Category Archives: Uncategorized

A Cell Phone “Ping” Is a Search

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

BACKGROUND FACTS

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

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

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

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

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

Muhammad was arrested and charged with rape and felony murder.

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

COURT’S ANALYSIS & CONCLUSIONS

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

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

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

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

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

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

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

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

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

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

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

Inventory Searches, Automatic Standing, & Stolen Vehicles.

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In State v. Peck, the WA Supreme Court found that persons found in possession of a stolen vehicle may challenge the search of that vehicle.  However, closed containers, other than items that “possess the same aura of privacy as a purse, shaving kit, or personal luggage” and locked containers, may be opened  during an inventory search of a stolen vehicle.  The search, of course, must not be used as a pretext for an investigatory search.

BACKGROUND FACTS

Two Kittitas County sheriffs deputies responded to a suspected theft in progress at a home in rural Ellensburg. When the deputies arrived, they discovered two individuals outside the home, along with a pickup truck stuck in the driveway’s unplowed snow. The deputies handcuffed the two men and eventually learned that they were Mr. Peck and Clark Tellvik. Two more deputies then arrived. One of them entered the pickup truck’s license plate into a law-enforcement database and learned that the truck had been reported stolen.

Officers impounded the vehicle. They searched the pickup without obtaining a search warrant because they believed that Peck and Tellvik did not have a reasonable expectation of privacy in a stolen vehicle. Police discovered methamphetamine and drug paraphernalia inside the vehicle.

Peck and Tellvik were charged with several crimes, including possession of a stolen vehicle and possession of a controlled substance with intent to deliver. The defendants moved to suppress the contraband found in the black zippered nylon case. The trial court denied the motion to suppress, finding the inventory search to be proper and finding no evidence of pretext. A jury subsequently convicted each defendant of the charged drug possession and stolen vehicle offenses. Peck and Tellvik were subsequently convicted. Both appealed their controlled substance convictions. The Court of Appeals reversed the trial court’s denial of the motion to suppress. The WA Supreme Court granted review.

ISSUES

  1. Whether defendants have standing to challenge the scope of a warrantless inventory search of a vehicle when that vehicle is stolen.
  2. Whether a proper inventory search extends to opening an innocuous, unlocked container of unknown ownership found in a stolen vehicle associated with defendants who were apprehended while burglarizing a home.

COURT’S ANALYSIS & CONCLUSIONS

  1. Defendants have standing to challenge the scope of a warrantless inventory search of a vehicle, even when that vehicle is stolen.

First, the WA Supreme Court held the defendants have standing to challenge the search. It reasoned that a defendant has automatic standing to challenge a search if (1) possession is an essential element of the charged offense and (2) the defendant was in possession
of the contraband at the time of the contested search or seizure. And a defendant
has automatic standing to challenge the legality of a seizure even though he or
she could not technically have a privacy interest in such property.

“Peck and Tellvik have automatic standing to challenge the inventory search,” said the Court. It reasoned that the first prong of the test was satisfied because both were charged with possession of a controlled substance with intent to deliver. Furthermore, the second prong is satisfied because Peck and Tellvik were in possession of the truck up until the time of the search. “As such, Peck and Tellvik have automatic standing to
challenge the warrantless inventory search of the black zippered nylon case.”

2. A proper inventory search extends to opening an unlocked container of unknown ownership found in a stolen vehicle.

The WA Supreme Court began by saying that warrantless searches are unreasonable. Despite that rule, a warrantless search is valid if one of the narrow exceptions to the warrant requirement applies. One of those narrow exceptions is a noninvestigatory inventory search. Inventory searches have long been recognized as a practical necessity.

“To be valid, inventory searches must be conducted in good faith and not as a pretext for an investigatory search.”

The court explained that Inventory searches are also limited in both scope and purpose. They are permissible because they (1) protect the vehicle owner’s (or occupants’) property, (2) protect law enforcement agencies/officers and temporary storage bailees from false claims of theft, and (3) protect police officers and the public from potential danger. Unlike a probable cause search and search incident to arrest, officers conducting an inventory search perform an administrative or caretaking function.

The Court reasoned that under these circumstances, it was proper for police to do more than merely inventory the unlocked nylon case as a sealed unit. First, the police knew the vehicle was stolen. Second, Peck and Tellvik were arrested while in the process of burglarizing a home and were observed taking items from the home and its surroundings. Responding officers testified that a purpose in conducting an inventory search of the truck was to determine ownership of both the truck and its various contents. Third, the search was not pretextual. And finally, the innocuous nature of the container at issue is important: a nylon case that looked like it contained CDs does not possess the same aura of privacy as a purse, shaving kit, or personal luggage.

“Here, where the vehicle was stolen, Peck and Tellvik were arrested immediately outside of a home that they were currently  burglarizing, and the trial court explicitly found no evidence of pretext, the search was proper.”

The WA Supreme Court concluded that under the facts of this case, the search was a lawful inventory search. Accordingly, it reversed the Court of Appeals and upheld the denial of the motion to suppress. Justices Gordon McCloud, Madsen, Yu, and Chief Justice Fairhurst dissented.

Please contact my office if you, a friend or family member face criminal charges involving vehicle searches. It is imperative to hire an experienced criminal defense attorney who will defend your rights.

The Role of the Prosecutor

The Role of the Prosecutor

Ever wondered about the role of a prosecutor and their work within the community? Check out our new video!Thank you to the Karpel Foundation and the San Diego County District Attorney Office for their support in making this video.

Posted by National District Attorneys Association on Thursday, August 8, 2019

Have you ever thought about the role of a prosecutor and their work within the community?

Well, look no further. The National District Attorneys Association released a video titled, “The Role of the Prosecutor.”

Overall, it’s a good video. It accurately shows how prosecutors go about presenting cases against individuals who are suspected of breaking the law, initiating criminal investigations, conducting trials and recommending the sentencing of offenders.

Although defense attorneys and prosecutors are adversaries in the criminal justice system, it’s extremely important for them to develop and maintain cordial relationships. According to the Department of Justice’s Bureau of Justice Assistance, “The overwhelming majority (90 to 95 percent) of cases result in plea bargaining.”

Plea bargains are agreements between defendants and prosecutors in which defendants agree to plead guilty to some or all of the charges against them in exchange for concessions from the prosecutors. These agreements allow prosecutors to focus their time and resources on other cases, and reduce the number of trials that judges need to oversee.

In plea bargains, the defense lawyer and prosecutor discuss the case, and one or the other proposes a deal. The negotiations can be lengthy and conducted only after both parties have had a chance to research and investigate the case. Or, they can be minute-long exchanges in the courthouse hallway. Prosecutors usually agree to reduce a defendant’s punishment. They often accomplish this by reducing the number of charges of the severity of the charges against defendants. They might also agree to recommend that defendants receive reduced sentences. In this process, good criminal defense attorneys are persuasively effective at explaining the facts, the law and their defense theory.

Great criminal defense attorneys, however, have decent working relationships with prosecutors. These relationships are built on years of mutual respect and working on cases together in a straightforward, honest, ethical manner.  Often, prosecutors know nothing more than the police reports and criminal histories of the defendants they bring charges against. They lack context and insight into why the parties involved criminal investigations behave certain ways. Based on that working relationship, great criminal defense attorneys are adept at humanizing their clients and persuading an otherwise hardened prosecutor to consider the deeper complexities of a case.

Please contact my office if you, a friend or family member face criminal charges. It’s important to hire an experienced criminal defense attorney like myself who appreciates the role of the prosecutor and works with them on a regular basis.

Are Long Prison Sentences Necessary?

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“For decades, while we made it increasingly difficult to obtain release, we have sent people to prison for longer and longer. We became reliant on extreme sentences, including mandatory minimums, “three-strike” laws, and so-called truth-in-sentencing requirements that limit opportunities for people to earn time off their sentences for good behavior. As a result, the United States laps the world in the number of people it incarcerates, with 2.2 million people behind bars, representing a 500 percent increase over the past four decades, with 1 in 9 people in prison serving a life sentence.”

Moreover, the authors argue that legislation is needed at the federal level and in every state to allow everyone after a certain period in prison the opportunity to seek sentence reductions. Sentence review legislation recognizes that as we have increased the length of prison sentences and limited the ability to obtain release, our prisons have become overwhelmed with people whose current conduct proves further incarceration is not in the public interest.

LONG PRISON SENTENCES DO NOT REDUCE CRIME.

“We increased sentence lengths and made it more difficult for people to be released because we were told it was needed for public safety,” said the authors. “But sending people to prison for long periods does not reduce crime.”

In fact, longer sentences, if anything, create crimeDavid Roodman, a senior adviser for Open Philanthropy, reviewed numerous studies on the impact of incarceration and concluded that “in the aftermath of a prison sentence, especially a long one, someone is made more likely to commit a crime than he would have been otherwise.”

Additionally, the authors say that not only are lengthy prison sentences ineffective at reducing crime, but they have devastated low-income and minority communities. As the Vera Institute aptly put it: “We have lost generations of young men and women, particularly young men of color, to long and brutal prison terms.” While black people are just 13-percent of the country’s population, they account for 40 percent of the people we incarcerate.

If the ineffectiveness of long prison terms or the impact on poor communities of color is not reason enough to revisit lengthy prison sentences, the financial drain of long prison terms is staggering. For example, U.S. prisons spend $16 billion per year on elder care alone. Billions of dollars are diverted to prisons to care for the elderly who would pose no real risk if released when that money could be going to our schools, hospitals, and communities.

Given this reality, the authors say, we need to pursue every option that would safely reduce our prison population. One proposal by the American Law Institute recommends reviewing all sentences after a person has served 15 years in prison. Another example is the bill Sen. Cory Booker (D-N.J.) and Rep. Karen Bass (D-Calif.) introduced that would provide sentence review for anyone who has served more than 10 years in prison or who is over 50 years old. Notably, neither proposal is restricted by the type of offense, which is critical, because to combat mass incarceration, to echo the Prison Policy Initiative, reform has “to go further than the ‘low hanging fruit’ of nonviolent drug offenses.”

“Measures that promote sentence review would not automatically release anyone,” say the authors. “Instead, people would be given a chance to show a court that they are no longer a danger to public safety. A judge—after weighing all relevant circumstances, including hearing from any victims and their families—would then decide whether a person should be released.”

And numerous studies have shown that decreasing sentences does not increase crime. A recent Brennan Center for Justice report documented 34 states that reduced both their prison population and their crime rates, the Sentencing Project concluded that unduly long prison terms are counterproductive for public safety, and the Justice Policy Institute found little to no correlation between time spent in prison and recidivism rates.

My opinion? Some crimes need punishment. However, we have forgotten that our justice system is supposed to rehabilitate people, not just punish them. Our policies should reflect the ability of people to change over the course of years—or decades—of incarceration.

Lawmakers Consider Giving Judges More Discretion

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Great article by James Drew of the News Tribune says that over the next 20 months, state legislators shall study, debate, and vote on what could be the first major reform of Washington’s criminal sentencing law since 1981.

The starting point of the deliberations is a stack of recommendations from a state commission that would give judges more discretion in how they sentence adults convicted of felonies. The change could help the state reduce its reliance on incarceration and move more toward rehabilitation of offenders.

The goal of overhauling the criminal sentencing law is to improve the system by simplifying it, but there are key questions looming for lawmakers, said Rep. Roger Goodman, the Kirkland Democrat who is chairman of the House Public Safety Committee. Disparities — a lack of equality or similarity in a way that is unfair — can occur by race, gender, geography, income and other factors, but the discussion last month touched heavily on race.

At a July 16 legislative work session, Sen. Jeannie Darneille, D-Tacoma, questioned whether the Criminal Sentencing Guidelines Commission had studied systems in other countries that would help Washington address concerns throughout the United States about “mass incarceration.”

The Legislature adopted the Sentencing Reform Act in 1981 and it took effect three years later. Since then, lawmakers have amended it dozens of times. The state’s three appellate courts and the Supreme Court have issued several rulings interpreting its provisions.

Goodman said there are several recommendations in a July 1 report by the Criminal Sentencing Guidelines Commission that the Legislature can tackle during its 60-day session next year.

Drew reported that a person’s greatest risk of committing another crime after release from confinement is within the first three to six months, according to an analysis by the Council of State Governments.

Under the current system, a judge would have a sentencing range of 12-14 months for a defendant who is convicted of a Class B assault with a deadly weapon — and 36 months tacked on for use of a firearm. The 12-14 month sentence carries a 33 percent off for good behavior in prison, but the 36-month enhancement does not.

“The sentence is opaque and difficult for the public to understand and allows almost no discretion for the trial court,” the commission report said.

One of the reform proposals from the commission would provide a sentence range from 12-24 months, but any sentence between six months and 30 months would be deemed reasonable. The entire sentence would carry the same good behavior in prison provision to reduce the sentence.

My opinion? This is good news. If allowed, a sentencing judge may give more weight to certain intangible factors.  For example, a judge may take account of a defendant’s good deeds in other areas of his life, considering whether the crime is an isolated incident or aberration on the record of an otherwise well-intentioned individual or whether the crime is just one chapter in a life filled with deceit.

Part of my practice includes drafting sentencing memorandums and assembling merit packages for clients convicted or felonies. These merit packages consist of character reference letters, proof of treatment, college transcripts (if applicable) favorable job reviews, security clearances, etc. The goal is to paint a favorable picture of the defendant that describes them beyond the criminal charges.

A Snowmobile Is Not a Motor Vehicle

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In State v. Tucker, the WA Court of Appeals held that a snowmobile is not a “motor vehicle” for purposes of RCW 9A.56.65, which makes it a class B felony to commit theft of a motor vehicle.

BACKGROUND FACTS

In February 2016, Ms. Tucker and her accomplice broke into a cabin near Stampede Pass. The cabin was accessible only by snowmobiles. The pair stole several items of personal property, including a snowmobile.

The State charged Ms. Tucker with residential burglary, second degree theft, theft of motor vehicle, and third degree malicious mischief. A jury found Ms. Tucker guilty of first degree criminal trespass and theft of motor vehicle, but could not reach a verdict on the charge of second degree theft. The trial court declared a mistrial on that count, and it later was dismissed without prejudice.

Defense counsel, relying on State v. Barnes, filed a motion to arrest judgment on the theft of a motor vehicle conviction. The trial court denied the motion on the ground that the snowmobile was licensed and has a motor. Ms. Tucker timely appealed this aspect of her conviction.

COURT’S ANALYSIS & CONCLUSIONS

In short, the Court of Appeals reviewed existing caselaw under State v. Barnes and concluded that, similar to the riding lawn mower in the Barnes case, a snowmobile is not a motor vehicle.

“Here, a snowmobile is not a car or other automobile. To paraphrase the Barnes lead opinion, the legislature was responding to increased auto thefts, not increased snowmobile thefts.”

The Court of Appeals rejected the State’s argument that the stolen snowmobile should be classified as a motor vehicle because at the time and place it was stolen, a snowmobile was the only vehicle capable of transporting people or cargo. It reasoned that transporting people or cargo is not the touchstone agreed to by six justices in the Barnes Case.

“The concurring justices never stated that transporting people or cargo was a relevant consideration,” said the Court of Appeals. “Also, the lead and concurring justices also required the vehicle to be a car or other automobile. A snowmobile obviously is not a car or other automobile.”

The Court of Appeals concluded that because a snowmobile is not a car or other automobile, a snowmobile is not a motor vehicle for purposes of the statute. The Court reversed Ms. Tucker’s conviction for theft of motor vehicle and instructed the trial court to dismiss that conviction.

My opinion? Excellent decision. The Court appropriately relied on the Barnes decision and made the right decision.

Contact my office if you, a friend or family member are inaccurately charged with a crime which does not meet statutory definitions or the elements of the allegations. Chances are, a well-timed motion to dismiss the charges could win the day.

Suppress Evidence or Dismiss the Case?

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In State v. McKee, the WA Supreme Court held that when an appellate court vacates a conviction that is obtained with illegally seized evidence, the remedy is remand to the trial court with an order to suppress evidence and not out-rightly dismiss the case in its entirety.

BACKGROUND FACTS

A jury convicted Mr. McKee of four counts of possessing Depictions of Minors Engaged in Sexually Explicit Conduct. The Court of Appeals reversed those convictions on the ground that police had used an overbroad search warrant to obtain the underlying cell phone photos and videos.

The Court of Appeals reversed the conviction. Although the Court of Appeals provided no reasoning to justify that remedy, it appears to have thought dismissal was warranted because once the cell phone evidence was suppressed, there would be insufficient evidence to sustain the convictions at a second trial.

The State appealed on arguments that the Court of Appeals mistakenly reversed the conviction. It argued that dismissal was inappropriate because that testimony—i.e., the evidence that was not tainted by the invalid search warrant— would be sufficient to sustain the Possessing Depictions convictions on retrial.

LEGAL ISSUE

Whether the Court of Appeals erred when it dismissed the convictions after suppressing the cell phone evidence, thus barring any possibility of a retrial.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court held that the typical remedy for a Fourth Amendment violation is suppression, not dismissal. Furthermore, the remedy of dismissal typically applies only when a conviction is reversed for insufficient evidence or the government’s misconduct has prejudiced the defendant and materially affected the possibility of a fair trial.

“The logic underlying this rule is that a reversal for insufficiency is tantamount to an acquittal, but a reversal for any other trial court error is not,” reasoned the WA Supreme Court. “A reversal for insufficiency indicates the government had its chance and failed to prove its case, while a reversal for another trial error indicates only that the defendant was convicted through a flawed process.”

This rule applies whenever the erroneous admission of evidence requires reversal, including when error stems from an illegal search or seizure.

“Thus, in a case like this one, an appellate court does not evaluate the sufficiency of the untainted evidence remaining after suppression. Provided the total evidence (tainted and untainted) was sufficient to sustain the verdict, the remedy is limited to reversal and suppression.”

With that, the WA Supreme Court reversed the Court of Appeals and remanded to the trial court for further proceedings consistent with the order to suppress evidence seized as a result of the faulty warrant.

Please contact my office if you, a friend or family member face criminal charges  involving a questionable search and seizure. Briefing and arguing a well-supported 3.6 Motion to Suppress Evidence could ultimately result in the charges getting dismissed.

Books Banned in WA Prisons

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Excellent article by reporter of Bookriot.com discusses how the Washington State Department of Corrections adopted a policy which disallows books to be donated to prisons via nonprofit organizations.

“So quietly, in fact, that one of the largest nonprofits that works to get donated materials to prisoners was taken by surprise to discover the change,” reports Ms. Jensen. “They weren’t informed before it was implemented.”

Fortunately, Books to Prisoners, a nonprofit organization located in Seattle, is ready to fight it.

One of the reasons noted for this sudden policy change is the lack of staff in mail rooms to determine whether or not materials sent are appropriate or whether they’re hiding contraband. Likewise, additional funding and resources are not available to the Washington State Library (WSL).

“This highlights exactly why Books to Prisoners and similar nonprofits do the work that they do — these facilities are underfunded and that lack of funding impacts the individuals who use those books to improve themselves and their own literacy,” says Jensen. “These book donations, which are thoroughly inspected by those at the nonprofit for suitability, fill a critical role in helping those incarcerated who otherwise lack access to vital educational tools.”

Books to Prisoners has sent free books to prisoners across the country since 1973. They note in a tweet “Attempted bans pop up sometimes, most recently by Pennsylvania DOC in 2018, always using same vague “safety” justification. In 45 years, our books have never had contraband.” They added, “Given that we’ve sent books without issue since 1973, and currently send to 12,000 unique prisoners across almost every state in the country each year, it would be bewildering if after 46 years of work as an award-winning nonprofit we decided to start transporting contraband.”

According to Jensen, prison libraries are severely underfunded; and there’s a lack of staff as well. And as Books to Prisoners notes, “Furthermore, the reason that we send books directly to the hands of prisoners is that libraries are chronically underfunded and understaffed.” Barring access to literature, which is what this policy does, hinders those who need it most.

Other states, including New York, have tried similar bans and they’ve been rescinded. The ACLU has stepped in in similar attempted book bans in prison as well.  Criminal justice reform includes ensuring that those who are incarcerated have rights to literature and education, so steps like these by the Washington Department of Corrections are but steps backwards. To combat recidivism, literacy is one of the crucial steps forward, and yet, situations like these further hinder rehabilitation and self-development of those who most need it.

A CALL TO ACTION

If you’re in Washington or anywhere in the US, speak up about this policy to help get it changed. Contact Prisons Division Correctional Manager Roy Gonzalez at rgonzalez@doc1.wa.gov or by phone at 360-725-8839. You can also sign the petition to stop the ban or donate to Books to Prisoners to help support their efforts in getting the policy reversed.

“Spread the word. Share this and any tweets, petitions, or phone blitz information among your friends, family, and colleagues,” says Jensen.

 

Washington Crime Report Released

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The Washington Association of Sheriffs and Police Chiefs (WASPC) just released its 2017 Crime in Washington Annual Report.

It was compiled from data submitted to the Washington State Uniform Crime Reporting Program of the WASPC by Washington State law enforcement agencies.

FACTS AT A GLANCE

  • In 2017, Crimes Against Persons showed an increase of 0.4% with 84,145 offenses reported; compared to 2016 offenses reported of 83,771.
  • In 2017, Crimes Against Property showed an decrease of 6.7% with 295,274 offenses reported; compared to 316,361 offenses reported in 2016.
  • In 2017, Crimes Against Society showed an increase of 5.9% with 32,011 offenses reported; compared to 30,230 offenses reported in 2016.
  • Group A offenses were cleared by arrest or exceptional means 25.6% of the time.
  • The crime rate (per 1,000 in population) for Group A offenses was 69.1.
  • The total arrest rate per 1,000 in population was 25.6.
  • Juveniles comprised of 6.9% of the total arrests.
  • Domestic Violence offenses made up 50.4% of all Crimes Against Persons.
  • A total of 25,400 persons were arrested for DUI, including 163 juveniles.
  • A total of 531 hate crime incidents were reported.
  • There were a total of 1,643 assaults on law enforcement officers and no officers killed in the line of duty.
  • Full-time law enforcement employees totaled 15,873; of these 11,078 were commissioned officers.
  • There were 11,986 arrests for drug abuse violations; of that number, 10.2% were persons under 18 years of age.
  • Possessing/concealing of marijuana constituted 16.7% of the total drug abuse incidents; the distributing/selling of marijuana accounted for 1.1% of incidents(type of criminal activity can be entered three times in each incident).
  • Possessing/concealing of heroin constituted 32.2% of the total drug abuse incidents; the distributing/selling of heroin accounted for 4.6% of incidents (type of criminal activity can be entered three times in each incident).
  • The weapon type of “Personal Weapons” (hands, fists or feet) was reported in 51,817 incidents; firearms were reported in 8,465 incidents (up to three weapons can be reported in each incident).
  • There were 6,212 sexual assault (forcible and non-forcible) incidents reported in 2017. There were a total of 6,212 victims in these incidents; with a total of 6,300 offenders.
  • There were a total of 54,294 domestic violence incidents reported; 12,023 of these incidents were Violations of Protection or No Contact Orders.

Overall, the data is very interesting.

Please contact my office if you, a friend or family member are charged with a crime. Consultations are free. I provide effective criminal defense for people charged with felonies and misdemeanors. It is extremely important to hire an attorney like myself who is willing to devote significant attention to the case. I say this because people convicted of a crime face more than just criminal penalties. They also face a potential lifelong social stigma, as well as diminished employment, housing and educational opportunities. I proudly represent clients in Skagit and Whatcom County, Washington.

 

Unlawful Vehicle Stops

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In United States v. Landeros, the Ninth Circuit Court of Appeals held that law enforcement officers may not extend a lawfully initiated vehicle stop because a passenger refuses to identify himself, absent reasonable suspicion that the individual has committed a criminal offense.

BACKGROUND FACTS

Early in the morning of February 9, 2016, police officer Baker pulled over a car driving 11 miles over the speed limit. The stop occurred on a road near the Pascua Yaqui Indian Reservation. Defendant Alfredo Landeros sat in the front passenger seat next to the driver. Two young women were in the back seat. The driver apologized to Officer Baker for speeding and provided identification.

Officer Baker wrote in his incident report and testified that he smelled alcohol in the car. The two women in the backseat appeared to him to be minors, and therefore subject to the underage drinking laws.  The two women—who were 21 and 19 years old—complied.

Officer Baker did not believe that Landeros was underage, and he was not. Nonetheless, Officer Baker commanded Landeros to provide identification.

Landeros refused to identify himself, and informed Officer Baker that he was not required to do so. Officer Baker then repeated his demand to see Landeros’s ID.” Landeros again refused. As a result, Officer Baker called for back-up, prolonging the stop. Officer Romero then arrived, and he too asked for Landeros’s identification. The two officers also repeatedly commanded Landeros to exit the car because he was not being compliant.

Landeros eventually did leave the car. At least several minutes passed between Officer Baker’s initial request for Landeros’s identification and his exit from the car. As Landeros exited the car, he saw for the first time pocketknives, a machete, and two open beer bottles on the floorboards by the front passenger seat. Under Ariz. Rev. Stat. Ann. § 4-251, Arizona prohibits open containers of alcohol in cars on public highways. Officer Baker then placed Landeros under arrest.

Landeros was arrested both for possessing an open container and for “failure to provide his true full name and refusal to comply with directions of police officers under Ariz. Rev. Stat. Ann. § 13-2412(A). Under that statute, it is unlawful for a person, after being advised that the person’s refusal to answer is unlawful, to fail or refuse to state the person’s true full name on request of a peace officer who has lawfully detained the person based on reasonable suspicion that the person has committed, is committing or is about to commit a crime.”

The officers handcuffed Landeros as soon as he exited the car. Officer Romero asked Landeros if he had any weapons. Landeros confirmed that he had a knife in a pocket. Officer Romero requested consent to search Landeros’s pockets, and Landeros agreed. During that search, Officer Romero found a smoking pipe and six bullets in Landeros’s pockets.

Landeros was federally indicted for possession of ammunition by a convicted felon, 18 U.S.C. §§ 922(g)(1), 924(a)(2). He moved to suppress the evidence based on the circumstances of the stop, however, the lower federal district court denied the motion. Landeros then entered into a plea agreement that preserved his right to appeal the denials of the two motions. The district court accepted the agreement and sentenced Landeros to 405 days in prison and three years of supervised release. He appealed.

COURT’S ANALYSIS & CONCLUSIONS

The Ninth Circuit held that law enforcement officers may not extend a lawfully initiated vehicle stop because a passenger refuses to identify himself, absent reasonable suspicion that the individual has committed a criminal offense.

The Court reasoned held that because the lower court mistakenly approved the duration of the stop in this case based on United States v. Turvin and wrongfully disregarded Rodriguez v. United States.

“Applying Rodriguez, we shall assume that Officer Baker was permitted to prolong the initially lawful stop to ask the two women for identification, because he had reasonable suspicion they were underage. But the several minutes of additional questioning to ascertain Landeros’s identity was permissible only if it was (1) part of the stop’s “mission” or (2) supported by independent reasonable suspicion.”

The Ninth Circuit also held that any extension of the traffic stop to investigate those matters was an unlawful seizure because there was no evidence that the officer had a reasonable suspicion that the defendant was out past his curfew or drinking underage. As a result, the record does not demonstrate that Officer Baker had a reasonable suspicion that Landeros was out past his curfew or drinking underage. Any extension of the traffic stop to investigate those matters was an unlawful seizure under the Fourth Amendment.

Furthermore, the Ninth Circuit rejected the government’s arguments that the defendant’s refusal to identify himself provided reasonable suspicion of the additional offenses of failure to provide identification and failure to comply with law enforcement orders.

The Court reasoned that here, the officers insisted several times that Landeros identify himself after he initially refused, and detained him while making those demands. “At the time they did so, the officers had no reasonable suspicion that Landeros had committed an offense,” said the Ninth Circuit. “Accordingly, the police could not lawfully order him to identify himself. His repeated refusal to do so thus did not, as the government claims, constitute a failure to comply with an officer’s lawful order . . .” Consequently, reasoned the Ninth Circuit, there was therefore no justification for the extension of the detention to allow the officers to press Landeros further for his identity.

The Ninth Circuit concluded that there was therefore no justification for the extension of the detention to allow the officers to press the defendant further for his identity. It reasoned that the bullets the defendant was convicted of possessing cannot be introduced at trial because he was ordered from the car as part of the unlawfully extended seizure and subsequently consented to a search of his pockets. Furthermore, because the stop was no longer lawful by the time the officers ordered the defendant to leave the car, the validity (or not) of the police officer’s order to exit the vehicle did not matter.

Good opinion.