Category Archives: Uncategorized

Cell Site Location Info

Bellingham Defense Attorney, Burglary, Cell Phone, Mount Vernon Criminal Defense Attorney, Possession of Stolen Property, Search and Seizure, Search Warrant, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,
Find Your Nearest Cell Tower in Five Minutes or Less: 2021 Edition
In State v. Denham, the WA Supreme Court held there was a sufficient nexus between the defendant’s seized phone records and the suspected criminal activity to support the issuance of a search warrant.
BACKGROUND FACTS
A valuable diamond was stolen from a jewelry store. Within days, the Defendant Mr.  Denham sold that diamond. Police suspected Denham committed the burglary and got a warrant for his cell phone records. Cell site location information included in those phone records placed Denham’s phone near the jewelry store around the time of the burglary.
Mr. Denham was charged and ultimately convicted with second degree burglary and first degree trafficking in stolen property. At Denham’s bench trial, The trial judge cited the
fact that Denham had made phone calls that were routed through the cell tower in
the parking lot of the jewelry store around the time of the burglary. Ultimately, the trial judge found Denham guilty as charged.
Mr Denham appealed his case to the WA Court of Appeals. He challenged the admissibility of the search warrant and the evidence it produced. His argument was that the warrant based on generalizations and did not establish that evidence of wrongdoing would likely be found in his phone records. The WA Court of Appeals agreed with Mr. Denham. The State, however, filed its own appeal. And Mr. Denham’s was heard in the WA Supreme Court.
COURT’S ANALYSIS & CONCLUSIONS
The WA Supreme Court began by discussing the admissibility of cell phone records.
“Our constitutions protect individual privacy against state intrusion,” said Justice Gonzalez, who authored the opinion.  He said that under the U.S. Constitution and WA State Constitution, police must have either the authority of a warrant or a well-established exception to the warrant requirement to lawfully intrude into an individual’s private affairs.
“This constitutional protection extends to cell phone location information held by cell phone companies,” said Justice Gonzalez.  He acknowledged that time-stamped data contained in cell phones provides an intimate window into a person’s life, revealing not only his particular movements, but through them his familial, political, professional, religious, and sexual associations.
Next, Justice Gonzalez described how a search warrant should be issued only if it shows probable cause that the defendant is involved in criminal activity and that evidence of the criminal activity will be found in the place to be searched. “There must be a nexus between criminal activity and the item to be seized and between that item and the place to be searched,” he said. “The warrant must also describe with particularity the place to be searched and the things to be seized.”
With that, Justice Gonzalez reasoned that the search warrant affidavits were proper:
“These affidavits present reasonable grounds to believe that the phones associated with the phone numbers belonged to Denham based on Denham’s own use of the numbers with his probation officers and with various businesses, that Denham had the phones around the time of the burglary because of specific facts suggesting he had the phones days before and after the date in question, that Denham burgled the store, and that Denham trafficked distinctive pieces stolen from the store. They also allege that Denham had both phones at the time of the burglary and used one to arrange the sale of the diamond that was the basis of the trafficking charge.
Taken together, this is sufficient to raise a reasonable inference that evidence of burglary would be found in the cell site location information . . . The fact that there are some generalizations in the inferential chain does not defeat the reasonableness of the inference.” ~Justice Gonzalez, WA Supreme Court
Justice Gonzalez concluded by holding that the search warrant contained sufficient detail to conclude that evidence of a crime would more likely than not be found in the cell site location information in telephone company records of Denham’s cell phones.
Accordingly, the WA Supreme Court reversed the Court of Appeals and affirmed Denham’s convictions.

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.

Right to Present A Defense

Bellingham Defense Attorney, DNA, ER 401, ER 402, felony, Mount Vernon Criminal Defense Attorney, Rape, Sex Crimes, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Criminal Defendant Constitutional Rights- New Mexico Criminal Law

In State v. Cox, the WA Court of Appeals held that the trial court mistakenly excluded evidence pursuant to the Rape Shield Statute  that the victim flirted with the defendant and sat on his lap at the party where the unlawful sexual contact occurred.

BACKGROUND FACTS

The incident occurred in the early morning hours at the complaining witness’s house after her birthday party. The complaining witness testified that after she fell asleep in her bed, she was awakened by the defendant digitally raping her. The State presented evidence that Mr. Cox’s DNA was found on the complaining witness’s undergarments.

Mr. Cox denied the accusation entirely and testified that the complaining witness was intoxicated and that he had rejected her advances. Nevertheless, he was charged and convicted of Rape in the Second Degree.

COURT’S ANALYSIS AND CONCLUSIONS

The Court of Appeals reasoned that the Rape Shield Statute does not apply to behavior that is contemporaneous with the alleged rape. Here, the victim flirted with the defendant and sat on his lap at the party. That evidence should not have been suppressed. In addition, the statute does not apply to evidence, which was offered to explain how the victim’s intoxication affected her behavior and memory of that night and that there may have been an innocent explanation for the DNA transfer.

“The excluded evidence in this case was not past behavior; it was contemporaneous with the alleged rape. Nor was it being introduced to show consent. And while it was being introduced to discredit the victim’s credibility, the focus was on her level of intoxication, not on allegations of promiscuity. Thus, application of the Rape Shield Statute in these circumstances was untenable and an abuse of discretion.” ~ WA Court of Appeals.

The Court also decided the trial court wrongfully suppressed evidence of the alleged victim’s behavior with the Defendant at the party:

“Evidence that the victim was highly intoxicated, acting in a manner that was uncharacteristically flirtatious, and sitting on Mr. Cox’s lap in a dress, was ‘highly relevant’ to his theory of the defense. The prejudicial value of this evidence, if any, was low.” ~ WA Court of Appeals.

Also, the Court of Appeals reasoned that the trial court erred by sustaining an objection to a hypothetical question that defense posed to the State’s DNA expert during cross-examination. Here, Mr. Cox tried to present expert testimony evidence that it was possible for his DNA to be transferred to the complaining witness’s underwear through innocent, non-sexual contact such as sitting on his lap. The Court of Appeals disagreed, and held that an expert witness may be cross-examined with hypotheticals yet unsupported by the evidence that go to the opponent’s theory of the case.

“The lap-sitting incident provides an explanation as to how Mr. Cox’s DNA might have been transferred to the complaining witness. The witness’s inability to recall this incident calls into question her ability to remember other events from that night. And her flirtatious behavior with Mr. Cox supports his version of events.” ~ WA Court of Appeals.

Next, the Court of Appeals reasoned the trial court’s exclusion of the Defendant’s reputation evidence on the particular character trait of sexual morality was wrong. “Contrary to the trial court’s position, “this type” of evidence is explicitly
admissible under ER 404(a)(1),” said the Court.

With that, the Court of Appeals concluded that the trial court’s errors mentioned above were not harmless. It reversed Mr. Cox’s conviction and remanded for a new trial.

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

COVID-19 Increased Crime

Bellingham Defense Attorney, Coronavirus, felony, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Studies, Uncategorized, Whatcom County Criminal Defense, , , , ,

Crime and the Coronavirus: What You Need to Know | SafeWise

Informative article by reporters Emma Tucker and Peter Nickeas of CNN finds that the U.S. saw a significant crime rise across major cities in 2020 during the Coronavirus Pandemic. Worse, it doesn’t appear to be letting up.

Major American cities saw a 33% increase in homicides last year as a pandemic swept across the country, millions of people joined protests against racial injustice and police brutality, and the economy collapsed under the weight of the pandemic — a crime surge that has continued into the first quarter of this year.

Sixty-three of the 66 largest police jurisdictions saw increases in at least one category of violent crimes in 2020, which include homicide, rape, robbery, and aggravated assault, according to a report produced by the Major Cities Chiefs Association. Baltimore City, Baltimore County and Raleigh, North Carolina, did not report increases in any of the violent crime categories.
It’s nearly impossible to attribute any year-to-year change in violent crime statistics to any single factor, and homicides and shootings are an intensely local phenomenon that can spike for dozens of reasons. But the increase in homicide rates across the country is both historic and far-reaching, as were the pandemic and social movements that touched every part of society last year.
A PERFECT STORM OF FACTORS
Experts point to a “perfect storm” of factors — economic collapse, social anxiety because of a pandemic, de-policing in major cities after protests that called for abolition of police departments, shifts in police resources from neighborhoods to downtown areas because of those protests, and the release of criminal defendants pretrial or before sentences were completed to reduce risk of Covid-19 spread in jails — all may have contributed to the spike in homicides.
Covid-19 seemed to exacerbate everything — officers sometimes had to quarantine because of exposure or cases in their ranks, reducing the number of officers available for patrol, investigations or protest coverage. It was difficult-to-impossible to keep physical distance during protests.
Through the first three months of 2021, a number of major cities have indicated they are still experiencing high rates of violent crime, according to Laura Cooper, executive director of the Major Cities Chiefs Association. “Some cities are set to outpace last year’s numbers,” she said.

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.

Improper Opinion Testimony

Assault, Bellingham Defense Attorney, felony, Mount Vernon Criminal Defense Attorney, Opinion Testimony, Prosecutorial Misconduct, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Chicago cops reluctantly testify against 1 of their own

In State v. Hawkins, the WA Court of Appeals held that a police officer gave improper opinion testimony regarding the defendant’s guilt and credibility.

FACTUAL BACKGROUND

The Defendant Mr. Hawkins was arrested and charged with assault in the third degree for briefly strangling Mr. Ali, a King County Metro bus driver, over a fare dispute. The incident was witnessed by a passenger who did not speak English and a passenger who saw an argument occur, but did not witness actual physical touching.

The State’s only other witnesses were Deputy Baker and Deputy Garrison, the King County Sheriff’s detective that reviewed Baker’s initial investigation and referred Hawkins’s case for prosecution. Over defense counsel’s repeated objections, the prosecutor tried to elicit opinion testimony from both deputies concerning whether they believed whether the bus driver Ali was a credible witness.

Several of the defense’s objections were sustained, but the court eventually allowed Officer Baker to answer. Although Deputy Baker’s answer was couched in probable cause to arrest, Baker’s answer implied he believed Ali’s version of events over Hawkins.

Deputy Garrison’s answers also gave an opinion about credibility. Garrison stated he would only refer a case for prosecution if there was “some credible ability to prosecute.”

The jury convicted Hawkins as charged.

On appeal, Hawkins contends that the prosecutor committed prejudicial misconduct by eliciting opinion testimony from police witnesses concerning witness credibility.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals reasoned that a prosecutor must enforce the law by prosecuting those who have violated the peace and dignity of the state by breaking the law. A prosecutor also functions as the representative of the people in a quasi-judicial capacity in a search for justice.

The Court said the prosecutor owes a duty to defendants to see that their rights to a constitutionally fair trial are not violated. Thus, a prosecutor must function within boundaries while zealously seeking justice.

Also, the Court of Appeals emphasized there are some areas of opinion testimony that are inappropriate in criminal trials.

“This is particularly true when the opinion testimony is sought from law enforcement,” said the Court of Appeals. “Officer testimony has an aura of special reliability and trustworthiness.”

The Court of Appeals said the State’s case was weak.

“There is no question that the State’s case against Hawkins was weak. There was no physical evidence, there was no surveillance footage, and Ali had no visible injuries and declined medical attention. The State offered no firsthand witnesses other than Ali.” ~WA Court of Appeals

As a result, the Court reasoned that the State’s case inappropriately focused on the police officers’ opinion of the bus driver Ali’s credibility:

“Because the State’s case was weak, eliciting the officers’ opinions that they believed they had a credible witness in Ali had a clear prejudicial effect on Hawkins’s right to a fair trial.” ~WA Court of Appeals

The Court ruled the Defendant’s case was prejudiced and overturned his conviction.

My opinion? Good decision. A prosecutor functions as the representative of the people in the search for justice. The prosecutor also owes a duty to defendants to see that their rights to a constitutionally fair trial are not violated.

It is inappropriate in a criminal trial for the prosecutor to seek opinion testimony as to the guilt of the defendant, the intent of the accused, or the credibility of witnesses. This is particularly true where the opinion sought is that of a law enforcement officer.

Please review my Legal Guide on Prosecutorial Misconduct for more information on this subject. And please contact my office if you, a friend or family member face criminal charges. Hiring an experienced and competent defense attorney is the first and best step toward justice.

Prosecutor’s “War On Drugs” Comments Deprived Defendant of a Fair Trial

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, felony, Jury Trial, Mount Vernon Criminal Defense Attorney, Prosecutorial Misconduct, Skagit County Criminal Defense, Uncategorized, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Is It Time To End The War on Drugs? Senator Cory Booker Thinks So. - DailyClout

In State v. Loughbom, the WA Supreme Court held that the Prosecutor’s comments during trial advocating the “War on Drugs” amounted to Prosecutor Misconduct and deprived the defendant of a fair trial.

FACTUAL BACKGROUND

In May 2017, Mr. Loughbom was charged with three counts of various drug crimes. In October of 2017, Loughbom’s case proceeded to jury trial.  During trial, the prosecutor referenced the “War on Drugs” three times:

1. During his opening statement, the prosecutor said, “The case before you today represents yet another battle in the ongoing war on drugs throughout our state and throughout our nation as a whole. I’ve been tasked with presenting the evidence against the defendant, Gregg Loughbom, of the crimes of Delivery and Conspiracy to Deliver a Controlled Substance.”

2. The prosecutor began his closing argument by stating, “The case before you represented another battle in the ongoing war on drugs throughout our state and the nation as a whole. I have been tasked with presenting the evidence against the defendant, Gregg Loughbom, of the crimes of delivery of controlled substances . . . and conspiracy to deliver a controlled substance.”

3. During the State’s rebuttal argument, the prosecutor stated that “law enforcement cannot simply pick and choose their Confidential Informants to be the golden children of our society to go through and try and complete these transactions as they go forward in the, like I said, the ongoing war on drugs in this community and across the nation.”

Although the jury found Mr. Loughbom not guilty of one drug charge, he was found guilty of delivery of methamphetamine and conspiracy to deliver a controlled substance other than marijuana. The trial court sentenced Loughbom to 40 months in prison and 12 months of community custody.

Loughbom appealed on arguments that the prosecutor’s repeated comments about the war on drugs constituted flagrant and ill intentioned misconduct.

COURT’S ANALYSIS & CONCLUSIONS

The Supreme Court began by saying We presume prosecutors act impartially “in the interest of justice.” At the same time, we expect prosecutors to “‘subdue courtroom zeal,’ not to add to it, in order to ensure the defendant receives a fair trial.” State v. Walker, 182 Wn.2d 463, 477, 341 P.3d 976 (2015) (quoting Thorgerson, 172 Wn.2d at 443). Justice can be secured only when a conviction is based on specific evidence in an individual case and not on rhetoric. We do not convict to make an example of the accused, we do not convict by appeal to a popular cause, and we do not convict by tying a prosecution to a global campaign against illegal drugs.

“We agree with Loughbom and hold that the prosecutor’s remarks about the war on drugs were improper and rise to the level of being flagrant and ill intentioned. The prosecutor’s repeated invocation of the war on drugs was a thematic narrative designed to appeal to a broader social cause that ultimately deprived Loughbom of a fair trial.” ~WA SUpreme Court

The Court also reasoned that the prosecutor’s repeated references to the war on drugs were erroneous, and that framing Loughbom’s prosecution as representative of the war on drugs violated his right to a fair trial.

With that, the WA Supreme Court reversed the Court of Appeals and remand for a new trial.

My opinion? Excellent decision. Clearly, the prosecutor’s repeated appeals to the war on drugs caused incurable prejudice. It is deeply troubling that the State employed the war on drugs as the theme of Loughbom’s prosecution and reinforced this narrative throughout his trial.

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

A Snowmobile IS a Motor Vehicle

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Theft of Motor Vehicle, Uncategorized, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Search warrant in Innisfil leads to charges in snowmobile theft ...

In an interesting turn – and a razor-thin 5-4 decision – the WA Supreme Court’s State v. Tucker reversed an earlier decision by the WA Court of Appeals and found that a snowmobile IS, in fact, a “motor vehicle” for purposes of Washington’s Theft of a Motor Vehicle statute.

BACKGROUND FACTS

I recently blogged about this case last year. 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. Therefore, her conviction remained unchanged on the theft of a motor vehicle charge.

Ms. Tucker appealed the conviction. The WA Court of Appeals reversed the lower court. Relying on Barnes, a majority of that court held that the statute criminalizes only theft of “a car or other automobile.”

Apparently, the story didn’t end. This time, the State appealed the case to the WA Supreme Court, who seems to have made a final decision on the matter (for now).

COURT’S ANALYSIS AND CONCLUSIONS

The WA Supreme Court reasoned that the WA legislature defined “motor vehicle” as a self-propelled device that is capable of moving and transporting people or property on a public highway.

The Court reasoned that Washington’s vehicle and traffic laws define “Motor Vehicle” as a vehicle that is self-propelled or a vehicle that is propelled by electric power obtained from overhead trolley wires but not operated upon rails.  Also, “Vehicle” is further defined as a “device capable of being moved upon a public highway and in, upon, or by which any persons or property is or may be transported or drawn upon a public highway.”

“So a motor vehicle is a self-propelled device (a description of its mechanics) that is capable of moving and transporting people or property on a public highway (a description of its function). Where, as here, the legislature has provided a definition, we are not free to create our own.”

It also reasoned that although the trial judge said that a snowmobile is a motor vehicle in part because a snowmobile must be licensed (at least in some situations), the legislature’s definition of “motor vehicle” says nothing about a licensing requirement. “Although such a requirement may provide the courts with a useful test, we cannot simply create a new requirement out of thin air.”

Furthermore, reasoned the Court, a “snowmobile” is a self-propelled device that is capable of moving and transporting people or property on a public highway. Here, the court reasoned that although people generally don’t operate snowmobiles – which are designed for use on snow and ice – on public highways, Washington’s  Snowmobile Act not only makes clear that a snowmobile is capable of moving and transporting people or property on a public highway, at least when the highway is covered with snow or ice, but also makes clear that it is legally permitted to do so.

“In sum, a snowmobile satisfies the definition of “motor vehicle” provided by the legislature.”

Accordingly, the WA Supreme Court reversed the Court of Appeals and affirmed Tucker’s conviction.

Please contact my office if you, a friend or family member face criminal charges like Theft of a Motor Vehicle. Hiring an experienced, competent attorney who knows and understand the law is the first and best step toward justice.

Some Crimes Decreasing Amid COVID-19

Bellingham Defense Attorney, Coronavirus, felony, misdemeanor, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Studies, Uncategorized, Whatcom County Criminal Defense, , , , ,

Coronavirus Quarantines Spark Drop in Crime – for Now | National ...

Great article in Bloomberg by Chris Dolmetsch, Edvard Pettersson and Christopher Yasiejko reports that in the largest U.S. cities, crime has dropped since the Coranavirus Pandemic.

In short, car thefts and store robberies are spiking in some municipalities even as crime overall — especially violent offenses — dropped in 10 of the 20 most populated cities, more than halving in San Francisco alone, according to data analysis from 10 major cities.

“It’s just a reflection of reduced opportunities for these kind of events,’’ said Daniel Nagin, a criminologist and professor of public policy at the H.J. Heinz School of Public Policy and Management at Carnegie Mellon University in Pittsburgh. “In the case of murders, these often occur in public places in bars and things like that. With those kinds of activities shut down there’s less social interaction.

Car theft is surging New York city, up 49% for the week ended April 12 as compared to the same period a year earlier. It’s risen 53% over the past month and more than 63% year to date. Car theft was the only major crime to show an increase in Los Angeles, rising 11.3% for the the 28 days ending April 11 from the previous period.

Burglaries are also on the rise in New York, up 26% year-to-date as compared to the same period in 2019. In the week ended April 12, they more than doubled in the southern half of Manhattan, where many stores are now unoccupied. Burglaries jumped almost 34% in Denver in March amid a growing number of break-ins at marijuana dispensaries. In Philadelphia, burglaries were down 6.7% overall, with residential break-ins falling 25% as more people stay home, but unoccupied businesses were hit hard, with commercial burglary rising 71%.

Robberies and burglaries dropped more dramatically in Los Angeles than some other major U.S. cities, perhaps because it closed non-essential businesses and told people to stay at home earlier than other cities, said Charis Kubrin, a professor of criminology at the University of California, Irvine.

“Property crimes are crimes of opportunity and with most businesses closed, there are simply fewer opportunities.” ~Charis Kubrin, Professor of Criminology

Each of the 10 major cities that provided data are showing a decline in rapes and sexual assaults, with San Francisco posting the biggest drop — more than 50% — as compared to the same period a year earlier.

For the most part, murders are on the decline, and in cities showing a rise the numbers are low to begin with. A 25% increase in Austin, for example, is the result of one additional homicide, with the number rising from four to five.

“There are fewer opportunities for young people to get together . . . So there’s less chance when there’s alcohol involved for arguments to get out of hand and to result in assaults or homicides.” ~Charis Kubrin, Professor of Criminology

According to the article, most cities are showing a decline in assaults, following the trend in other violent-crimes categories. Notably, the drop-off comes even after the release from prison of thousands of non-violent offenders. That may show that many such offenders need not have been put in jail to start with.”

Theft is also down across the board in the cities surveyed.  But Kubrin said the drop in street crime may be followed by an increase in white-collar crime, such as price gauging and online fraud. “Opportunities have shifted from the street to online,” she said.

Please contact my office if you, a friend or family member face criminal charges. Hiring a competent and experienced criminal defense attorney is the first and best step toward justice.

No Interpreter is Court Mismanagement

Assault, Bellingham Defense Attorney, Dismissal, Interpreter, Malicious Mischief, misdemeanor, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Image result for court interpreter

In State v. Jieta, the WA Court of Appeals held that a trial court judge may dismiss a criminal prosecution due to the court’s failure to arrange for an interpreter for all scheduled court hearings.

BACKGROUND FACTS

On May 19, 2015, Mr. Jieta was first arraigned on charges of fourth degree assault and third degree malicious mischief in Snohomish County District Court. The court continued the arraignment after ordering that Jieta be provided a Marshallese interpreter. Over the next 15 months, the court held 14 more pretrial hearings, and the interpreter repeatedly failed to appear telephonically or personally.

On August 26, 2016, Jieta moved under CrRLJ 8.3(b) to dismiss all charges. On September 12, — another hearing where the interpreter failed to appear — the court dismissed all charges with prejudice and found the interpreter’s absences “seriously interfered with Mr. Jieta’s right to representation by counsel.” In short, out of 14 pretrial hearings conducted after the court directed the appointment of a interpreter, the interpreter failed to appear 10 times, appeared by phone – ineffectively – two times, and appeared in person two times. The superior court affirmed the dismissal on the State’s appeal.

The State sought discretionary review in this court, which was granted on the narrow question whether CrRLJ 8.3(b) can apply when court administration mismanages a case.

COURT’S ANALYSIS & CONCLUSIONS

Furthermore, the Court of Appeals explained that CrRLJ 8.3(b) gives courts discretion to dismiss “any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused’s right to a fair trial.” To satisfy the rule, the alleged misconduct “need not be of an evil or dishonest nature; simple mismanagement is sufficient.”

The Court also reasoned that the judiciary has a statutory duty of appointing an interpreter to assist the defendant throughout the proceedings:

“Reliable interpreter services are necessary to secure a non-English speaking defendant’s fair trial rights. Thus, to assist a defendant throughout the proceedings, the interpreter must actually deliver translation services throughout the proceedings.”

The purpose of CrR 8.3(b) is to ensure fairness to defendants by protecting their right to a fair trial. Thus, when mismanagement by court personnel prevents a defendant from receiving reliable interpreter services and effective assistance of counsel for more than one year, the defendant has a viable claim of “governmental misconduct” consistent with the text and purpose of CrRLJ 8.3(b).

Here, the Court of Appeals reasoned that “governmental misconduct” can extend to mismanagement by court administration.

“We need not decide the exact types of court mismanagement that could warrant relief or when dismissal is an appropriate remedy for such mismanagement,” said the Court. “On the record before us, the State does not establish that the trial court erred in its conclusion that CrRLJ 8.3(b) may extend to a court’s administrative mismanagement of its statutory obligation to provide translator services.”

With that, the Court of Appeals affirmed the dismissal of all charges.

My opinion? Good decision.

Court interpreters are important in legal proceedings, especially when criminal charges are involved. Interpreters ensure that defendants fully understand the charges and the proceedings. Indeed, the constitutional right to simply understand the charges and their maximum consequences is captured under the 6th Amendment.

Please contact my office if you, a friend or family member are charged with a crime and they need an interpreter to move forward in their defense. Hiring a competent, experienced attorney is the first and best step toward achieving justice.

Imprisoned At 7-11

Assault, Bellingham Defense Attorney, felony, Harassment, Jury Instructions, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Uncategorized, Unlawful Imprisonment, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Why going to 7-Eleven has become a political act - Los Angeles Times

In  State v. Dillon, the WA Court of Appeals held that in Unlawful Imprisonment charges, the State must prove that the defendant knowingly restrained another person, not that the defendant knowingly acted without legal authority.

BACKGROUND FACTS

On December 21 2017, the soon-to-be victim Mr. Favors entered a 7-Eleven after he got off his bus. Favors encountered the soon-to-be defendant Mr. Dillon standing near the entrance to 7-Eleven. Favors noticed that Dillon had scratches on his face, was bleeding, and intoxicated. Favors thought that Dillon was panhandling and told him he did not have change. Favors continued into the 7-Eleven.

Dillon entered the 7-Eleven 10 to 15 seconds after Favors. Favors finished making his purchase and started walking towards the exit. Dillon was standing three feet in front of the exit. Dillon told Favors in a slurred voice to “get your ass back over there” and threatened to cut and shoot him. Favors feared that the situation would escalate and went to the back of the store. Favors tried to leave a second time and Dillon said “I told you one time; get your ass back over there.” Favors, who is African-American, recalled hearing a racial slur. Favors discreetly called 911.

Police arrived and arrested Dillon. At one point he  “reared his head back” and hit a police officer on his forehead and the bridge of his nose. The officer recalled that Dillon was
intoxicated, his balance was poor, and was making incoherent statements.

The State initially charged Dillon with Third Degree Assault of the police officer and Harassment of Favors, but amended the information to include Unlawful Imprisonment of Favors.

The defense requested a jury instruction on Voluntary Intoxication and the State did not object. The jury acquitted Dillon of felony harassment, but convicted him of third degree assault and unlawful imprisonment.

Dillon appealed on the issue of whether State must prove beyond a reasonable doubt that Dillon knowingly acted without legal authority.

COURT’S ANALYSIS & CONCLUSIONS

The State presented sufficient evidence that a reasonable juror could find beyond a reasonable doubt that Dillon knew he was acting without legal authority when he committed the crime of Harassment.

“The threats that Dillon made had no lawful purpose. Depending on the level of intoxication, a person under the influence can still form the requisite intent to know that their actions are unlawful.”

Dillon made threats to “cut” and “shoot” Favors, both of which demonstrate that Dillon knew he was acting without legal authority. Dillon “jumped” at Favors to prevent him from exiting the 7-Eleven, further supporting a finding that Dillon knew his actions were unlawfully restraining Favors.

Regarding the Unlawful Imprisonment conviction, the WA Court of Appeals ruled that Dillon did not say anything that indicated he thought he had legal authority to restrain Favors. Also, the Court denied the argument denied the defense of Escape and held that that Mr. Favors could not have safely departed 7-11 due to Mr. Dillon’s actions:

“Viewed in the light most favorable to the State, Favor’s testimony is sufficient to find, beyond a reasonable doubt, that Dillon restrained Favors’s movement, in a manner that substantially interfered with his liberty through intimidation, threats of violence, and by blocking the 7-Eleven exit.”

With that, the Court of Appeals upheld Dillon’s convictions.

Please contact my office if you, a friend or family member face criminal charges like Assault, Harassment or Unlawful Imprisonment. It’s imperative to hire an experienced and effective criminal defense attorney who knows the law.

Body Camera Evidence Admissible

Assault, Bellingham Defense Attorney, Body camera, Evidence, Firearm, Mount Vernon Criminal Defense Attorney, police, Privacy, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Washington Privacy Act, Whatcom County Criminal Defense, , , ,

Image result for body worn camera

In State v. Clayton, the WA Court of Appeals held that police body camera evidence is admissible at trial. It does not violate Washington’s Privacy Act because police interactions with a suspect and witnesses or victims of the crime are not private conversations.

BACKGROUND FACTS

The charges arose from a visit by law enforcement to a Spokane home. On the evening in question, multiple officers responded to the residence following a report of shots being fired. Mr. Clayton let officers in the residence and consented to a search. There were six people in the residence in addition to the officers who entered. Three officers had active body cameras recording the investigation, but none of the residents were advised of that fact.

An officer discovered two revolvers in a dresser and also observed bullet holes in a couch, wall, and the floor. Upon learning that Mr. Clayton was ineligible to possess the revolvers, officers arrested him for unlawful possession of the weapons. The prosecutor charged two counts of unlawful possession of a firearm based on the October arrest. Clayton’s girlfriend told officers that one month earlier, Clayton had fired a shot in the apartment that struck the couch on which she was sitting.

Ultimately, the prosecutor charged Clayton with one count of second degree assault and one count of unlawful possession of a firearm for the September incident, as well as two counts of unlawful possession of a firearm for the two weapons recovered in October.

After conducting a CrR 3.6 hearing on a defense motion to suppress the recordings, the court permitted the video evidence only to the point where the officer discovered the guns and arrested Clayton. Body camera footage from one of the officers was played for the jury at trial. The jury acquitted Clayton on the assault charge, but convicted him of all three
unlawful possession charges.

COURT’S ANALYSIS

On appeal, Mr. Clayton argues that the police body camera recording was made in violation of the “Privacy Act,” rendering the evidence inadmissible.

The Court of Appeals  ultimately ruled, however, that because the police interaction with Mr. Clayton and his family was not a private conversation, there was no error.

The Court described how the Privacy Act prohibits recording a private communication unless all parties to the communication consent. Consequently, any information obtained from unknown recordings is inadmissible in court.

More specifically, a communication is private under the act when (1) the parties have a subjective expectation that it is private, and (2) that expectation is objectively reasonable.  Among other things, the subject matter of the calls, the location of the participants, the potential presence of third parties, and the roles of the participants are relevant to whether the call is private.

When it comes to body-worn cameras, law enforcement may record people who have been arrested upon (i) informing the person that a recording is being made, (ii) stating the time of the beginning and ending of the recording in the recording, and (iii) advising the person at the commencement of the recording of his or her constitutional rights. In addition, (iv) the recording may be used only for valid police or court activities. Finally, the person must be told that he or she is being recorded. However, there is no requirement that the individual consent to the recording.

In short, the Court reasoned that conversations with uniformed, on-duty law enforcement officers are typically not private conversations.

“People understand that information they provide to officers conducting an investigation is going to turn up in written police reports and may be reported in court along with the observations made by the officers . . . The conversations took place in his apartment, a place where he had some subjective expectation of privacy, but they also occurred in the presence of five others. The subject matter of the visit—a report of a gun being fired and subsequent search for the weapon—was not a private one.”

Consequently, the trial court did not err in denying the defendant’s motion to suppress and upheld his convictions.

Please read my Search & Seizure Legal Guide titled contact my office if you, a friend or family member face criminal charges and the evidence involves recordings from police body-worn cameras. Hiring an effective and competent defense attorney is the first and best step toward justice.