the Government admitted cell-site location information (CSLI) provided by Carpenter’s wireless carriers. The State’s expert witness created maps showing that Carpenter’s phone was within a half-mile to two miles of the location of each of the robberies around the time the robberies happened. Hess used MetroPCS call-detail records, for example, to show that Carpenter was within that proximity of a Detroit Radio Shack that was robbed around 10:35 a.m. on December 13, 2010. Specifically, MetroPCS records showed that at 10:24 a.m. Carpenter’s phone received a call that lasted about four minutes. At the start and end of the call, Carpenter’s phone drew its signal from MetroPCS tower 173, sectors 1 and 2, located southwest of the store and whose signals point northeast.

After the robbery, Carpenter placed an eight-minute call originating at tower 145, sector 3, located northeast of the store, its signal pointing southwest; when the call ended, Carpenter’s phone was receiving its signal from tower 164, sector 1, alongside Interstate 94, north of the Radio Shack. The expert witness provided similar analysis
concerning the locations of Carpenter’s phone at the time of a December 18, 2010 robbery in Detroit; a March 4, 2011 robbery in Warren, Ohio; and an April 5, 2011 robbery in Detroit. See Carpenter App’x at 12-15.

The jury convicted Carpenter on all of the Hobbs Act counts and convicted him on all but one of the gun counts. Carpenter’s convictions subjected him to four mandatory-minimum prison sentences of 25 years, each to be served consecutively, leaving him with a Sentencing Guidelines range of 1,395 to 1,428 months’ prison. The district court sentenced Carpenter to 1,395 months’ imprisonment. He appealed his convictions and sentences.

COURT’S ANALYSIS AND CONCLUSIONS

Justice Roberts delivered the majority opinion of the Supreme Court.

Preliminarily, the Court held that the Government’s acquisition of Carpenter’s cell-site records was a Fourth Amendment search. It reasoned that Fourth Amendment protects not only property interests but certain expectations of privacy as well.

“Thus, when an individual seeks to preserve something as private, and his expectation of privacy is one that society is prepared to recognize as reasonable, official intrusion into that sphere generally qualifies as a search and requires a warrant supported by probable cause,” said the Court.

“Tracking a person’s past movements through CSLI partakes of many of the qualities of GPS monitoring considered in Jones—it is detailed, encyclopedic, and effortlessly compiled.”

The Court further reasoned that cell phone location information is not truly “shared” as the term is normally understood. “First, cell phones and the services they provide are such a pervasive and insistent part of daily life, that carrying one is indispensable to participation in modern society,” said the Court. “Second, a cell phone logs a cell-site record by dint of its operation, without any affirmative act on the user’s part beyond powering up.”

Finally, the Court reasoned that the Government did not obtain a warrant supported by probable cause before acquiring Carpenter’s cell-site records. It acquired those records pursuant to a court order under the Stored Communications Act, which required the Government to show reasonable grounds for believing that the records were relevant and material to an ongoing investigation. “That showing falls well short of the probable cause required for a warrant,” said the Court. “Consequently, an order issued under §2703(d) is not a permissible mechanism for accessing historical cell-site records. Not all orders compelling the production of documents will require a showing of probable cause.”

Justice Ginsberg, Breyer, Sotomayor, and Kagan joined. Justice Kennedy filed a dissenting opinion, in which Justice Thomas and Alito joined. Justice Gorsuch also filed a dissenting opinion.

It’s imperative to hire competent defense counsel willing to argue motions to suppress information that the Government creatively – and sometimes illegally – obtains. Please contact my office if you, a friend or family member are arrested for crimes involving searches of cell phones and/or cell phone records.

Outrageous Police Misconduct

Bellingham Defense Attorney, Constitutional Rights, Police Misconduct, Rape, Sex Crimes, Sixth Amendment, Skagit County Criminal Defense, Technology, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

3 men get 20 years for robbery, abduction using fake Craigslist ad ...

In State v. Solomon, the WA Court of Appeals held that the trial court properly dismissed a charge of attempted rape of a child for outrageous police misconduct, where an officer, posing as a fictional 14-year-old girl sent the defendant nearly 100 messages laden with graphic, sexualized language and innuendo and persistently solicited the defendant to engage in a sexual encounter with the fictional minor, notwithstanding that he had rejected her solicitations seven times over the court of four days.

BACKGROUND FACTS

In this matter, a law enforcement officer anonymously published an advertisement on an online Craigslist classifieds platform reserved for those over the age of 18 and indicated that she was “a young female” seeking an individual interested in a casual sexual encounter. The defendant Mr. Solomon responded to the advertisement. Thereafter, the police officer assumed the guise of a fictional 14-year-old girl and sent Solomon nearly 100 messages laden with graphic, sexualized language and innuendo and persistently solicited him to engage in a sexual encounter with the fictional minor, notwithstanding that he had rejected her solicitations seven times over the course of four days.

Mr. Solomon was charged with one count of communication with a minor for immoral purposes, one count of commercial sex abuse of a minor, and one count of attempted rape of a child in the third degree.

Before trial, Solomon moved to dismiss the charges against him, arguing that the State had engaged in outrageous governmental misconduct in violation of his due process right to fundamental fairness.

The trial court herein found that the actions of the law enforcement officer constituted outrageous misconduct in violation of Solomon’s right to due process and dismissed the charges against him. The State appealed.

ISSUE

Whether the trial court abused its discretion in dismissing the case due to outrageous conduct of the investigating law enforcement officer.

COURT’S ANALYSIS & CONCLUSIONS

As precedent, the Court of Appeals applied the State v. Lively “totality of the circumstances evaluation,” which identifies five factors to be considered by a trial court deciding issues of whether law enforcement engaged outrageous conduct: (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.

Here, the Court of Appeals agreed with the trial court’s analysis that Solomon’s reluctance to commit the crime was manifested by his repeated—seven times—attempts to discontinue the conversation. Furthermore, the Court of Appeals agreed that the State had engaged in persistent solicitation of Solomon, given that the detective continued to solicit Mr. Solomon each of the seven times that he sought to withdraw and, in addition, sent the majority of the over 200 messages exchanged between the two parties.

Additionally, the Court of Appeals agreed with the trial court that the investigating law enforcement detective controlled the criminal conduct both by initiating the interaction between her and Solomon and by stringing him along over the course of the four days of exchanges.

“In this way, the court determined that the detective’s use of graphic and highly sexualized language amounted to a manipulation of Solomon that was repugnant to a sense of justice.”

“In ruling to dismiss the charges, the trial court did not adopt a view that no reasonable judge would take,” said the Court of Appeals. “Given the court’s finding that law enforcement had initiated and controlled the criminal activity, persistently solicited Solomon to commit the crimes so initiated, and acted in a manner (through the use of
language and otherwise) repugnant to the trial judge’s view of the community’s
sense of justice, the trial court’s determination was tenable.

“Accordingly, the trial court did not abuse its discretion by ordering that the charges against Solomon be dismissed. There was no error.”

With that, the Court of Appeals affirmed the dismissal of Mr. Solomon’s charges.

Please contact my office if you, a friend or loved one face criminal charges which are stemmed by questionably actions of law enforcement officers. It’s extremely important to hire competent defense counsel who willing to argue compelling motions to dismiss similar to defense counsel’s motion in this case.

Silver Platter Doctrine

Bellingham Defense Attorney, Child Molestation, Constitutional Rights, Evidence, felony, Forensics, Fourth Amendment, Marital Privilege, Rape, Search and Seizure, Search Warrant, Sex Crimes, Silver Platter Doctrine, Skagit County Criminal Defense, Spousal Privilege, Technology, voyeurism, Washington Court of Appeals, Washington State Patrol, Whatcom County Criminal Defense, , ,

Fear The Silver Platter - BL Clifton

In State v. Martinez, the WA Court of Appeals held that the defendant’s computer hard drive which Texas police seized in Texas pursuant to a search warrant was lawfully searched by the Washington State Patrol without a Washington search warrant under the silver platter doctrine.

BACKGROUND FACTS

Carlos Martinez began working at the Monroe Police Department in 1989. He worked in several capacities, including as a Drug Abuse Resistance Education (D.A.R.E.) program instructor. While working as a D.A.R.E. instructor, Martinez met A.K., who was in fifth grade at the time.

Beginning in 2001 or 2002, when A.K. was 13 or 14 years old, she began baby-sitting Martinez’s two young children.  A.K. also came to the Martinezes’ house when she was not baby-sitting. She would sometimes show up unannounced. She would help Martinez with chores and do her schoolwork at the house. At the time, Martinez was married to his then-wife Julie West.

Apparently, Martinez began touching A.K. in a sexual manner when she was 14. He also set up a video camera in the bathroom and digitally recorded her when she used the facilities.

Ms. West went on vacation. During that time, A.K. stayed at the family home. When Ms. West returned from vacation, she discovered a love note from A.K. to Martinez. She also discovered a video recording that Martinez had made of A.K. getting out of the shower and stored on the family computer. West confronted Martinez about the recording. He said he wanted to see if A.K. had cut herself on the kitchen knife as she had claimed. West claimed that when she asked Martinez why he still had the recording on the computer, he responded that it was “nice to look at.”

Not long after this, A.K. and her family moved from Monroe to Eastern Washington. Martinez and A.K. kept in touch. Martinez claims that in February 2007 they began a consensual sexual relationship when A.K. was 18 years old. In fall 2009, the Army recalled Martinez to active duty and stationed him in San Antonio, Texas. A.K. moved to Texas to be with him. They lived together for a short time.

After their relationship deteriorated in October or November 2011, Martinez gave A.K. the video recordings that he made of her in his bathroom in 2004. A.K. testified that Martinez told her he wanted to watch the tapes one last time and masturbate to them. She claimed he asked her to touch him as well. A short time later, A.K. contacted the Texas police to turn over the tapes. She also told the Texas police that she began an intimate relationship with Martinez some time before she was 16. Later, she contacted WSP.

The Texas police obtained a warrant to search Martinez’s home and seize his laptop computer and digital media storage devices. Then, a grand jury was convened in Texas to consider a possession of child pornography charge. But the grand jury refused to indict, returning a “no bill.” The case was dismissed. Texas police made a mirror image of Martinez’s computer hard drive and, at WSP’s request, sent it to WSP. Without obtaining a separate warrant, WSP searched this mirror image hard drive. Texas police also sent WSP two actual laptop computers and hard drives seized from Martinez. After obtaining a warrant, WSP searched those items.

The State initially charged Martinez with two counts of voyeurism, two counts of child molestation, one count of rape of a child in the third degree, and one count of possession of depictions of a minor engaged in sexually explicit conduct. Later, the State dismissed the molestation and rape charges. It tried Martinez on only one count of voyeurism and one count of possession of depictions of a minor engaged in sexually explicit conduct.

The jury found Martinez guilty on both counts. Because the voyeurism charge occurred outside the statute of limitations, the trial court dismissed that count and convicted him on only the possession count.

ISSUES

The Court of Appeals accepted review on the issues of (1) whether the warrantless search of Martinez’s computer hard drive was lawful when Texas police – and not WA law enforcement – searched the computer, and (2) whether spousal privilege applies to suppress the testimony of his ex-wife at trial.

SHORT ANSWER

The Court of Appeals held that (1) the silver platter doctrine allowed the Washington State Patrol to later examine the hard drive without a warrant, and (2) because Martinez acted
as a guardian to the victim, the spousal privilege does not apply here.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that Fourth Amendment guarantees the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.  If a government action intrudes upon an individual’s “reasonable expectation of privacy,” a search occurs under the Fourth Amendment. Furthermore, the Washington Constitution provides greater protection of a person’s privacy rights than does the Fourth Amendment. Article 1, section 7 of the Washington Constitution focuses on those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant.

Silver Platter Doctrine

Under the Silver Platter Doctrine, however, evidence lawfully obtained under the laws of another jurisdiction is admissible in Washington courts even if the manner the evidence was obtained would violate Washington law. Evidence is admissible under this doctrine when (1) the foreign jurisdiction lawfully obtained evidence and (2) the forum state’s officers did not act as agents or cooperate or assist the foreign jurisdiction.

“Martinez does not dispute that Texas lawfully obtained the hard drive,” reasoned the Court of Appeals. “And he does not challenge the trial court’s findings that Washington State Patrol (WSP) had no involvement in obtaining or serving the Texas warrant and that Texas police did not act as agents of WSP when they obtained or served the warrant.” Thus, under the silver platter doctrine, the evidence was admissible.

Next, the Court of Appeals rejected Martinez’ arguments that the silver platter doctrine does not apply here because the Texas officers did not conduct any search that would be unlawful in Washington. “The doctrine requires that the State show only two things: (1) the search was lawful in Texas and (2) the Washington officers did not act as agents for Texas or cooperate or assist Texas in any way,” said the Court. “Because the State proved this, the doctrine applies.”

Search Warrant

Next, Martinez argued that the warrant issued in Washington allowing the WSP to search his laptop computers and hard drives was overbroad. In response, the Court of Appeals reasoned that the Fourth Amendment provides 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 search warrant particularity requirement helps prevent general searches, the seizure of objects on the mistaken assumption that they fall within the issuing magistrate’s authorization, and the issuance of warrants on loose, vague, or doubtful bases of fact.

“When a search warrant authorizes a search for materials protected by the First Amendment, a greater degree of particularity is required, and we employ a more stringent test,” said the Court. “While the First Amendment presumptively protects obscene books and films, it does not protect child pornography involving actual minors.” Also, the Court of Appeals raised and dismissed Martinez’ arguments that the warrant was invalid for other reasons as well.

Spousal Privilege

The Court of Appeals addressed Martinez’ arguments that the trial court mistakenly admitted the testimony of his ex-wife regarding a conversation she shared with Mr. Martinez’ video of A.K. as being “nice to look at.” The Court reasoned that generally, a current or former spouse cannot be examined about confidential communications made during the marriage without the consent of the other spouse. It also explained that the marital privilege rule tries to encourage the free interchange of confidences between husband and wife that are necessary for mutual understanding and trust. “But in some situations the policies that underlie the right to invoke a testimonial privilege are outweighed by the suppression of truth that may result,” said the Court. “Thus, this spousal privilege does not apply in a criminal proceeding for a crime committed against a child for whom the spouse is a parent or guardian.”

The Court reasoned that here, West merely repeated statements by Martinez and did not comment about her belief in Martinez’s guilt. “We agree that these facts are sufficient for the jury to conclude that Martinez kept the recording for the purpose of sexual stimulation and that West’s testimony that Martinez said the recording was ‘nice to look at’ could not have materially affected the outcome of the trial,” said the Court.

Finally, the Court of Appeals raised and dismissed Martinez’ arguments that there was prosecutorial misconduct and ineffective assistance of counsel. “The Prosecutor’s general references were unlikely to have affected the jury’s verdict in light of the other incriminating evidence,” said the Court. Furthermore, Martinez does not show that his counsel’s failure to object to the Prosecutor’s case presentation was unreasonable and/or was not strategic.

With that, the Court of Appeals upheld Martinez’ conviction and sentence.

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.

DOL Shared Info With ICE

Bellingham Defense Attorney, Department of Licensing, Federal Crimes & Prosecutions, Immigration, Immigration & Customs Enforcement (ICE), Skagit County Criminal Defense, Technology, Whatcom County Criminal Defense, , ,

Image result for DOL immigrant drivers licenses

Informative article by reporters  and of the Seattle Times says that the Washington State Department of Licensing (DOL) will no longer release personal information to federal immigration authorities without a court order unless required by law. Apparently, the DOL gave photos and driver’s-license applications to Immigration and Customs Enforcement (ICE) — information that was potentially helpful in arresting and deporting people.

According to reporters Shapiro and Davila, the Seattle Times first reported the agency’s practice Thursday, revealing that DOL was handing over personal information to federal authorities 20 to 30 times a month. The policy was surprising to many, given that Washington is among a minority of states to allow undocumented immigrants to get driver’s licenses.

 In another major shift announced in a news release Monday, DOL said it would use emergency rule-making to end its practice of collecting “information that isn’t mandated and could be misused,” specifically information on license applications about where a person was born.

The release did not say whether the application would continue to note the IDs a person used to obtain a license. Those IDs could include a foreign passport or other documents that might signal someone does not have legal status.

The agency also has accepted the resignation of Deputy Director Jeff DeVere. DeVere oversaw compliance with an executive order that Gov. Jay Inslee signed last year, designed to prevent state employees from helping federal officials enforce immigration laws — an attempt to thwart President Donald Trump’s approach to immigration enforcement.

Until questioned by The Seattle Times last week, Inslee’s office didn’t know the extent of DOL’s cooperation with the feds, according to his spokeswoman, Jaime Smith.

The response to the licensing department’s policy of cooperating with ICE was swift and furious. The governor ordered DOL to direct future requests from federal immigration officers to his general counsel. State lawmakers pledged to file a bill to ensure the practice was stopped.

Monday’s announcement from the department included an apology, and made clear that the offices of the governor and Attorney General Bob Ferguson had a hand in the changes.

“We support the Executive Order, but failed to meet the Governor’s intent regarding the protection of this type of information,” DOL Director Pat Kohler said in the news release. “We are sorry that our work did not align with our state’s values.”

She went on to say DOL “did not clearly communicate” the information federal law enforcement was requesting nor seek clarification with the governor’s office and the Legislature about how to handle those requests.

The agency also announced it would review its processes and computer systems with the governor’s and attorney general’s offices; hire a community liaison to ensure DOL practices “meet the needs of all Washington residents”; start a new hotline to answer questions about the issue; and educate agency staff on all policy and procedural changes and the governor’s executive order.

“The recent revelations about our state Department of Licensing’s failure to safeguard certain information from federal immigration officials has shaken and angered many communities” Inslee said in statement Monday. “It has angered me. I understand what’s at stake in getting this right, and the ramifications of what it means when we get it wrong,” the governor said. “I expect every employee in every one of my state agencies to understand this as well.”

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.

Driverless Cars for Crime?

Bellingham Defense Attorney, Skagit County Criminal Defense, Technology, Uncategorized, Vehicular Assault, Vehicular Homicide, Whatcom County Criminal Defense, , ,

Image result for driverless cars crime

Informative article by Tim Johnson of McClatchy DC Bureau reports that driverless cars could potentially be used by criminals, hackers and terrorists who want to employ them for mayhem and criminal purposes.

“Self-driving cars may enable new crimes that we can’t even imagine today,” said Patrick Lin, director of the Ethics + Emerging Sciences Group at California Polytechnic University.

Johnson reports that the manufacture of self-driving cars is already underway among major automakers and Silicon Valley tech giants, and a handful of current models allow limited hands-free driving and even park themselves. Before long, experts say, totally autonomous vehicles will hit the roads, starting with taxis and fleet delivery vehicles.

The clearly visible potential danger, Lin and others say, focuses on vulnerability to hackers who could turn driverless autos into vehicles for mayhem if not into weapons themselves.

CAN ELECTRONIC CARS BE “TAMPER-PROOF?”

Lots of questions remain over whether the electronic systems of self-driving vehicles can be made tamperproof, and if humans aboard will be able to override if systems go haywire.

Some engineers say glitches are common and adoption is likely to be gradual.

“Most people don’t understand how easy it is to hack into a driverless car, and then basically steer it off course,” said Dr. Mary Cummings, a former Navy fighter pilot who heads the Humans and Autonomy Laboratory at Duke University’s Pratt School of Engineering.

Cummings said she views hackers as a greater threat than criminals or terrorists when it comes to autonomous vehicles.

“There’s no way I’d put my kid in a driverless car right now,” Cummings said.

THE FBI’s CONCERNS

Johnson reports that the FBI, in an unclassified report obtained by The Guardian in 2014, voiced concerned about how “game changing” autonomous cars may become for criminals, hackers and terrorists, turning the vehicles into more potentially lethal weapons than they are today. An FBI spokesperson did not immediately respond to a query about the impact of autonomous cars on law enforcement.

“The FBI is already worried about robo-getaway drivers, which frees up a suspect to shoot back,” Lin said. “Criminals might be able to make a better escape, if a road full of self-driving cars will always move out of the way when you threaten a collision.”

Criminals might commandeer self-driving vehicles and trap passengers inside until they pay a ransom, Lin said, or use camera-equipped models to case robbery locations over longer periods since the cars don’t need to eat or sleep. They can ditch accomplice drivers, who often have loose lips, as they conduct crimes.

Society still has to decide how much invasive technology it will permit in self-driving cars in the name of safety, experts said. Should they contain sensors to detect explosives or narcotics to halt terrorism and crime? Cameras to record what happens inside the vehicles?

“If law enforcement pulls over an empty self-driving car that’s carrying contraband, they can likely track down the user,” Lin said. “Cars aren’t as disposable as burner phones.”

HACKERS & TERRORISTS

Johnson reports that fears that hackers or terrorists could commandeer vehicles captivate the common imagination, fueled by Hollywood. Last year’s hit “The Fate of the Furious,” which tallied $1.1 billion in box office earnings, portrayed elite hackers guiding hundreds of cars speeding down New York’s Seventh Avenue, turning them into battering rams.

A less cinematic scenario, experts say, is that terrorists might use only one or two autonomous vehicles in an attack, perhaps blocking a tunnel leading into a metropolis to divert attention from a pending attack elsewhere in the city.

Terrorists might seek to program autonomous vehicles to carry out attacks far in the future, with explosives or as a weapon to plow into crowds.

“Can I instruct a car to do something a year in advance? What if I’ve been dead for most of that year?” asked Martin C. Libicki, an information technology and national security expert.

Such fears tend to eclipse consideration of how self-driving vehicles are bound to lead to a steady, dramatic drop in traffic fatalities. In 2016, 37,461 people died in traffic accidents.

“All of these things are evaluated through a political filter. Nobody writes headlines about the person who didn’t die in an auto accident. Everybody will write headlines about the person who died because of a self-driving car,” Libicki said.

The vast majority of fatalities are caused by drivers who are distracted, drunk, not wearing seat belts, sleepy or otherwise not paying full attention.

“Ninety-four percent of all crashes have an element of human error. We’re talking about enormously significant numbers,” said David Strickland, counsel for the Self-Driving Coalition for Safer Streets, a group representing companies like Ford, Uber, Lyft and Volvo developing autonomous vehicles.

“This is going to sound cold hearted,” began Arthur Rizer, director of criminal justice at R Street Institute, a conservative think tank in Washington, but the terrorist danger from autonomous vehicles “is minute compared to the lives that we will save just from reducing traffic accidents.”

Rizer said police departments across the country might face a drop in income as traffic fines and tickets decrease. Self-driving vehicles will be programmed to obey traffic laws. Traffic tickets cost drivers an average of $150.

“Revenue will plummet. Also, court revenues will plummet because courts make a lot of their money off of fees,” said Rizer, a former police officer and Justice Department prosecutor. Rizer said reducing the focus of police on traffic violations will certainly be part of a changing landscape for police forces brought about by autonomous vehicles. But he said police, too, will be freed somewhat from traffic patrols.

Yet to be seen is whether law enforcement will be empowered with remote “kill switches” for officers to use if they deem a self-driving vehicle to be operating suspiciously.

Lin concurred that as resources shift, police tactics will also need to shift.

“The police will no longer have a pretext for stopping a car if the vehicle never speeds, never drives recklessly, and so on,” Lin said. “Resources for highway patrols could be shifted to more targeted operations, if fewer traffic cops are needed.”

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.

Prosecutors Use Body Camera Evidence

Bellingham Defense Attorney, Body camera, Constitutional Rights, Evidence, Fourth Amendment, law enforcement, police, Police Misconduct, Skagit County Criminal Defense, Technology, Whatcom County Criminal Defense, , ,

Image result for police body camera evidence

Interesting feature from  a correspondent for NPR who covers law enforcement and privacy issues. In this feature, he discusses how police body cameras are becoming key tools for prosecutors.

This year, police body cameras made the transition from experimental tech to standard equipment. Sales exploded after the 2014 Ferguson protests as police departments scrambled to refute claims of abuse. Now the cameras have become routine, but they’re not making a significant dent in the number of people shot and killed by police.

In this feauture from Weekend Edition Sunday, Kaste described how body cameras have become a standard piece of equipment for the criminal justice system.

“Prosecutors now use them far more often than – for police accountability, prosecutors are using it to make cases against defendants, against members of the public who are charged with crimes,” said Kaste. He also described how a survey last year conducted by George Mason University showed that prosecutors were far more likely to have used video to prosecute a member of the public than to use the video to prosecute a police officer.

“What we have really is technology that quickly became sort of required for prosecution in general,” said Mr. Kaste. “Juries now expect it, and the police in the field kind of feel the pressure to get video of themselves finding evidence.”

Kaste answered questions on whether citizens can use body camera video to support their own claims of police abuse.

“There’s no national standard on that, and that’s becoming more and more of a bone of contention,” he said. “In a lot of places, it’s considered a public record and you can request it. But a lot of cases, you don’t get to see the video because the case is under investigation, and that kind of puts it in limbo. Or, in places like California, Police departments have cited officer privacy. They kind of almost view it as a personnel record or something, and it takes a lot to get the video out,” said Mr. Kaste.

” . . . it’s gotten to the point where at least one academic I talked to this year said we should rethink the whole system and start giving the video to a third party to control, not to the police department.”

My opinion? Ultimately body-worn cameras (BWC’s) are a good thing. They provide non-objective evidence of what really happened instead of forcing us to rely on people’s stories. However, I agree with Mr. Kaste in his argument that obtaining the video is oftentimes difficult. It makes no sense that BWC evidence is released by the very same police departments that it’s made to scrutinize. This is the fox guarding the hen house. Consequently, attorneys must be incredibly careful, diligent and consistent on arguing public disclosure requests and motions to obtain pretrial discovery of this evidence.

Contact my office if you, a friend or family member faces criminal charges involving BWC evidence. Although it might work in a defendant’s favor, the evidence can be suppressed if it’s unfairly prejudicial against defendants under the rules of evidence.