Category Archives: Terry Stop

State v. King: Out-Of-Jurisdiction Police Cannot Arrest Unless Emergency Exists

Constitutional Rights, Due Process, law enforcement, misdemeanor, police, Probable Cause, Reckless Driving, Terry Stop, Washington State Traffic Commission, Washington Supreme Court, , ,

Can Police make traffic stops outside Jurisdiction - YouTube

Excellent opinion.

In State v. King, the WA Supreme Court held that out-of-jurisdiction police cannot arrest unless an emergency exists.

Tyler King was riding his motorcycle southbound on Interstate 5 north of Vancouver city limits when he was stopped and issued a criminal citation for Reckless Driving by Vancouver police officer Jeff Starks. King had stood up on the pegs of his motorcycle, looked at the vehicle he was approaching, and  accelerated to pass the vehicle.

King and Starks both testified at the trial, offering different interpretations of the facts. Starks offered opinion testimony that King’s driving had been reckless, which King’s attorney did not object to at trial but then raised on appeal. King also challenged that the officer was outside of his jurisdiction without an interlocal agreement and without satisfying the statutory emergency exception.

The Supreme Court held that Officer Starks did not have jurisdiction to issue the criminal citation. They reasoned that Stark’s  interpretation of King’s actions would not have constituted “an emergency involving an immediate threat to human life or property.”

King did not nearly hit another car, nor run a light, nor weave across traffic lanes. He did not pop a wheelie, cut off another car, nor, for that matter, drive in reverse along the shoulder. At most, King glared at the driver of the large truck, stood on his foot pegs for three to five seconds, and accelerated at high speed past the truck.

As aforementioned, Starks could not verify that King accelerated away at what he thought was 100 m.p.h. Even so, the officer testified King slowed down as he approached other traffic and pulled over immediately when Starks signaled him to do so.

The majority concludes that the trial court was wrong to simply take the definition of reckless driving and assume that it “automatically fit within the emergency exception.” The majority also suggests that the Court of Appeals erred in concluding that the opinion testimony issue was foreclosed by the lack of an objection at trial.

My opinion?  Again, good decision.  Reckless Driving does not always involve racing, road rage, emergency situations or life-threatening behavior.  Let’s be frank: some people simply enjoy horsing around while driving!

The Supremes rightfully disagreed with the trial court and saw the situation for what it was: people slightly agitated with each other’s driving, a brief increase in speed, and it’s over.  Nobody goes crazy, and/or gets mad, violent or injured.  Period.  It’d be a miscarriage of justice to allow out-of-jurisdiction officers to arrest people based on those circumstances.

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.

9th Circuit’s Search & Seizure Outline

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

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

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

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

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

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

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

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

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

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

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

Can I Refuse A Blood Test? - Welch and Avery

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

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

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

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

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

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

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

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

X52 Program Leads to Increased DUI Patrols and Arrests

Bellingham, Bellingham Defense Attorney, Constitutional Rights, Department of Licensing, Due Process, DUI, law enforcement, misdemeanor, police, Privacy, Reckless Driving, Search and Seizure, Terry Stop, Traffic Infractions, Washington State Patrol, Washington State Traffic Commission, Whatcom County Criminal Defense, , ,

2018 DRUNK-DRIVING AWARENESS ENFORCEMENT CAMPAIGN | DMV Assistant

This past Labor Day Weekend, the Washington State Patrol made 296 arrests for suspicion of DUI.  That’s slightly higher than the 292 arrests WSP made over the same weekend in 2008.  In a recent report released by the WSP, there were 44 calls from concerned motorists which led to 20 arrests for suspicion of DUI.  The increased arrests — and inevitable prosecutions — are directly attributed to Washington State Patrol’s (WSP)  implementation of the X52 anti-DUI campaign.

X52 stands for extra patrols 52 weeks per year. The goal of the X52 program is to reduce speeding and DUI-related traffic fatalities and serious injuries on Washington’s roads.

Under the program, Washington Traffic Safety Commission released $450,000 worth of grants to local law enforcement agencies to help them provide additional impaired driving and speed patrols every week of the year.  These sustained enforcement patrols specifically target speed and DUI offenders, as well as look for other traffic violations. The program is being administered statewide through a network of community traffic safety task forces.

The X52 program also includes initiatives designed to let the public know that these extra patrols are happening in Washington every week. $450,000 is budgeted for paid radio advertising and alternative messaging. Earned media efforts will be spearheaded by community traffic safety task forces.

My opinion?  Clearly, the WSP is aggressively campaigning the X52 program.  I foresee even greater DUI patrol this holiday season.

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

 

State v. Eriksen: Tribal Officers Can Pursue Suspects Off the Reservation

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

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

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

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

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

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

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

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

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

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

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

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

Two DUI arrests made in southern Arizona following Labor Day weekend

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

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

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

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

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

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

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

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

Bellingham Police Department Launches Anti-Crime Team

911 Call, Bellingham, Bellingham Defense Attorney, Bench Warrant, law enforcement, Privacy, Terry Stop, Whatcom County Criminal Defense, , ,

Exclusive: A look at the NYPD's anti-crime unit in the subway | PIX11

Bellingham’s finest created a five-person “Anti-Crime Team (ACT) dedicated to warrant arrests, stakeouts, sting operations, and plainclothes detective work.  The team’s goal is to reduce  — and follow up on — the number of 911 calls the police department receives.  “Our purpose is basically to do what patrol doesn’t have time to do,” Sgt. Keith Johnson said.  “If we can spend some quality time and solve problems rather than deal with them every time they flare up, then the community benefits and patrol benefits.”

The Anti-Crime Team (ACT) appears to be a proactive sub-unit of the Bellingham Police Department.  In short, ACT provides additional investigations/policing of our neighborhoods.  These activities include serving bench warrants, police interviews, stakeouts, etc.  In other words, ACT is involved in community caretaking.

Know this, however: “community caretaking” is, in reality, a legal term; and establishes an exception to rule that officers MUST have a warrant to arrest citizens.  ACT’s proactive approach could create a risk of abuse to the community caretaking exception of the warrant requirement.  Under WA law, and in light of the risk of abuse, courts must be cautious in applying the community caretaking exception to the warrant requirement.

n order to avoid abuse of the exception, community caretaking searches/seizures must be strictly divorced from criminal investigations.  Also, the community caretaking function exception may not be used as a pretext for a criminal investigation.

Given ACT’s proactive approach to neighborhood policing as a “community caretaking” function, we could see an increase in unlawful arrests.

The solution?  Be aware of your Constitutional rights when approached/questioned by police officers.  Be cooperative.  Avoid making unnecessary statements.  Ask for an attorney.

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.

Class Action Lawsuit Challenges “Camera Tickets”

Bellingham, Due Process, law enforcement, Legislation, Red Light Cameras, Terry Stop, Traffic Infractions, , ,
Rosen Law Firm in Seattle is currently researching a class action law suit against many Washington cities that operate red light and speed zone cameras in Washington.  If you have paid for a photo enforcement ticket in Washington, they may be interested in representing you and trying to get your money back.
Apparently, the firm is willing to do so at no cost to you unless they win, and then only a percentage of the amount they recover for you. If you are interested and meet the eligibility requirements of 1) having received a photo enforcement ticket; 2) in Washington; and 3) you paid the ticket, please contact the Rosen Law Firm:

My opinion?  I wish success upon this class action!  Red light camera tickets seem like an easy way for cities and counties to fill their coffers.  And it is working.  For example, the city of Balitmore shortened the yellow light on just one intersection and collected $1000’s in traffic light camera violation fines until one alert victim took them to court.   Additionally, I’ve heard complaints (hearsay, I know) that yellow lights times are SHORTENED if a camera is observing the intersection; and that the cameras actually don’t decrease people’s speed.

Good luck, RosenLaw Firm.  Give ’em Hell!   🙂

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

State v. Garvin: WA Supremes Held “Squeeze Search” Unlawful

Constitutional Rights, Drug Offenses, felony, law enforcement, marijuana, misdemeanor, police, Privacy, Probable Cause, Search and Seizure, Terry Stop, Traffic Infractions, Washington Supreme Court, , ,

Know Your Rights: Stop-and-Frisk | ACLU of DC

In State v. Garvin, the Court held that police officers cannot “squeeze” a defendant’s pockets to determine the nature of objects in the pocket.

An officer pulled Anthony Garvin over for a traffic infraction. When he noticed a knife on the seat next to Garvin, the officer ordered Garvin out of the car and conducted a search for additional weapons. In the process he discovered a baggie of methamphetamine. At trial the officer testified, “We don’t really pat anymore. It’s more of a squeeze search.”

Garvin moved to suppress the evidence seized, and the trial court denied the motion. He was convicted of possession of a controlled substance, and Court of Appeals upheld the conviction.  The WA Supreme Court granted review.

The court reasoned that the officer was not allowed to manipulate objects within the clothing, and his “squeeze method” exceeded the scope of a valid frisk under the “stop and frisk” rule articulated in Terry v. Ohio, 392 U.S. 1 (1968).  The court added, “Without probable cause and a warrant, an officer is limited in what he can do.  He cannot arrest a suspect, he cannot conduct a broad search.”

My opinion?  Yaaaay!!

Many clients get arrested because police officers obtain evidence unlawfully.  It’s an outrage!  This case is beautiful.  I can’t wait to argue a Garvin motion in my future attempts to suppress unlawfully obtained evidence.   🙂

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.

Study: Drug, Driving Charges Sap Nation’s Courts

Court Fines, Department of Licensing, Drug Offenses, Due Process, DUI, law enforcement, marijuana, misdemeanor, police, Probable Cause, Reckless Driving, Search and Seizure, Studies, Terry Stop, Traffic Infractions, , ,

Stop jailing those accused of low-level, non violent crimes before trial | TheHill

According to a Seattle Times article, low-level drug and driving charges are a financial burden for misdemeanor courts.

My opinion?  As a former public defender (and proud of it), I was dismayed when defendants were prosecuted and jailed on Driving While License Suspended charges.  Indeed, defending these kinds of cases exposed me to some ugly truths about the criminal justice system.

Here’s a typical situation: “Speeder” gets pulled over for speeding.  Speeder can’t afford to pay the ticket.  They miss their court date.  Court gives them a “Failure to Appear” for missing said court date.  The Department of Licensing catches wind.  Speeder’s license gets suspended.   He is now Speeder-Turned-Suspended Licensee (STSL).

Eventually STSL get pulled over – and possibly arrested – on the suspended license.  If STSL is lucky, police officer won’t (1) investigate STSL for DUI, and/or (2) search STSL’s car following the arrest.  If unlucky, STSL might have had a couple of drinks before being pulled over.  They get investigated for DUI.  Or STSL has contraband tucked away in the glove compartment that gets discovered on the search.

All of the sudden, “Speeder” is now a criminal.

The grinding wheels of justice.  Steel jaws gnashing away at people’s rights.  Police using a suspended license as probable cause to arrest you and search your car.  Unbelievable.

Now, more than ever, change is necessary.  King County has implemented a program which simultaneously circumvents the criminal justice system and allows people get their licenses back.  Legal fees are waived if people successfully complete it.  The program is a success.  And it costs less than prosecuting/jailing people.

There’s more.  In 2007, the study’s authors found, 11,553 misdemeanor marijuana cases were filed.  Of those, 3,638 convictions were made, which resulted in about $7.6 million in direct costs to the state.

Again, unbelievable.  Taxpayers subsidize these enormous costs.  However, most people believe small-time drug cases should NOT be prosecuted.  Remember Seattle Initiative I-75?  The measure – which passed successfully in 2003 – directed police officers and prosecutors to treat the personal use of marijuana by adults as the city’s lowest law enforcement priority.

It’s time our court system caught up with the will of the people.

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.