Category Archives: Uncategorized

“Warrant Quash Day” Hosted At Whatcom District Court

Uncategorized, , , , ,

Warrant Resolution Day Offers Chance To Quash Warrants Without Arrest

Whatcom County District Court will hold a Warrant Quash Day on Wednesday, December 4. The purpose of this action is to allow defendants to quash outstanding warrants for their arrest for failure to appear for a District Court hearing in Whatcom County. This is a voluntary event, and individuals are encouraged to take advantage of this opportunity to resolve their outstanding warrants.

Having an outstanding warrant means that a person could be arrested at any time they come in contact with law enforcement. The quash event offers two benefits: one to the person with the warrant and the other to the community at large.

A warrant quash day is an opportunity to for defendants with outstanding warrants for their arrest for failure to appear for a District Court hearing in Whatcom County and remove their warrant. Having an outstanding warrant means that person can be arrested at any time.

On the Warrant Quash Day, the defendant’s case will be called, the warrant will be quashed and a next court date to return will be given. By quashing a warrant, a defendant’s case can get back on track. They will not need to worry about further incarceration for the same warrant.

Those looking to quash their warrants should arrive at District Court Clerk’s Office on the fourth floor of the County Courthouse at 311 Grand Ave. between 10 a.m. and noon Wednesday, Dec. 4.

The quash day is only for warrants issued by the Whatcom County District Court. There has been one other warrant quash day this year. The amount of quash days in 2025 will depend on how many people get their warrants quashed this week.

Eligible warrants include misdemeanor and/or gross misdemeanor offenses. People with warrants connected to charges such as DUIs, trespassing and protection order violations can have the warrant quashed. The individual will be arraigned and have new court dates set. Ineligible offenses include felonies, which are typically charged from Whatcom Superior Court.

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

Can Police Use Deception To Extract Confessions?

Bellingham Defense Attorney, Interrogation, Mount Vernon Criminal Defense Attorney, police, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , ,

Apparently, the answer is “Yes.”

There’s an excellent article in NPR from journalist Meg Anderson saying that advocates are pushing for laws that effectively ban police from lying to suspects during interrogations. In every state, police officers are allowed to lie to adults during an interrogation. The hope, in many cases, is that they’ll get a person to confess to committing a crime.

BACKGROUND

When it comes to laws enforced by the justice system, we have an expectation of honesty, integrity, and transparency. However, police officers are legally empowered to use deception and other types of lies during interrogations.

This ability originates from the 1969 Supreme Court case Frazier v. Cupp, which ruled specific police lies were permissible. The case involved officers falsely telling the suspect that his associate had already confessed, leading the suspect to also confess. The Court said this lie alone was not enough to make the confession involuntary or violate his Constitutional rights.

Since then, no laws have established clear boundaries around what interrogation lies are appropriate versus unethical. Generally, police are legally empowered to:

  • Verbally make false statements about evidence
  • Momentarily lie about offense seriousness or punishment
  • Make unfulfillable promises of leniency for waiving rights
  • Lie about what others told them or what evidence reveals
  • Threaten charges against or harsher punishment for family members

Defense lawyers and civil rights advocates have raised increasing concerns about the prevalence of deception. The argument is that lying puts innocent people at risk of false confessions. However, prominent judges have argued that only coerced confessions through abuse or misconduct can be thrown out – not those involving lies alone. The ethics remain hotly debated.

“Police are trained around the country in all 50 states to use deception during interrogation, to lie both about the evidence against a suspect and to lie about the consequences of confessing in order to make it seem not so bad if you just say that you did these things.” ~Attorney Laura Niridier

Unfortunately, deceptive tactics can also draw false confessions. According to the Innocence Project, nearly a third of DNA exonerations from 1989 to 2020 involved a false confession. Legal experts say the deception bans passed in recent years fail to protect other vulnerable groups: young adults, people with intellectual disabilities, even just people who are naturally compliant.

A GROWING NUMBER OF STATES ARE PASSING LAWS THAT STOP DECEPTIVE TACTICS AT  POLICE INTERROGATIONS

Ten states have passed laws in recent years effectively banning police from lying to juveniles during interrogations, starting with Illinois in 2021. And some legal advocates are pushing for a deception ban that would apply to everyone, not just kids. Deception is a powerful law enforcement tool in eliciting confessions, says wrongful convictions attorney Laura Nirider.

WASHINGTON PROPOSED LEGISLATION TO STOP DECEPTIVE INTERROGATIONS

In Washington state, Democratic lawmakers want to set a higher bar: A bill that would make incriminating statements made in police custody – by adults or children – largely inadmissible in court if obtained using deception. State Rep. Strom Peterson has introduced the bill twice. However, the legislation hasn’t gone anywhere.

The Washington Association of Sheriffs and Police Chiefs said in a statement that it opposes such a measure, because banning deception would take away a tactic that yields “many more true confessions” than false ones.

“Criminals often conduct elaborate stories to conceal their crimes . . . Sometimes the use of deception is required to locate the truth both to convict and to exonerate people. Such deceptions include telling a person that abuse was discovered during a routine medical exam rather than reported by a family member.” ~James McMahan, Director of the Washington Association of Sheriffs and Police Chiefs

GIVING POLICE NEW TOOLS

Those against deception bans see them as an attack on police, says Mark Fallon, a consultant on interrogation practices and former federal agent. In fact, he says, it’s the opposite. There’s another way for police to question people, Fallon says, that relies on building rapport and asking open-ended questions, and where the primary goal is information, rather than a confession.

That technique is used in other countries, including much of Europe. In England, France, Germany, Australia, Japan and elsewhere, for instance, the police are generally not allowed to deceive suspects.

My opinion? Honestly, I’ve never seen a circumstance where a police officer intentionally lied or deceived a suspect during an interrogation in order to illicit a confession. I simply don’t see this technique happening in the police agencies I work with.

Nevertheless, it appears other law enforcement agencies outside of Whatcom and Skagit County use this questionable technique. Clearly, the problem with deceptive interrogation techniques is that it creates more deception. If discovered, the defendant’s confession is clearly corrupted by the lies used to bring it. Studies show that telling little fibs leads down a slippery slope to bigger lies. Our brains adapt to escalating dishonesty, which makes deceit easier. In those cases, a Motion to Suppress the corrupted/false interrogation may be appropriate.

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.

Can Artificial Intelligence Lead to Wrongful Convictions?

Artificial Intelligence, Bellingham Defense Attorney, Evidence, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Technology, Uncategorized, Whatcom County Criminal Defense, , , , ,

Image: (Kathleen Crosby/Innocence Project)

Photo Courtesy of Kathleen Crosby & The Innocence Project

The Innocence Project published a very insightful article describing how AI-based surveillance systems lack independent verification, empirical testing, and error rate data. These shortcomings lead to wrongful arrests and potentially wrongful convictions. More worrisome, there’s a disturbing readiness among some system actors, especially prosecutors, to accept AI-based evidence at face value. As a result, the eager acceptance of AI-based evidence mirrors the same flawed embrace of misapplied forensic science, which has contributed to numerous wrongful convictions.

BACKGROUND

The use of unreliable forensic science has been identified as a contributing factor in nearly 30% of all 3,500+ exonerations nationwide. Take bite mark analysis, for example. The practice was widely used in criminal trials in the 1970s and 1980s but is poorly validated, does not adhere to scientific standards, lacks established standards for analysis and known error rates, and relies on presumptive tests. It has since been discredited as unreliable and inadmissible in criminal trials due to its shortcomings. Still, there have been at least 24 known wrongful convictions based on this unvalidated science in the modern era.

ADMITTING SCIENCE-BASED EVIDENCE 

The 1923 Frye v. United States decision introduced the “general acceptance” standard for admissibility at trial. In short, the scientific technique must have expert recognition, reliability, and relevance in the scientific community to be “generally accepted” as evidence in court. Some state courts still apply this standard today. Also, the Daubert v. Merrell Dow Pharmaceuticals Inc. decision shifted the focus to evaluating the relevance and reliability of expert testimony to determine whether it is admissible in court.

In applying the Daubert standard, a court considers five factors to determine whether the expert’s methodology is valid:

  • Whether the technique or theory in question can be, and has been, tested;
  • Whether it has been subjected to publication and peer review;
  • Its known or potential error rate;
  • The existence and maintenance of standards controlling its operation; and
  • Whether it has attracted widespread acceptance within a relevant scientific community.

Under Daubert and Frye, much AI technology, as currently deployed, doesn’t meet the standard for admissibility. ShotSpotter, for example, is known to alert for non-gunfire sounds and often sends police to locations where they find no evidence that gunfire even occurred. It can also “significantly” mislocate incidents by as much as one mile. It, therefore, should not be admissible in court.

Similarly,  facial recognition technology’s susceptibility to subjective human decisions raises serious concerns about the technology’s admissibility in court. Such decisions, which empirical testing doesn’t account for, can compromise the technology’s accuracy and reliability. Research has already shown, for instance, that many facial recognition algorithms are less accurate for women and people of color, because they were developed using photo databases that disproportionately include white men.

My opinion? If we are to prevent a repeat of the injustices we’ve seen in the past from the use of flawed and untested forensic science, we must tighten up the system. Too many investigative and surveillance technologies remain unregulated in the United States.

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.

Leave Your Neighbor’s Campaign Sign ALONE

Bellingham Defense Attorney, Malicious Mischief, Mount Vernon Criminal Defense Attorney, Political Signs, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , , ,

Tis the season: Vandalism and theft of political signs back again | Local News | latrobebulletinnews.com

The 2024 general election is less than a month away.  By now, you’ve probably seen at least a few yard signs endorsing someone’s preferred candidate, and even more will likely pop up as the election approaches. Political polarization is peaking online and in our communities.

But what if someone sees a yard sign they disagree with and takes it down? Is that protected political expression or destruction of someone else’s property?

While some might view taking down or defacing yard signs as an act of civil discourse or political activism, the law is clear on the issue: Theft or vandalism of political signs is a crime in all 50 states. Trespassing on private property is also a punishable offense in every state.

WASHINGTON’S LAW REGARDING THE THEFT OR DEFACING OF POLITICAL YARD SIGNS

State law addresses the exact topic in RCW 29A.84.040. It is a misdemeanor to “[remove] or [defaces] lawfully placed political advertising” without permission. In Washington, misdemeanors can be punished by up to 90 days in prison or a fine of up to $1,000, and in some cases can carry both a sentence and a fine. The statute includes yard signs – the law mentions them specifically – and each yard sign taken down is considered a separate violation.

Additionally, violators face Criminal Trespass and/or Malicious Mischief charges, which are also misdemeanors. Criminal Trespass refers to intentionally entering someone else’s private property without their permission. Malicious Mischief refers to Knowingly and maliciously causing physical damage to the property of another.

POLITICAL YARD SIGNS ARE FIRST AMENDMENT FREE SPEECH

The right of a property owner to post signs representing their political beliefs is one that is rooted in the First Amendment, which protects every citizen’s right to freedom of expression. Generally, yard signs have proven to be an easy and inexpensive way to participate in public debate, and the courts have recognized the protected form of expression as such.

It is believed that the first political yard sign in American politics dates back to John Quincy Adams’ presidential run in 1824. The current wire-framed version of political lawn signs originated in the 1960s. However, the concept of political signage can be traced all the way back to Ancient Rome.

Increased theft and vandalism of political signs has prompted some property owners to attempt to catch trespassers by installing cameras such as security cameras, smart video doorbells, or trail cams. The footage is being used to shame people online and also helps law enforcement track down offenders.

Stealing or defacing political lawn signs is a terribly embarassing criminal conviction. Please contact my office if you, a friend or family member are charged.  Hiring an effective and competent defense attorney is the first and best step toward justice.

Expert Witness’s Misleading Statements at DUI Trial Were “Harmless Error.”

Bellingham Defense Attorney, DUI, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Uncategorized, , , , ,

Harmless Error Rule | Legal Terms

In State v. Wasuge, No. 85286-8-I (August 12, 2024)., the WA Court of Appeals (COA) held the trial court mistakenly admitted expert testimony in a DUI case that the general population metabolizes alcohol at a rate of .01 to .02 percent per hour. Also, the trial court erred when it admitted expert testimony that the American Medical Association (AMA) recommends that state legislatures lower the “per se” blood alcohol concentration (BAC) limit for driving under the influence (DUI) offenses from .08 to .05 percent. Despite the trial court’s errors, the COA nevertheless upheld Mr. Wasuge’s convictions because the errors were harmless.

FACTUAL BACKGROUND

On the morning of October 12, 2022, a 911 caller reported that a vehicle had abruptly stopped in the center of a residential road. Upon arriving at the scene at approximately 6:45 a.m., King County Sheriff’s Office Deputies saw a stationary vehicle in the southbound lane of the road with its headlights and taillights illuminated. The officers noticed the vehicle’s engine was running, the keys were in the ignition, and the transmission was in drive. The officers also observed Mr. Wasuge sitting in the reclined driver’s seat asleep with his feet resting on the floorboard.

The officers decided to “box the vehicle in” by parking their vehicles in front of and behind Wasuge’s vehicle. A deputy then knocked on the front driver’s side window and announced himself as a law enforcement officer. When Wasuge awoke, he looked at an officer and began rolling down the back driver’s side window before rolling down the front driver’s side window. A police officer immediately smelled “an odor of alcoholic beverages coming from the vehicle” and ordered Wasuge to put the gearshift in park and exit the vehicle, which he did.

When police asked Wasuge “why he was asleep in the middle of the roadway,” Wasuge said he was waiting for a friend and pointed at different houses in multiple directions. The officer suspected that Wasuge had been drinking alcohol because his breath smelled of alcohol; his speech was slurred; his eyes were bloodshot, glassy, and watery. Wasuge was also unbalanced when walking and standing; and he generally appeared “dazed and confused.” Police asked Wasuge if he had been drinking, which Wasuge denied. After Wasuge performed poorly on the field sobriety tests, he placed him under arrest for DUI. Farley then transported Wasuge to a hospital where a nurse drew his blood. Later testing of this blood determined that Wasuge’s BAC was .076 percent.

Mr. Wasuge was charged with DUI, Operating a Vehicle Without an Ignition Interlock Device, and Driving While License Revoked.

At trial, the jury convicted Wasuge of counts 2 and 3 as charged, but it did not reach a unanimous verdict on count 1. Instead, the jury convicted Wasuge of the lesser included offense of being in Actual Physical Control of a Motor Vehicle While Under the influence.

COURT’S ANALYSIS & CONCLUSIONS

Regarding the Expert Witness Testimony issue, the trial court abused its discretion in admitting the contested portions of Dougher’s testimony. Because the expert’s testimony about hypothetical per se BAC limit was not relevant to any issue in the trial, the trial court abused its discretion by admitting it.

“The State’s reliance on inadmissible testimony in this case is especially concerning, as it appears to be strategic. The State, as noted previously, did not seek to convict Wasuge under the “per se” prong of RCW 46.61.502(1)(a) or RCW 46.61.504(1)(a). Nor did it present a retrograde extrapolation, which might have been used to show that Wasuge’s BAC was .08 percent or higher while he was driving or in actual physical control of the motor vehicle.” ~WA Court of Appeals

Nevertheless, the COA found the errors harmless in light of the overwhelming evidence that Mr. Wasuge drove under the influence.

“These evidentiary errors would warrant reversal if this were a close case. But it is not. Under the nonconstitutional harmless error standard applicable to evidentiary errors, Wasuge is not entitled to a new trial unless he shows that within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected.” ~WA Court of Appeals

Here, police found Wasuge asleep behind the wheel of a vehicle sitting in the lane of travel with the engine idling and the gearshift in drive. Wasuge smelled of intoxicants. His speech was slurred, and his eyes were glassy, bloodshot, and watery. Wasuge performed poorly on the field sobriety tests. Lastly, Wasuge admitted to drinking multiple beers before driving the vehicle, and he had a BAC of .076 percent about two hours after he was first discovered behind the wheel of his vehicle.

“Because Wasuge has not shown that within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected, he is not entitled to a new trial on this basis,” said the COA. With that, the COA upheld Mr. Wasuge’s convictions.

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

Drug Overdose Deaths Beginning to Decline

Bellingham Defense Attorney, Drug Offenses, Fentanyl, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , , ,

Image: Reynoldsburg police shared a photo after they found an unconscious male behind the wheel

Photo courtesy of the Reynoldsburg Division Of Police.

Journalist Tanya Lewis wrote an insightful article on why opioid overdoses have fallen since their COVID-19 Pandemic peak. Although more than 100,000 people have died of overdoses every year since 2021 – mostly due to fentanyl – recent data from the CDC suggest that this brutal trend may have crested.

According to the article, overdose deaths have declined slightly overall since last fall, as have overdose deaths from opioids, including fentanyl. However, deaths over the last 12 months remain incredibly high, at more than 102,000, which is still well above prepandemic numbers. From 2017 to 2019, for example, it’s estimated that more than 68,000 people died every year from overdosing. These recent numbers are provisional and may represent an undercount, according to the CDC.

The reasons for the apparent peak in overdose deaths aren’t fully understood, but experts have a few hypotheses.

OVERDOSE DEATHS ARE REVERTING TO THEIR AVERAGE LEVEL FROM BEFORE THE COVID-19 PANDEMIC.

Overdose deaths spiked during the pandemic’s first few years. It’s not clear whether more people started using or whether people were simply dying at higher rates; exact counts aren’t available for the number of people who use illicit drugs such as fentanyl. Stress and social isolation increased during the pandemic, which may have led some people to start using or use more frequently or in riskier ways. Treatment for opioid use disorder was also disrupted, and if a person overdosed, it was less likely that someone would be there to intervene.

INVESTMENT IN TREATMENT AND INTERVENTIONS BRING POSITIVE EFFECTS.

Access to the overdose-reversing drug naloxone (often referred to by the brand name Narcan) has also increased. the drug is now available over the counter. Additionally, the availability of test strips for detecting fentanyl, as well as other types of drug testing equipment, Cerda says, may have also prevented overdose deaths by making it easier for people who use drugs to avoid fentanyl; the synthetic opioid is much stronger than other opioids and can lead to overdoses at much, much lower concentrations.

THE POPULATION OF PEOPLE WHO USED FENTANYL AND WERE AT RISK OF OVERDOSING HAVE SIMPLY DIED OFF. 

The older generation of people who have opioid use disorder is dying. The younger generation sees how deadly the drugs are and may be less inclined to start using them, adds Jay Unick, an assistant professor at the University of Maryland School of Social Work.

REDUCED SUPPLY OF FENTANYL IN SOME PARTS OF THE U.S. 

Most of the illicit fentanyl in the U.S. comes from Mexican cartels, which obtain its precursor chemicals from China and other countries. The U.S. Drug Enforcement Agency has been cracking down on a Mexican cartel called the Sinaloa cartel, which supplies fentanyl to much of the eastern U.S., and this could be leading to a shortage of the drugs.

The national trend belies important regional differences: while most eastern U.S. states saw declines in overdose deaths, many western states have seen increases. The timing of fentanyl’s introduction to these areas could explain the divide, experts say. The eastern half of the U.S.—from the Midwest to Appalachia—was first exposed to the drug around 2014, whereas it didn’t really emerge across the West Coast until 2019.

THE DEMOGRAPHICS HIT HARDEST BY THE U.S. OPIOID EPIDEMIC HAVE SHIFTED.

Fewer white people are now dying of overdoses, whereas Black and Indigenous people are dying at higher rates. The crisis has also been fueled by homelessness and high rates of mental illness, signs of the compounding effects of income inequality.

THE WEST COAST’S INCREASE IN OVERDOSE DEATHS IS LEADING SOEM STATES TO ADOPT TOUGHER STANCES ON VISIBLE DRUG USE.

In a landmark move in 2020 Oregon voted to decriminalize small amounts of certain drugs, including heroin, cocaine and methamphetamine. But in response to public pressure, the state recently rolled back that policy. It is unlikely that decriminalizing drugs in Oregon caused an increase in opioid overdoses. The increases were also seen in California, Washington and numerous other states that did not decriminalize them.

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

Bellingham Sees a Summertime Spike In DUI Arrests

Bellingham Defense Attorney, DUI, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , , ,

Summer Drinking: How Much Is Too Much? - Health Beat

Photo courtesy of gettyimages.com

According to the Bellingham Herald, the City of Bellingham Has Seen a Spike in DUI’s this  Summer.

THE DATA

The Bellingham Police Department reported 14 DUI arrests the weekend of July 3-5. The department made another 15 arrests July 12-15, with eight on July 13 alone. That’s 29 DUI arrests over seven days in July.

To put that into perspective, BPD averaged 21 DUI arrests per month from 2019-2023, and the department never reported more than 40 in a single month during that time, according to the city’s crime statistics tracker. So far this year, monthly arrests have topped 50 twice — 50 in March and 55 in July. The annual trend is even more stark. BPD reported 245 DUI arrests from January through July, which puts the city on pace to top its 2023 total of 382.

ALTHOUGH DUI’S HAVE INCREASED VEHICLE CRASHES INVOLVING ALCOHOL HAVE DECREASED.

Meanwhile, crashes involving alcohol appear to be on the decline in Whatcom County and Bellingham. There have been 18 traffic crashes involving alcohol in Bellingham, which saw 72 such incidents reported in 2023, according to the Washington State Department of Transportation Crash Data Portal.

WHY THE SUDDEN INCREASE IN DUI ARRESTS?

The hot summer weather can cause dehydration, which in turn can affect the way your body metabolizes alcohol. When dehydrated, your body has less water available to dilute the alcohol in your system. This means that even a tiny amount of alcohol can result in a higher BAC level than it would under normal conditions. Additionally, high temperatures can increase your heart rate and cause your blood vessels to dilate, leading to faster absorption of alcohol into your bloodstream.

DOES SUMMER HEAT IMPACT DUI BREATHALYZER RESULTS?

The effects of dehydration and increased heart rate caused by the summer heat can also impact the accuracy of DUI tests. Breathalyzer tests rely on the assumption that a person’s breath contains an accurate representation of their BAC level. However, if someone is dehydrated or experiencing an elevated heart rate due to the heat, their breath may not provide an accurate reading. This means that someone who is actually below the legal limit could still test positive for driving under the influence.

TIPS FOR STAYING SAFE ON THE ROAD THIS SUMMER.

To avoid potential issues with elevated BAC levels and inaccurate DWI test results during the summer months, it’s important to stay safe on the road. Make sure to stay hydrated by drinking plenty of water throughout the day, especially if you plan on consuming alcohol later on. Limit your alcohol intake when it’s hot outside, as even a small amount could have a greater impact on your BAC level than usual. If you do decide to drink, make sure to wait a sufficient amount of time before getting behind the wheel to allow your body to metabolize the alcohol.

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

State v. Allah: Probationer’s Right Against Unlawful Search

Bellingham Defense Attorney, Constitutional Rights, Firearm, Mount Vernon Criminal Defense Attorney, Probation, Search and Seizure, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , , ,

In State v. Allah, the WA Court of Appeals held a probationer’s vehicle was unlawfully searched and seized during a traffic stop. His prior criminal history, gang affiliations and geographic boundary  restrictions did not establish a sufficient nexus for a warrantless search.

FACTUAL BACKGROUND

In October 2020, Mr. Allah was on probation for a 2017 firearm conviction. He was driving his car in the Central District of Seattle, when a police officer pulled him over on suspicion of driving with a suspended license. After learning of Allah’s probationary status, the officer contacted the Department of Corrections (DOC). The Officer requested a Community Corrections Officer (CCO) arrive at the scene to discuss next steps.

While he was on his way to the scene, the CCO reviewed Allah’s prior conditions of community custody. The CCO noted Allah was in violation of a geographic boundary condition, which excluded him from the Central District. The geographic restriction  was in place because Allah was in a gang associated with the Central District.

Upon arriving at the scene, the CCO talked with Allah and then searched the car, specifically for a firearm. The CCO located a firearm on the floorboard underneath the driver’s seat. He collected the firearm as evidence and arrested Allah.

The State charged Allah with a Firearm Offense because his prior convictions barred him from possessing firearms. Allah moved to suppress the firearm evidence from the CCO’s search under a CrR 3.6 Motion. Allah argued there was an insufficient nexus between the search and Allah’s geographic violation. The judge denied Allah’s 3.6 Motion.

In December 2022, a jury convicted Allah as charged.  Allah appealed.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals (COA) established that the Washington Constitution provides a robust privacy right; stating that “no person shall be disturbed in his private affairs, or his home invaded, without authority of law.” That said, warrantless seizures are per se unreasonable and subject to limited exceptions. The State has the burden of proving a warrantless search falls within an exception.

THE COA further established that parolees and probationers have diminished privacy rights. This is because they are persons whom a court has sentenced to confinement but who are serving their time outside the prison walls. As such, a probationer may be searched on the basis of a wellfounded or reasonable suspicion of a probation violation rather than a warrant supported by probable cause.

Even with probationer’s diminished privacy rights, however, the Washington Constitution permits a warrantless search of the property of an individual on probation only where there is a nexus between the property searched and the alleged probation violation.

“Permitting searches without a nexus would allow fishing expeditions to discover evidence of other crimes, past or present. After all, if a prior conviction, not to mention a prior arrest, should afford grounds for believing that an individual is engaging in criminal activity at any given time thereafter, that person would never be free of harassment, no matter how completely he had reformed.” ~WA Court of Appeals

The COA’s Rationale On “Sufficient Nexus”

The COA further surmised that even when there is a nexus between the property searched and the suspected probation violation, an individual’s reduced privacy interest is safeguarded in two ways. First, a CCO must have reasonable cause to believe’ a probation violation has occurred before conducting a search at the expense of the individual’s privacy. Second, the individual’s privacy interest is diminished only to the extent necessary for the State to monitor compliance with the particular probation condition that gave rise to the search. The individual’s other property, which has no nexus to the suspected violation, remains free from search.

In sum, neither CCO or the State provide a sufficient explanation of why any person would reasonably believe Allah may have had a weapon immediately preceding the search. No matter how the constitutionality of the search is conceptualized—i.e., whether as requiring a nexus between the boundary violation and the vehicle searched, or as simply requiring reasonable suspicion—the logical gap remains.

As to the geographic boundary, CCO admitted it was irrelevant to his decision to search. As to Allah’s prior firearm conviction, our Supreme Court has long explained that a probationer’s past convictions alone are not enough to support a search. Otherwise, a probationer “would never be free of harassment, no matter how completely he had reformed.”

With that, the COA reversed the lower court’s denial of Allah’s CrR 3.6 motion to suppress the firearm evidence. The COA also reversed Allah’s conviction, and remanded the matter to the lower court for future proceedings.

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

WA Ranks Low In States With Road Rage

Bellingham Defense Attorney, Firearm, Mount Vernon Criminal Defense Attorney, Reckless Driving, Reckless Endangerment, Road Rage, Skagit County Criminal Defense, Studies, Uncategorized, Whatcom County Criminal Defense, , , , ,

A person driving.

A recent study from H&P Law ranks Washington among states with the least amount of road rage. The firm used data from The Trace and the NHTSA’s Fatality Analysis Reporting System to rank states by most common road rage incidents. Washingtonians can consider themselves lucky – the Evergreen State falls in the bottom ten for reported or documented road rage incidents.

THE REPORT

The report ranks all 50 states utilizing analysis of six key factors. Data points used include the number of firearm-related incidents, the percentage of crashes involving aggressive or careless driving, the number of accidents with fatalities, the total number of deaths from crashes involving aggressive or careless driving, the percentage of incidents involving aggressive or careless driving that resulted in a fatality, and speeding violations, at varying weights.

Washington ranks 44 of 50, making it one of the states with the fewest road rage incidents. Rhode Island was ranked the best. The study ranked the least road rage prone states in the bottom ten as: Iowa South Dakota, Wyoming, Washington, Massachusetts, New York, New Hampshire, Virginia, California, Rhode Island.

WHAT MADE WASHINGTON’S SCORE SO LOW?

The Evergreen State has a low rate of firearm-related road rage incidents, at 1.5 per 100,000 residents. Less than 28% of the state’s car crashes involve aggressive or careless driving, according to the study. Washington experiences 2.5 fatal crashes due to aggressive driving per 100,000 residents, and a low number of speeding violations compared to other states.

WHICH STATES HAVE MOST ROAD RAGE?

According to the report, the states with the most road rage are:

  • Louisiana
  • New Mexico
  • Montana
  • Arkansas
  • Colorado
  • North Carolina
  • Delaware
  • Florida
  • Wisconsin
  • Tennessee

At some point in every driver’s life, they’ll inevitably experience road rage. Whether it’s screaming vulgarities, the middle finger, tailgating or aggression, being on the receiving end of road rage is jarring, and potentially dangerous.

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

Defendants Can’t Be Forced to Appear in Court from Jail Cells

Bellingham Defense Attorney, Jail, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , , ,

US reporter Evan Gershkovich appears in Russian court to appeal detention | The Times of Israel

Photo courtesy of NATALIA KOLESNIKOVA / AFP)

In State v. Luthi, the WA Supreme Court held that defendants who appear in an in-courtroom holding cells at jails are essentially shackled, and as such, they may not be placed in holding cells without a specific inquiry into why that’s necessary.

FACTUAL BACKGROUND

In order to fully appreciate the particular restraint at issue in this case, we must first describe the in-court holding cell at the Cowlitz County Jail courtroom used for Ms. Luthi’s hearing.

The Cowlitz County Superior Court often employs a courtroom in the Cowlitz County Jail for short criminal proceedings without witnesses. When the defendant appears for such a hearing, they enter the in-court holding cell directly from a “secured area of the jail.” The holding cell appears to be located at the back or side of the Cowlitz County Jail courtroom, away from the table where counsel sits.

The interior of the holding cell is roughly five feet wide, five feet deep, and eight feet long, with a “mesh window” on the right to allow defendants to speak with their attorneys, and a glass window on the left. Id. (internal quotation marks omitted). Viewed from the courtroom, the in-court holding cell looks like this:

Defendants can't be forced to appear in court from jail cells, WA Supreme Court rules | The Seattle Times

In 2021, Luthi pleaded guilty to Drug Offense. She was given a mental health sentencing alternative (MHSA) of 36 months’ parole. Following two parole violation notices in 2022, the State petitioned to revoke the MHSA. Luthi was taken into custody at the Cowlitz County Jail on December 20, 2022. She was held without bail until her MHSA revocation hearing in February 2023.

Luthi’s defense counsel was already very familiar with the in-court holding cell, which counsel refers to as “a cage on the side of the  courtroom.” According to defense counsel, the incourt holding cell was a dehumanizing restraint comparable to shackling. As a form of restraint, shackling cannot be imposed unless a judge finds it necessary. Through counsel, Luthi filed a motion before her MHSA revocation hearing to appear in court without restraints. Counsel argued there was no reason to place Ms. Luthi inside of a cage and for her to be physically separated from the court proceedings. She was not a flight risk, and she was not going to harm herself or others.

The judge denied Luthi’s hearing to be released from the holding cell during court hearings. After her hearing, Luthi wrote an e-mail to defense counsel. She explained how difficult it was to participate from the in-court holding cell. Among other things,  it was “almost impossible to speak” to her attorney. Luthi also described feeling as though she was “on display” in the holding cell and “not a part of her own court hearing.”

COURT’S RATIONALE & CONCLUSIONS

Justice Yu wrote the court’s opinion. She held the superior court failed to conduct a  individualized inquiry before requiring Luthi to appear in an in-court holding cell. Consequently, Justice Yu reasoned that in-court holding cell violated Luthi’s due process right to appear at all courtroom proceedings without unjustified restraints:

“Requiring defendants to attend court hearings while in a holding cell undermines the presumption of innocence, interferes with a defendant’s ability to communicate with counsel, and violates the dignity of the defendant and the judicial proceedings.” ~WA Supreme Court Justice Mary Yu

Moreover, Justice Yu reasoned the physical separation between the defendant and everyone else in the courtroom created undue biases and assumptions from others:

“Applying reason, principle, and common human experience, we must conclude that this constant reminder of the accused’s condition could invite any decision-maker to draw negative, prejudicial inferences, even at a subconscious level.” ~WA Supreme Court Justice Mary Yu

Finally, Justice Yu reasoned the in-court holding cell is contrary to the courtroom’s formal dignity, which includes the respectful treatment of defendants:

“In the United States, defendants traditionally sit next to their counsel at counsel table, and courtrooms have historically been built without docks or incourt holding cells . . . Compelling a defendant to appear from an in-court holding cell without justification creates the perception that the rest of the courtroom is really a theater . . . making the defendant an exhibit or spectacle in the trial.” ~WA Supreme Court Justice Mary Yu

With that, Justice Yu and the majority court reversed and remanded Ms. Luthi’s MHSA revocation to the superior court for a new hearing.

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.