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Celebrate the Fourth of July Responsibly

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, DUI, felony, Knock & Talk, law enforcement, marijuana, misdemeanor, police, Probable Cause, Reasonable Suspicion, Search and Seizure, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , , ,

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When celebrating holidays, many people gather with friends and family, decorating their homes and enjoying time together. However, some holiday celebrations often include consuming substances like illegal drugs and alcohol.

In 2016, Americans spent more than $1 billion on cold beverages for their Fourth of July celebrations. That amount was higher than what was spent on burgers and hotdogs, combined. According to CNBC, the Fourth of July is the country’s largest beer-drinking holiday. The popular holiday also surpassed New Year’s as the most dangerous holiday of the year, especially when it comes to traveling on the roadways. According to the Los Angeles Times, there was an average of 127 fatal car crashes each year on July 4 between 2008 and 2012. Of those who died, 41 percent of people had elevated blood alcohol levels.

So how did the day that was meant to celebrate America’s birthday become a day where people choose to drink? The Fourth of July is a federal holiday, which means that most businesses are closed and the employees of those businesses get to enjoy the day off. Jeffrey Spring, a spokesman for the Automobile Club of Southern California, told the Los Angeles Times that it’s more than just celebrating a day off of work. “They tend to try to cram a lot into these weekends and that’s where they get into trouble,” Spring said. In other words, a paid holiday is taken to new heights due to the excitement of having a free day to themselves.

Some advice? Please remember that beneath all the celebration, the Fourth of July is more than just about alcoholic drinks and setting off fireworks. In 1776, the thirteen American colonies declared themselves independent from the British Empire, thus the United States of America was born. Also known as Independence Day, the day celebrates the birth of the country. It can be commemorated in speeches presented by politicians, celebrities hosting private events, or military personnel saluting the United States at noon on the holiday by shooting off a rifle.

The Fourth of July is important to celebrate for its historical significance. This holiday is a time to remind people not only of the hard work and dedication it took to become the country that the United States is today, but to encourage people to live their lives to their fullest potential.

Don’t let the Fourth of July become a catalyst for illegal behavior.

However, please call my office if you, a friend or family member consume intoxicants this Fourth of July and later find yourselves facing criminal charges. It’s imperative to hire responsive and experienced defense counsel when contacted by law enforcement.

Cell Site Location Information

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

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

BACKGROUND FACTS

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

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

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

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

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

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

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

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

COURT’S ANALYSIS AND CONCLUSIONS

Justice Roberts delivered the majority opinion of the Supreme Court.

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

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

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

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

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

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

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

Outrageous Police Misconduct

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

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

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

BACKGROUND FACTS

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

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

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

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

ISSUE

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

COURT’S ANALYSIS & CONCLUSIONS

As precedent, the Court of Appeals applied the State v. Lively “totality of the circumstances evaluation,” which identifies five factors to be considered by a trial court deciding issues of whether law enforcement engaged outrageous conduct: (1) whether the police conduct instigated a crime or merely infiltrated ongoing criminal activity, (2) whether the defendant’s reluctance to commit a crime was overcome by pleas of sympathy, promises of
excessive profits, or persistent solicitation, (3) whether the government controls the criminal activity or simply allows for the criminal activity to occur (4) whether the police motive was to prevent crime or protect the public, and (5) whether the government conduct itself amounted to criminal activity or conduct repugnant to a sense of justice.

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

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

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

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

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

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

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

ACLU Sues Whatcom County Jail

ACLU, Bellingham Defense Attorney, Constitutional Rights, Jail, Opoids, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , , ,

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Excellent article by Denver Pratt of the Bellingham Herald says the American Civil Liberties Union (ACLU)  filed a federal civil rights lawsuit Wednesday against the Whatcom County Jail and the Whatcom County Sheriff’s Office for allegedly denying inmates with opioid use disorder access to medication.

The lawsuit filed in Seattle in the U.S. District Court for the Western District of Washington alleges the jail’s policy of refusing to provide access to medication assisted treatment to treat opioid addiction violates the Americans with Disabilities Act (ADA).

Pratt reports that Opioid Use Disorder is classified as a disability under the ADA, and is also a recognized substance use disorder. A person qualifies as having opioid use disorder if they meet two or more criteria that reflect impaired health function over a 12-month period.

The lawsuit alleges that the jail has a policy for giving medication, such as buprenorphine (Suboxone or Subutex), or methadone, to pregnant women suffering from opioid use disorder, but has no policy for non-pregnant individuals, forcing them to go into withdrawal once they’re booked.

The lawsuit was brought on behalf of two inmates who were receiving medication assisted treatment before they became incarcerated. However, the ACLU is seeking class-action status for all non-pregnant people incarcerated who have Opioid Use Disorder.

“Defendants’ policy and practice of denying medications to treat opioid use disorder to non-pregnant individuals is both dangerous and discriminatory,” according to the complaint filed in the case.” It singles out a particularly vulnerable group of disabled people, forces them to suffer unnecessarily from painful opioid withdrawal, and subjects them to an increased risk of relapse and overdose death.”

Whatcom County Sheriff Bill Elfo said Thursday he believed several other jails in Washington state are under scrutiny by the ACLU for opioid treatment. He said the county had not been served with the lawsuit yet as of Thursday afternoon, but noted the ACLU has 20 days to do so.

Elfo said the 2019 opening of a new 32-bed crisis triage center for people suffering from mental health and substance use disorders will provide an alternative to taking people who use opioids to jail, and give them access to treatment.

“This is something that’s been asked for for 20 years. I’m glad it’s something that’s finally on the horizon,” he said.

The project will expand the current Crisis Triage Center and will be on Division Street in Bellingham. It will cost up to an estimated $9.5 million.

My opinion?

First, kudos to Ms. Pratt for her excellent and timely reporting.

Second, lawsuits like this reveal the pressing need for Whatcom County to construct a new jail. A larger facility with upgraded services would not only better serve the needs of the incarcerated defendants, but also the jail staff and police officers who work there on a daily basis.

I’ve heard the arguments against a new jail. Clearly – and unfortunately – the community has voted down numerous proposals. What most people don’t understand, however, is that the current jail is decrepit, unsafe and virtually inhumane. As a result, we see riots and suicides happen at the jail with unsettling frequency.

Good luck to the ACLU. Hopefully, they’ll be instrumental toward making positive changes happen for the inmates and hardworking jail staff here in Whatcom County.

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.

Search of Rental Cars

Bellingham Defense Attorney, Drug Offenses, Federal Crimes & Prosecutions, Fourth Amendment, Search and Seizure, Skagit County Criminal Defense, Uncategorized, United States Supreme Court, Whatcom County Criminal Defense, , , , ,

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In Byrd v. United States, the United States Supreme Court held that while a car thief does not have right to privacy in a stolen car no matter the degree of possession and control, the driver of a rental car can challenge a warrantless search of the vehicle even if the driver is not listed as an authorized driver on the rental agreement.

BACKGROUND FACTS

Latasha Reed rented a car in New Jersey while petitioner Terrence Byrd waited outside the rental facility. Her signed agreement warned that permitting an unauthorized driver to drive the car would violate the agreement. Reed listed no additional drivers on the form, but she gave the keys to Byrd upon leaving the building. He stored personal belongings in the rental car’s trunk and then left alone for Pittsburgh, Pennsylvania.

Pennsylvania State Troopers stopped Byrd for a traffic infraction. They learned that the car was rented, that Byrd was not listed as an authorized driver, and that Byrd had prior drug and weapons convictions. Byrd also stated he had a marijuana cigarette in the car.

The troopers proceeded to search the car, discovering body armor and 49 bricks of heroin in the trunk. The evidence was turned over to federal authorities, who charged Byrd with distribution and possession of heroin with the intent to distribute in violation of 21 U. S. C. §841(a)(1) and possession of body armor by a prohibited person in violation of 18 U. S. C. §931(a)(1). The District Court denied Byrd’s motion to suppress the evidence as the fruit of an unlawful search, and the Third Circuit affirmed. Both courts concluded that, because Byrd was not listed on the rental agreement, he lacked a reasonable expectation of privacy in the car.

COURT’S ANALYSIS AND CONCLUSIONS

In a unanimous decision favoring Byrd, Justice Anthony Kennedy wrote, “The mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy.”

The Court added that there can be numerous reasons why a driver unlisted on a rental contract may need to drive the rental car, and that the government had not shown that whether the simple breach of the rental contract would affect the expectation of privacy.

Also, the Court reasoned that one of the main rights attaching to property is the right to exclude others. Also, one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of the right to exclude. “This general property-based concept guides resolution of the instant case,” said Justice Kennedy:

“The Government’s contention that drivers who are not listed on rental agreements always lack an expectation of privacy in the car rests on too restrictive a view of the Fourth Amendment’s protections. But Byrd’s proposal that a rental car’s sole occupant always has an expectation of privacy based on mere possession and control would, without qualification, include thieves or others who have no reasonable expectation of privacy.”

The Court rejected the Government’s arguments that an unauthorized driver has no privacy interest in the vehicle. Byrd, in contrast, was the rental car’s driver and sole occupant. His situation is similar to the defendant in Jones v. United States, who had a reasonable expectation of privacy in his friend’s apartment because he had complete dominion and control over the apartment and could exclude others from it:

“The expectation of privacy that comes from lawful possession and control and the attendant right to exclude should not differ depending on whether a car is rented or owned by someone other than the person currently possessing it, much as it did not seem to matter whether the defendant’s friend in Jones owned or leased the apartment he permitted the defendant to use in his absence.”

The Court also rejected the Government’s argument that Byrd had no basis for claiming an expectation of privacy in the rental car because his driving of that car was so serious a breach of Reed’s rental agreement that the rental company would have voided the contract once he took the wheel. “But the contract says only that the violation may result in coverage, not the agreement, being void and the renter’s being fully responsible for any loss or damage,” said Justice Kennedy. “And the Government fails to explain what bearing this breach of contract, standing alone, has on expectations of privacy in the car.”

Kennedy’s decision concluded that there remained two issues which the Supreme Court remanded back to the lower courts: (1) whether Officer Long had probable cause to search the car in the first place, and (2) whether Byrd intentionally used a third party as a straw man in a calculated plan to mislead the rental company from the very outset, all to aid him in committing a crime.

With that, the Supreme Court vacated Byrd’s conviction and remanded back to the Third Circuit Court of Appeals.

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.

Expert Witnesses & Meth

Bellingham Defense Attorney, Constitutional Rights, ER 702, Evidence, Expert Testimony, felony, Homicide & Manslaughter, Methamphetamine, Self-Defense, Sixth Amendment, Skagit County Criminal Defense, Uncategorized, Violent Crime, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

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In State v. Richmond, the WA Court of Appeals held that a defense expert witness’s proposed testimony regarding the effects of methamphetamine was properly barred at trial because the expert never met or examined the victim and increased aggression is only one possible effect of methamphetamine ingestion.

BACKGROUND FACTS

Dennis Higginbotham went to Joseph Richmond’s property with two other individuals, Veronica Dresp and Lonnie Zackuse. Ms. Dresp was Mr. Richmond’s estranged girlfriend. Ms. Dresp had asked Mr. Higginbotham and Ms. Zackuse to accompany her to Mr. Richmond’s property so that she could remove some of her belongings.

A verbal argument ensued between Mr. Richmond and Mr. Higginbotham. After the verbal argument, Mr. Richmond went into his house. His return to the house was a relief. It appeared the hostility had come to an end.

Unfortunately, this turned out not to be true. Instead, Mr. Richmond ran out of his house, armed with a two-by-four piece of lumber that was nearly four feet in length. Mr. Richmond and Mr. Higginbotham then started exchanging more words. Mr. Richmond warned Mr. Higginbotham not to come any closer to him. When Mr. Higginbotham took a step forward, Mr. Richmond struck Mr. Higginbotham with the two-by-four. According to Ms. Dresp and Ms. Zackuse, Mr. Richmond held the two-by-four like a baseball bat and swung it at Mr. Higginbotham’s head. After he was hit, Mr. Higginbotham spun around and fell face first on the ground.

When emergency personnel arrived at the scene, it was determined Mr. Higginbotham had suffered severe head trauma. He was unconscious and eventually transported to
Harborview Medical Center in Seattle. He died shortly thereafter.

Mr. Richmond was charged with second degree murder.

Mr. Richmond lodged a self-defense theory against the State’s murder charges. In support of this theory, Mr. Richmond sought to introduce testimony from several experts. One of the experts was David Predmore. Mr. Predmore was offered to testify about the general effects of methamphetamine consumption on human behavior. According to the defense, this testimony was relevant because high levels of methamphetamine had been found in Mr. Higginbotham’s system at the time of his death.

Although Mr. Richmond was not aware of Mr. Higginbotham’s methamphetamine consumption at the time of the assault, the defense theorized that Mr. Predmore’s testimony was relevant to corroborate Mr. Richmond’s claim that Mr. Higginbotham was behaving aggressively the night of the attack. However, the trial court excluded Mr. Predmore’s testimony as speculative and irrelevant. The jury convicted Mr. Richmond of second degree murder. He appealed.

ISSUE

On appeal, the issue was whether the trial court violated Mr. Richmond’s constitutional right to present a defense by excluding his expert’s testimony.

COURT’S ANALYSIS & CONCLUSIONS

“Mr. Richmond argues the trial court violated his constitutional right to present a
defense by excluding expert testimony,” said the Court of Appeals. “We disagree.”

The Court of Appeals reasoned that Evidence Rule 702 governs the admissibility of expert testimony. “Under this rule, a witness may provide expert opinion testimony to the jury if (1) the witness is qualified as an expert, and (2) the witness’s testimony would help the trier of fact,” said the Court of Appeals.

“Expert testimony is helpful if it concerns matters beyond the common knowledge of the average layperson and does not mislead the jury. A proposed expert’s testimony is not helpful or relevant if it is based on speculation.”

Furthermore, the Court of Appeals reasoned that the trial court properly excluded Mr. Predmore’s proposed testimony regarding the effects of methamphetamine because it was not shown to be potentially helpful to the jury. “Mr. Predmore had never met or examined Mr. Higginbotham. He had no basis to assess how Mr. Higginbotham’s body may have processed methamphetamine,” said the Court of Appeals. It further reasoned that according to Mr. Predmore’s proposed testimony, methamphetamine can have a wide range of effects. Increased aggression is only one possibility. “It is therefore nothing but speculation to connect Mr. Higginbotham’s methamphetamine use with Mr. Richmond’s claim of victim aggression,” said the Court of Appeals. “The evidence was properly excluded, consistent with long standing case law.”

With that, the Court of Appeals upheld the conviction.

Please contact my office if you, a friend or family member are charged with a crime after responding in self-defense. Hiring competent and experienced counsel is the first step toward receiving a just resolution.

Felony Harassment (DV)

Bellingham Defense Attorney, Constitutional Rights, Domestic Violence, felony, Harassment, Right to Present A Defense, Sixth Amendment, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

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In State v. Horn, the WA Court of Appeals held that the trial court’s refusal to admit evidence of the defendant’s and the victim’s engagement and trip taken after the date of a domestic violence offense did not violate the defendant’s Sixth Amendment rights.

BACKGROUND FACTS

Horn and Ms. Oubre became romantically involved while Oubre was estranged from another man with whom she had had a relationship. Horn and Oubre began openly dating in January 2015.

In January 2015, Horn and Oubre were at Oubre’s residence drinking alcoholic beverages. While Oubre was using her cellphone, Horn grew angry and accused her of texting the man with whom she had been involved. According to Oubre, she had never seen him have “an episode like this before.” Horn grabbed Oubre’s night shirt and ripped it open, hitting her on the chest in the process.

Scared that the downstairs neighbor would hear the scuffle, Oubre and Horn went to Horn’s home. Once they arrived and got out of the car, Oubre told Horn that she was going to leave, but Horn grabbed her. They began wrestling when Horn pushed her against a wall and down into a flower bed. He bit her multiple times. Oubre did not call the police.

On August 7, 2015, Horn and Oubre were together at her home. Oubre was on her cell phone playing a game. Horn grew aggressive, believing that Oubre was texting an ex-boyfriend. A violent exchange occurred between Horn and Oubre. Horn straddled Oubre on the bed, pointed a gun at himself and Oubre, and gave numerous threats against her life.

Later, Oubre went to the hospital. She spoke with the police while at the hospital, and Horn was then arrested. Among other offenses, Horn was charged with Felony Harassment (DV) based on the August incident. Horn posted bail on August 20, 2015.

Oubre and Horn got engaged on September 5 and took a trip together.

Horn was later charged with violating a no-contact order, to which he pled guilty. As part of the events related to that charge, videotape evidence showed Horn naked while jumping on top of Oubre’s car.

Before trial on the felony harassment charge, the State sought to introduce evidence of
the January 2015 incident under ER 404(b) to show that Horn’s threat to kill Oubre in August 2015 placed her in reasonable fear that the threat would be carried out. One of the elements of felony harassment is that the victim be placed in reasonable fear that a threat will be carried out.

Before trial, both the State and defense counsel argued over whether the evidence of the January 2015 incident should be admitted. The defense objected and in the alternative argued that if the State was permitted to introduce this evidence, the defense should be able to introduce evidence of Oubre and Horn’s engagement and trip after August 2015. In the defense’s view, this evidence showed that Oubre did not have a reasonable fear that Horn would carry out his threat to kill her on August 7.

The State opposed the admission of evidence of their engagement and trip because “it triggers a bunch of things,” including Horn’s later violation of a no-contact order where he was naked and jumping on top of Oubre’s vehicle. The State also did not believe the evidence was relevant to whether Oubre was fearful in August 2015.

The jury found Horn guilty of two counts of fourth degree assault, unlawful possession of
a firearm, and domestic violence felony harassment. Horn appealed. He argued that his Sixth Amendment right to present his defense was violated because the trial court did not admit evidence of Oubre and Horn’s engagement and trip taken after the August 2015 incident.

COURT’S ANALYSIS & CONCLUSIONS

“We review a Sixth Amendment right to present a defense claim under a three-step test,” said the Court of Appeals. First, the evidence that a defendant desires to introduce must be of at least minimal relevance. A defendant only has a right to present evidence that is relevant. Second, if relevant, the burden shifts to the State to show that the relevant evidence is so prejudicial as to disrupt the fairness of the fact-finding process at trial. Third, the State’s interest in excluding prejudicial evidence must also be balanced against the defendant’s need for the information sought, and relevant information can be withheld only if the State’s interest outweighs the defendant’s need.

The Court reasoned that to show a violation of the right to present a defense, the excluded evidence, that of Horn and Oubre’s engagement and trip, must first be of at least minimal relevance. Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. The threshold to admit relevant evidence is very low.

Impeachment evidence is relevant if: (1) it tends to cast doubt on the credibility of the person being impeached and (2) the credibility of the person being impeached is a fact of consequence to the action.

The court reasoned that here, Oubre’s subsequent engagement and trip with Horn thus would be relevant, if at all, to impeach her testimony that she feared Horn at the time he threatened to kill her.

“With the frightening nature of the threats and violence against Oubre on August 7 and the passage of nearly a month until their engagement, Oubre’s change of heart casts little doubt on her testimony that on August 7, in the face of repeated violence and death threats, she feared for her life.”

The court said that for these reasons, especially in combination with the cycles of violence and reconciliation in domestic violence relationahips, the evidence of Oubre’s engagement to and trip with Horn was not relevant.

“The trial court’s exclusion of that evidence was neither manifestly unreasonable, based on untenable grounds, nor based on untenable reasons,” said the Court of Appeals. “Thus, under the abuse of discretion standard, the exclusion of this evidence did not deprive Horn of his right to present a defense.” Furthermore, because Horn does not meet the first requirement of the three-step test, his claim that the trial court deprived him of the right to present a defense fails.

With that, the Court of Appeals ruled that Horn’s right to present a defense was not violated. Therefore, his convictions were affirmed.

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.

Warrantless Search & “Community Caretaking”

Bellingham Defense Attorney, Community Caretaking, Constitutional Rights, felony, Firearm, Fourth Amendment, Homicide & Manslaughter, law enforcement, Search and Seizure, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Know Your Rights: Can You Be Searched Without a Warrant? | legalzoom.com

In State v. Boisselle, the WA Court of Appeals held that the officers’ warrantless entry into a duplex was lawful as the officers were worried that someone might be injured or dead inside, the officers were unable to locate the individuals who were believed to being living in the duplex, the officers did not intend to conduct a criminal investigation inside the duplex, and from the time the officers arrived at the duplex, until entry, the officers individually and collectively worked to ascertain the situation.

BACKGROUND FACTS

In July 2014, Michael Boisselle encountered Brandon Zomalt, an old acquaintance. Zomalt told Boisselle that he was homeless, had nowhere to sleep, and that he needed assistance obtaining a food handler’s permit in order to secure a job. Boisselle offered to let Zomalt stay with him in his duplex unit. With Boisselle’s assistance, Zomalt received his food handler’s permit and began working at a nearby restaurant. However, Zomalt was fired after one week for fighting at work.

Zomalt was addicted to alcohol and methamphetamine. He also had a history of violence. Several people, including Zomalt’s mother and two of his former girlfriends, had been granted protection orders against him. After losing his job, Zomalt drank throughout the day. Boisselle did not feel safe around Zomalt and avoided him when possible.

The tension in the house culminated into a confrontation. Apparently, Zomalt began to behave strangely. He also drank heavily. One night, Boiselle and Zomalt were home. According to Boiselle, Zomalt held him hostage in their home and threatened Boiselle with a firearm. Later that night, Boiselle managed to reach the gun. He fired the weapon at Boiselle, apparently in self-defense. No witnesses summoned police or heard the firearm.

On September 1, 2014, South Sound 911 dispatch received an anonymous telephone call from an individual who reported that “somebody by the name of Mike” stated that he shot someone at the duplex. Shortly thereafter, the Puyallup Police Department anonymous tip line received a telephone call from an individual who reported that “Mike” had “shot someone” and “possibly killed him, and it was in self-defense.” Deputies Ryan Olivarez and Fredrick Wiggins were dispatched to the scene.

Olivarez and Wiggins knocked on the door of the duplex but received no response. There was, however, a dog inside that was barking aggressively. The deputies walked around the outside of the duplex and attempted to look inside, but all of the windows were closed and covered with blinds. There was a light on in the upstairs western bedroom. The deputies smelled a foul odor coming from the house and the garage. Olivarez thought that “something about it just seemed off’ and was concerned with “trying to figure out if someone needed help.” Olivarez and Wiggins then contacted the neighbors in order to gather more information. Two neighbors informed the deputies that they had not seen anyone coming or going from the duplex for about “four or five days.”

With no person apparently able to consent to a police entry of the unit and believing that they did not have a sufficient basis to obtain a search warrant, Adamson and Clarkson made a joint decision to force entry into the duplex. Clarkson broke through the front door. An animal control officer secured the dog. The officers then performed a security sweep of the duplex, looking for anyone who was hurt. Adamson and Clarkson searched the second floor of the duplex while Wiggins and Olivarez searched the first floor. The officers checked all of the rooms, looking in closets and other large spaces for a person or a body but ignoring drawers and other areas where a person could not fit.

Sergeant Clarkson believed that the smell was coming from inside of the garage and was consistent with a dead body. Once all of the rooms inside the duplex had been checked, deputies Wiggins and Olivarez forced entry into the garage from inside of the duplex. Once inside the garage, all four officers could see a large, rolled up carpet with a shoe sticking out and maggots pouring out of the bottom. Sergeant Clarkson opened the garage door using the automatic door opener and all four officers went around to the outside of the garage for a clear view of the carpet. From outside of the house, the officers saw an arm hanging out of the front end of the carpet. Clarkson told the other officers that “this is a crime scene now,” and that “it’s time we have to seal this off.” None of the officers collected evidence or touched the carpet.

Boisselle was charged with second degree murder and unlawful possession of a firearm. Before trial, he argued a CrR 3.6 motion to suppress. The judge denied the motion. At trial he was convicted of both charges.

On appeal, and among other issues Boisselle contends that the trial court erred by denying his motion to suppress the search of his home.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that the United States Constitution prohibits unreasonable searches and seizures. “The Fourth Amendment does not prohibit ‘reasonable’ warrantless searches and seizures,” said the Court. Furthermore, the Court said the analysis under the Fourth Amendment focuses on whether the police have acted reasonably under the circumstances.

Additionally, the Court explained that Article 1, section 7 of the Washington Constitution is more protective than the Fourth Amendment, particularly where warrantless searches are concerned. “Article 1, section 7 provides that ‘no person shall be disturbed in his private affairs, or his home invaded, without authority of law,'” said the Court.  The WA Constitution also prohibits any disturbance of an individual’s private affairs without authority of law. The Court said this language prohibits unreasonable searches.

However, the Court also explained that a search conducted pursuant to a police officer’s community caretaking function is one exception to the warrant requirement; and the community caretaking function was first announced by the United States Supreme Court in Cady v. Dombrowski. From there, subsequent Washington cases have expanded the community caretaking function exception to encompass not only the search and seizure of automobiles, but also situations involving either emergency aid or routine checks on health and safety.

Here, the court reasoned the police officers rightfully conducted a community caretaking search under the circumstances:

“In any event, the record establishes that the officers acted promptly given the circumstances. From the moment they arrived at the duplex, until entry, the officers individually and collectively began to ascertain the situation at hand. This included checking doors and windows to determine whether anyone was inside the duplex, contacting both the owner of the duplex and the individual listed on the lease in attempts to obtain consent to enter, questioning neighbors, and contacting animal control.”

The Court emphasized that, ultimately, the officers reached a point where two things were clear: (1) obtaining consent to enter was not possible as no person entitled to consent could be identified, and (2) there was nothing further the officers could do to discern the welfare of any person inside the unit absent entry. “At this point, the officers reasonably concluded that forcible entry was necessary to determine the need for and to render assistance. Given the circumstances, this was an immediate response to a likely emergency,” said the Court.

Finally, the Court reasoned the officers’ warrantless search of the duplex was justified pursuant to the community caretaking function exception as considered by a majority of the Supreme Court in State v. Smith.

“Accordingly, the trial court did not err by denying Boisselle’s motion to suppress,” said the Court of Appeals. With that – and following discussion of other issues – the Court of Appeals affirmed Mr. Boisselle’s conviction.

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.

Jail Mail

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Amazon.com: Jail Mail: Appstore for Android

In State v. Irby, the WA Court of Appeals held that an inmate’s 6th Amendment rights were violated and has case was prejudiced when jail guards opened and read his confidential “jail mail” letters written to his defense attorney.

BACKGROUND FACTS

In April 2005, Irby was charged with one count of burglary in the second degree, alleged to have occurred on March 6, 2005, and the following counts alleged to have occurred on March 8, 2005: one count of aggravated murder in the first degree with an alternative allegation of first degree felony murder, one count of burglary in the first degree, one count of robbery in the first degree, three counts of unlawful possession of a firearm in the first degree, and one count of attempting to elude a police vehicle. The latter charges arose out of a robbery and bludgeoning death.

In January 2007, a jury found Irby guilty of murder in the first degree with aggravating circumstances, felony murder in the first degree, and burglary in the first degree. Four years later, the Washington Supreme Court reversed the judgment of conviction and remanded the cause for a new trial in light of the court’s determination that Irby’s due process rights had been violated during jury selection. See State v. Irby, 170 Wn.2d 874, 246 P.3d 796 (2011).

Irby’s retrial was held in 2013. The State prosecuted the same charges that were brought during the first trial and Irby was convicted as charged. Notably, at the retrial, Irby was allowed to proceed pro se. He also voluntarily absented himself from the trial. We subsequently reversed the judgment of conviction and remanded the cause for yet another new trial because the trial judge had erroneously seated a juror who had demonstrated actual bias against Irby during voir dire.

In March 2016, pretrial proceedings began for Irby’s third trial. He was represented by a public defender. In mid-March, the State filed an amended information charging Irby with one count of premeditated murder in the first degree and one count of burglary in the first degree. Two days later, Irby appeared in court and was arraigned on the charges. He entered pleas of not guilty.

In mid-March and again in late March, Irby requested to represent himself. Following a colloquy with the trial court in mid-April, Irby’s request was granted. Four months later, Irby filed a pro se motion to dismiss the charges against him. In his motion, Irby alleged misconduct by jail guards, claiming that (during the period of time during which his public defender represented him) they had improperly opened outgoing mail containing privileged legal communication intended for his attorney.

The trial court denied Irby’s motion. The trial court did determine that the jail guards had violated Irby’s right to counsel by opening and reading privileged attorney-client communications. Although Irby argued that the trial court’s determination mandated that a presumption of prejudice be imposed, the trial court placed on Irby the burden of proving prejudice and concluded that he did not do so.

One month later, Irby informed the trial court that he had decided not to attend the trial and waived his right to be present at trial.

After a jury was selected without Irby’s participation, the evidentiary stage of Irby’s third trial began. Irby did not attend the trial. The State presented its case in chief and gave closing argument. No defense or closing argument were presented on Irby’s behalf.

The jury returned verdicts finding Irby guilty as charged. Irby was sentenced to concurrent terms of incarceration of 388 months for the murder in the first degree conviction and 54 months for the burglary in the first degree conviction.

ISSUES

1. Did a State actor participate in the infringing conduct alleged by the defendant?

2. If so, did the State actor(s) infringe upon a Sixth Amendment right of the defendant?

3. If so, was there prejudice to the defendant? That is, did the State fail to overcome the presumption of prejudice arising from the infringement by not proving the absence of prejudice beyond a reasonable doubt?

4. If so, what is the appropriate remedy to select and apply, considering the totality of the circumstances present, including the degree of prejudice to the defendant’s right to a fair trial and the degree of nefariousness of the conduct by the State actor(s)?

COURT’S ANALYSIS & CONCLUSIONS

First, the Court of Appeals decided  the “State actors” engaged in misconduct.

“Irby’s motion to dismiss alleged that the confrontation between himself and the State involved conduct by jail guards employed by the county jail in which he was being housed,” said the Court of Appeals. “Thus, Irby established that the conduct underlying his claim involved State actors.”

Second, the Court decided  that the jail guards’ conduct infringed upon his Sixth Amendment right.

“Plainly, a defendant’s Sixth Amendment right to assistance of counsel is violated when the State intrudes into a privileged attorney-client communication,” said the Court of Appeals.

The court reasoned that here, Irby’s motion to dismiss—and accompanying exhibits and addendum—alleged that he had sent 14 pieces of confidential correspondence containing privileged information to his attorney that, he argued, had been improperly opened and read by jail guards in the Skagit County Jail. The correspondence constituted Irby’s handwritten statements on both a “Public Defender Request Form” and jail kites—multi-purpose request forms available to inmates in the Skagit County Jail.

Prior to sending the correspondence, Irby folded each piece of paper in half, sealed each piece of paper with tape, and written on the outward facing side, “CONFIDENTIAL,” and “ATTORNEY BOX.” Consequently, the Court of Appeals said the folded and taped pieces of paper were intended to be confidential and included privileged attorney-client information. “Thus, the aforementioned correspondence from Irby to his counsel contained privileged attorney-client information protected by the Sixth Amendment.”

Third, the Court of Appeals held that the  jail guards’ opening and reading of Irby’s privileged attorney-client correspondence infringed upon his Sixth Amendment right to counsel. The parties do not dispute the trial court’s finding that jail guards had opened and read Irby’s privileged attorney-client communications. “Thus, the jail guards—and therefore the State—infringed on Irby’s Sixth Amendment right to counsel. This constitutes misconduct, within the meaning of CrR 8.3.”

Finally, the Court of Appeals decided Irby was prejudiced by the misconduct:

“More than half a century ago, our Supreme Court ruled that, when State actors pry into a defendant’s privileged attorney-client communications, prejudice to the defendant must be presumed . . . We must assume that information gained by the sheriff was transmitted to the prosecutor and therefore there is no way to isolate the prejudice resulting from an eavesdropping activity, such as this.”

The Court of Appeals further reasoned that recently, our Supreme Court in Pena Fuentes reaffirmed this ruling and, in light of a State actor’s eavesdropping on privileged attorney-client communications, imposed a presumption of prejudice.

Furthermore, because the State actors here at issue—jail guards—infringed upon Irby’s Sixth Amendment right, prejudice must be presumed. Thus, the trial court erred by not imposing a presumption of prejudice after it determined that the jail guards had opened and read Irby’s communications containing privileged attorney-client information.

With that, the Court of Appeals reversed the order denying Irby’s motion to dismiss and remanded this matter for an evidentiary hearing with instructions to the trial court.

My opinion? Excellent decision by the Court of Appeals. It most certainly violates a defendant’s constitutional rights for state actors like jailers, law enforcement and Prosecutors to read mail from an inmate intended for an attorney.

Please read my Legal Guide titled Making Bail and contact my office if you, a friend or family member face criminal charges and are incarcerated awaiting trial. Being in jail is never wise if it can be avoided. Chances are, a qualified and competent attorney can argue for personal release, lowered bail or convince the judge to release the defendant to a family member who is willing to supervise the defendant’s whereabouts.

Marijuana vs. Alcohol

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Wonderful article by Matthew Martinez of the Miami Herald says that according to new research from Cowen and Company, seven of the nine states that allow adults to legally consume marijuana saw 13 percent fewer binge drinking episodes than non-cannabis states, and 9 percent fewer than the national average. In recreational use states, binge drinkers guzzled 6.6 drinks per binge, compared with 7.4 drinks in non-cannabis states.

“We have consistently argued that cannabis and alcohol are substitute social lubricants,” the report reads. “To be sure, we do not dispute that alcohol will continue to be quite popular in the U.S. (generating over $210 bn in annual retail sales today). We are, however, focused on the marginal alcohol unit, which given the cannabis category’s much smaller size, creates a sizable opportunity for the cannabis industry.”

Nevada and California, the two states to have most recently legalized recreational pot, still had higher rates of binge drinking intensity than Colorado, Washington, Oregon, Maine, Vermont, Massachusetts and the District of Columbia, but the report stated the company expects “mean reversion for these states, too, given the historical precedent.”

People’s decision to switch to marijuana, according to the report, include: outsized switching among younger consumers, shifting risk perceptions among 18- to 25-year-olds, less pressure to generate alcohol tax revenue in legal cannabis states, consumer survey work on alcohol consumption among cannabis consumers, and academic research that concludes medical cannabis weighs on alcohol purchases.

The Wall Street investment firm calls marijuana a viable “substitute social lubricant” for alcohol in the years to come, projecting even greater sales numbers for the industry than previously thought.

“Assuming federal legalization, we believe cannabis can generate gross sales of $75 billion by 2030 (and $17.5 billion in tax revenue),” the report reads. “As cannabis access expands, we expect further pressure on alcohol sales, given this notable divide in consumption patterns.”

A 2015 study published in the Journal of Health Economics and cited by The Washington Post, studying a drop-off in people’s marijuana use and a corresponding spike in their alcohol use once they reach age 21, the age to legally drink in the U.S., concluded that the two substances are indeed substitutes for each other among users.

What Cowen and Company’s more recent research finds is almost the exact inverse of that older study: that as recreational marijuana becomes legal in more and more states, some people are choosing the high from the plant over the the one from the bottle.

A study published in March in the journal Neuropsychopharmacology found that one of the non-psychoactive compounds in marijuana, cannabidiol (CBD), could also help drug addicts and alcoholics from relapsing.

Please contact my office if you, a friend or family member are charged with a crime involving drugs or alcohol. The substantive defenses of Voluntary Intoxication and Diminished Capacity might be applicable to the specific facts of the case.