Category Archives: United States Supreme Court

Supreme Court Wary of Warrantless Blood Tests in DUI Cases

Blood Test, Constitutional Rights, Department of Licensing, Drug Offenses, DUI, felony, Ignition Interlock Device, law enforcement, marijuana, misdemeanor, police, Search Warrant, Terry Stop, United States Supreme Court, , ,

Miami Police Usually Need a Search Warrant to Draw Your Blood for a DUI

Good stuff. The Supreme Court is considering requiring police to get a search warrant before forcing drunken-driving suspects to have blood draws.

In State of Missouri v. McNeely, the defendant was pulled over for speeding. He failed field sobriety tests and refused to take a breath test. The officer then took McNeely to a nearby hospital, where a technician drew blood over the handcuffed suspect’s objection. The legal issue is whether blood draws taken under these circumstances violate a defendant’s Constitutional rights. If so, the blood test  is suppressed and inadmissible to a jury if the case proceeds to jury trial.

The prosecution argues that getting a nighttime warrant takes an average of two hours, by which point a person’s blood-alcohol level may have dropped below the legal limit.  Alcohol typically dissipates in the bloodstream at a rate of 0.015 to 0.020 percentage points an hour. The limit in Missouri is 0.08 percent.

McNeely’s defense attorney argues that Missouri’s Implied Consent law allows drivers the right to refuse a blood test. All 50 states have implied-consent laws in some form. In short, Implied Consent law says drivers who refuse a blood or breath test automatically lose their license for a year.

My opinion? Police should get warrants. Period. Getting a warrant is the proper remedy when defendants exercise their Constitutional rights. Also, it doesn’t take long to get one. Police can call a judge while driving a defendant to the jail. Judges typically issue warrants over the phone.

Due to the passage of I-502, this issue is especially relevant in WA. I-502 allows for citizens to possess small amounts of marijuana. Unfortunately, when it comes to DUI arrests, I-502 set the legal limit for THC is the bloodstream at only 5 nanograms. This is a very low amount, especially for citizens who are licensed to smoke marijuana.

In other blogs I predicted that the passage of I-502 would probably convince law enforcement to immediately transport citizens investigated for DUI straight to the hospital to undergo blood tests. Blood draws are necessary to determine nanogram levels (they also detect alcohol levels). I also predicted that unlawfully obtained blood tests would soon become the subject matter of intense pretrial litigation.

Was the officer trained in drug DUI detection? Was the blood draw performed by someone who is medically licensed? Was it performed within 2 hours of the defendant being pulled over? Was the blood test tampered with? Can the prosecution properly establish the chain of custody of all persons who handled the blood sample? And now, according to the above case, can law enforcement simply circumvent the warrant requirement and obtain blood draws if the defendant refuses?

All of these issues are the subject matter of intense legal arguments. A good trial attorney will argue pretrial motions to suppress unlawfully obtained and/or tainted evidence. Yes, this pending case is a big deal.

We’ll see what happens. . .

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

State v. Adams: The WA Supremes On a Hot Roll With Yet ANOTHER Decision re. Illegal Car Searches

Constitutional Rights, Drug Offenses, Exigent Circumstances, felony, Jail, law enforcement, police, Privacy, Search and Seizure, Terry Stop, United States Supreme Court, Washington State Patrol, Washington Supreme Court, , ,

Can the Police Legitimately Search My Vehicle Without a Warrant? - FindLaw

“1-2-3!”

You hear this shouted in fight gyms and boxing matches around the world.  It’s a quick, concise statement of one of the deadliest 3-punch combinations in the sport.   It’s a left jab, followed by a right cross and ending with a left hook (consider opposite hands if you’re southpaw).  The jab opens the opponent’s defense and establishes punching range.  The right cross – your power hand – does damage.  The coup de gras left hook should result in more major pain, a knockdown or knockout; especially if ANY of the punches land flush on the chin or temple.  At any rate, somebody is getting hurt.  Or put to sleep.

For the month of August, the WA Supremes issued a 1-2-3 combination with State v. Tibbles, State v. Afana and now State v. Adams; all three decisions upholding the U.S. Supreme Court’s Arizona v. Gant which held that police may search a vehicle incident to arrest “only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.”

Lat’s talk about State v. Adams.  On May 24, 2006, Deputy Volpe observed Coryell Adams sitting in a parked car outside a casino.  Volpe checked the license plate number and learned that Adams had an outstanding arrest warrant for driving with a revoked license.

Volpe followed Adams as he drove to a Taco Bell parking lot.  Volpe drove onto the same lot, activated her emergency lights, and parked about eight feet behind Adams’ car.  As she stepped out of her patrol car, Adams stepped out from his car, stood near the driver’s side door and began yelling at Volpe, challenging the stop as racial profiling.  After Volpe repeatedly ordered Adams back into his car, Adams “took 4-5 steps away from the car” and stepped into an adjacent parking stall where he continued to yell and wave his arms.  At Volpe’s request, another deputy arrived and Adams calmed down.  He was then placed under arrest.

After Adams failed to identify himself, Volpe frisked Adams and removed his keys and his wallet, which contained documents identifying him as the registered owner of the vehicle.  The other deputy unlocked Adams’ car. After Volpe placed Adams in the back of her patrol car and read him his rights, she searched his vehicle and found a small black bag containing cocaine in the center console.  He was charged with Possession of Cocaine.  The case wound its way into the WA Supreme Court.  During that time, the U.S. Supremes decided Arizona v. Gant, which was alluded to earlier.

Similar to State v. Afana, the State argued the officer acted in “good faith” when arresting Adams.  However, the WA Supremes made short work of the case:

“Our recent decision in Afana resolves this case.  In Afana we rejected the State’s argument that “good faith” reliance on pre-Gant case law constitutes an exception to the exclusionary rule under article I, section 7 of the Washington State Constitution.  We explained the distinction between an officer’s “good faith” reliance on statutes that were subsequently declared unconstitutional to establish probable cause to arrest . . . [B]ecause the State concedes that Gant applies to the search in this case, and because we have declined to recognize a “good faith” exception based on pre-Gant case law in Afana, we reverse the conviction in this case.”

My opinion?  Criminal defense attorneys have reason to raise a glass and toast the WA Supremes.  These decisions are a fitting end to the summer of 2010.  Take notice, prosecutors: Gant and its Washington progeny are here to stay.  These cases won’t be skirted by “exigent circumstances.”  They won’t be distinguished by “good faith.”  Hurray to a new millennium in cases involving car searches and seizures. 🙂

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

State v. Afana: ANOTHER Awesome Decision re. Illegal Car Searches

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, DUI, felony, law enforcement, Methamphetamine, police, Privacy, Search and Seizure, Terry Stop, United States Supreme Court, Washington Supreme Court, , ,

Unreasonable Search and Seizure - Passengers, Tire Chalking, Warrantless Searches

In State v. Afana, the WA Supreme Court held the warrantless search of a vehicle incident to passenger arrest was unlawful, and there is no “good faith” exception under the Washington Constitution.

BACKGROUND FACTS

At 3:40 a.m., Deputy Miller noticed a car which was legally parked on a city street in Spokane County.  He became suspicious, parked his cruiser behind the vehicle, shone his spotlight on it, and made contact.  Two people were inside.  The driver said they were watching a movie on his portable DVD player.  Deputy Miller ran warrant checks on both individuals.  He discovered a warrant existed for the passenger, Ms. Bergeron, for the crime of Criminal Trespass.  He arrests her.

Deputy Miller searched the car and found a black cloth bag behind the driver’s seat.  The bag contained a crystalline substance which looked like methamphetamine.  He also found a glass marijuana pipe, needles, and plastic scales.  Deputy Miller arrested Mr. Alfana, the driver, on Drug Charges.

The case wound up for review before the WA Supreme Court.  in the meantime, the U.S. Supreme Court issued its decision in Arizona v. Gant, 129 S. Ct. 1710 (2009).  There, the Court said that police may search a vehicle incident to arrest “only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.”

The Court reasoned that, pursuant to Gant, nothing justified the search that happened after arrest.  Although the warrant for Bergeron’s arrest gave Deputy Miller a basis to arrest her, he had no reason to believe that the vehicle she occupied contained evidence of her underlying crime, namely, Criminal Trespass.  The deputy also lacked reason to believe that she posed a safety risk because she was already in custody in the backseat of the patrol vehicle.

Furthermore, the fact that the driver, Afana, was unsecured at the time of the search does not justify the search.  This is so because he was not under arrest at the time the search was conducted, and Gant held that “police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search.”  Here, the only arrestee was Bergeron; who was already in the backseat of the police cruiser.

The Court addressed the State’s “Good Faith” exception to warrantless searches.  Historically, this exception allows an otherwise unconstitutional search or seizure if the police officer believes the search was constitutional/reasonable at the time.  Here, the court rejected the State’s “Good Faith” argument because there was no probable cause to conduct the illegal search in the first place.  The evidence was suppressed.

My opinion?  August is a BIG month for handing down post Gant-related decisions (please refer to my blog on State v. Tibbles).  I’m really impressed with how the WA Supremes are handling Gant.  They aren’t chipping away at Gant with BS opinions.  They are, in fact, honoring Gant.  Afana was a unanimous decision, with only one Justice dissenting.  Horray!  🙂

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.

Berghuis v. Thompkins: Miranda Applies, BUT Defendants MUST Clearly Invoke Constitutional Rights

Constitutional Rights, Due Process, Duress Defense, felony, Homicide & Manslaughter, Interrogation, law enforcement, police, Privacy, Search and Seizure, Self-Incrimination, United States Supreme Court, , ,

Why Interrogation in Jail May Not Count as “Custodial”: The Supreme Court Makes New Law in Howes v. Fields | Sherry F. Colb | Verdict | Legal Analysis and Commentary from Justia

In Berghuis v. Thompkins, the U.S. Supreme Court ruled that a criminal suspect must specifically invoke the right against self-incrimination in order for constitutional protections to apply.

The case centered around the interrogation of Van Chester Thompkins, who was suspected of Homicide. He remained virtually silent for hours in police custody before giving a few brief responses to police questions. Most significantly, Thompkins answered “yes” when asked, “Do you pray to God to forgive you for shooting that boy down?” The statement was introduced at trial and Thompkins was convicted.

In a 5-4 ruling, the Court held that criminal suspects who do not clearly state their intention to remain silent are presumed to have waived their 5th Amendment rights. Ironically, suspects must literally open their mouths and speak in order for their silence to be legally protected. The new rule will defer to police in cases where the suspect fails to unambiguously assert their right to remain silent.

My opinion?  Naturally, I’m concerned about any retreat from the basic principle that criminal suspects should not be compelled or coerced into incriminating themselves.  The opinion is wrong because it creates additional challenges for suspects who already understand too little about how their constitutional rights apply during police interrogations.

Fortunately, however, the Berghuis decision leaves intact the best strategy for handling any police interrogation: keeping your mouth shut. Requiring suspects with limited legal knowledge to clearly assert their rights may seem a bit strict, but it’s irrelevant if the suspect never says a word to begin with. The point of the 5th Amendment isn’t to protect you after you’ve foolishly incriminated yourself; it’s to remind you that you’re not obligated to answer police questions in the first place.

Ultimately, the burden is on each of us to understand our rights and use that information to make the best decisions. It’s unlikely that any Supreme Court decision will ever change the fact that remaining silent is your best and only strategy if police ask you incriminating questions.

I can’t stress this enough: your attorney can suppress unlawfully obtained evidence IF you clearly assert your rights.

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.

Graham v. Florida: Court Strikes Down “Cruel & Unusual” Sentencing on Minor

Burglary, Constitutional Rights, Cruel & Unusual Punishment, Due Process, felony, Juvenile, United States Supreme Court, , ,

What is Cruel and Unusual Punishment? - YouTube

In Graham v. Florida, the U.S. Supreme Court held it unconstitutional to sentence a juvenile offender to life in prison without parole when the crime does not involve murder, given the Eighth Amendment’s ban on “cruel and unusual” punishment.

Petitioner Graham was 16 when he committed armed burglary and another crime.  under a plea agreement, the Florida trial court sentenced Graham to probation and withheld adjudication of guilt.  Subsequently, the trial court found that Graham violated the terms of his probation by committing additional crimes.  The trial court adjudicated Graham guilty of the earlier charges, revoked his probation, and sentenced him to life in prison for the Burglary.  Because Florida abolished its parole system, the life sentences left Graham no possibility of release.  He challenged his sentence under the Eighth Amendment’s Cruel and Unusual Punishment Clause.

The U.S. Supremes sided with Graham, and reasoned the inadequacy of penological theory to justify life without parole sentences for juvenile nonhomicide offenders, the limited culpability of such offenders, and the severity of these sentences all lead the Court to conclude that Graham’s sentence was cruel and unusual.  Moreover, defendants who do not kill, or foresee that life will be taken are less deserving of such punishments than are murderers.

Finally, the court reasoned that serious nonhomicide crimes may be devastating in their harm, but in terms of moral depravity and the injury to the person and to the public, they cannot be compared to murder in their severity.

My opinion?  The U.S. Supremes made the right decision.  It seems Draconian to impose a life sentence on a minor who committed a non-homicide crime.  Period.

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.

Padilla v. Kentucky: Noncitizens Entering Guilty Pleas + Bad Legal Advice = DEPORTATION!

Constitutional Rights, Drug Offenses, Due Process, felony, Immigration, United States Supreme Court, , ,

Will a Felony Get You Deported - JobsForFelonsHub.com

In Padilla v. Kentucky, the U.S. Supreme Court held that Defense attorneys representing aliens charged with crimes have a constitutional obligation to tell the client that a guilty plea carries a risk of deportation.

Mr. Padilla, a lawful permanent resident of the United States for over 40 years, faced deportation after pleading guilty to Drug Offenses in Kentucky.  He claimed his attorney not only failed to advise him of this consequence before he entered the plea, and also told Padilla not to worry about deportation since he had lived in this country so long.  Padilla says he would have avoided pleading guilty and gone to trial had he not received bad advice from his attorney.

In deciding the issue, the U.S. Supremes applied the two-part test from Strickland v. Washington, 466 U.S. 668.  The test analyzes whether (1) counsel’s legal advice fell below an objective standard of reasonableness, and (2) there exists a reasonable probablity that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.

Here, Padilla proved his defense attorney gave misleading advice.  The Supremes reasoned that defense attorneys MUST inform a client whether his plea carries risk of deportation.  Changes to immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction.  They further reasoned that, recently, immigration reforms have expanded the class of deportable offenses and limited judges’ authority to alleviate deportation’s harsh consequences.  The importance of accurate legal advice for noncitizens has never been more important.

My opinion?  Good decision.  Mr. Padilla was rightfully granted relief for his attorney’s bad legal advice.  Under the law, immigrants can be deported if they are convicted of crimes which expose them to serving a year or more jail time.  Practically speaking, this applies to all gross misdemeanors and felonies.  Simple misdemeanors are exempt because their exposure is typically only 90 days in jail.

Padilla warns defense attorneys to correctly advise immigrant clients of the consequences of entering guilty pleas.

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.

Justice Stevens Retiring From Supreme Court

United States Supreme Court, , ,

Retired Justice Stevens On The Conservative Supreme Court : NPR

Supreme Court Justice John Paul Stevens the court’s oldest member and leader of its liberal bloc, is retiring.

Throughout his tenure, which began after President Gerald Ford nominated him in 1975, Stevens usually sided with the court’s liberal bloc in the most contentious cases — those involving abortion, criminal law, civil rights and church-state relations. He led the dissenters as well in the case of Bush v. Gore that sealed President George W. Bush’s election in 2000.

President Barack Obama now has his second high court opening to fill.

Justice Stevens, I salute your service to the bench.  Thank you for providing years of service and steadfast commitment toward deciding some of the nation’s most controversial legal issues.

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.

Berghuis v. Smith: Defining the Hardship of Obtaining an Impartial “Cross Section” of the Jury Community

Constitutional Rights, Due Process, felony, Firearm, Homicide & Manslaughter, Jury Trial, Race & Law, United States Supreme Court, , ,

Jury Selection: How Social Media is Changing the Game | Richmond Journal of Law and Technology

In Berghuis v. Smith, the U.S. Supreme Court held that a Michigan state court did not create an unfair bias in jury selection for a murder trial. case.

The defendant was an African-American man charged with Second Degree Murder and Felony Firearm Possession.  He goes to trial.  At voir dire, the jury panel was composed of 60 and 100 individuals, only 3 of whom, at most, were African American.  At that time, African-Americans constituted 7.28% of the County’s jury-eligible population, and 6% of the pool from which potential jurors were drawn.  An all-white jury was selected.  The trial court rejected Smith’s objection to the panel’s racial composition.  The all-white jury convicted Smith of the crimes.  He was sentenced to life in prison.

For those who don’t know, the 6th Amendment gives criminal defendants the right to be tried by an impartial jury drawn from sources reflecting a fair cross section of the community.  The issue was whether, under the circumstances, the defendant’s right was violated by the all-white jury’s conviction.

The Court reasoned that a defendant raising a violation of the “fair-cross-section” requirement of the Sixth Amendment must establish that any existing underrepresentation was due to “systematic exclusion” of the group in the jury-selection process. Practices, such as excusing people who merely alleged hardship or simply failed to show up for jury service, reliance on mail notices, a failure to follow up on nonresponses, the use of old addresses, and the refusal of police to enforce court orders for the appearance of prospective jurors, are insufficient to establish “systematic exclusion.”  Consequently, the U.S. Supremes upheld Smith’s conviction.

My opinion?  Pollyannaish as it sounds, this opinion shows why it’s SO IMPORTANT for citizens to show up for jury duty.  Juries are the last bastion of objective, impartial justice.  We all experience moments when we are wrongfully accused; not because we intentionally did something wrong, but merely because we look/think/act outside the norms of the majority.

That’s exactly why juries MUST reflect a fair cross section of the community.  That “cross section,’ however, can only happen if YOU – the citizen – do your part and answer the call to serve on a jury.  Your lone perspective adds depth.  Your life experience – which, amazingly, might be similar to the defendant’s/petitioner’s/plaintiff’s – adds insight to their arguments.

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

 

State v. Harris: A Defendant May Argue Gant On Appeal Even Though It Was Not Argued At Trial.

Constitutional Rights, felony, Firearm, Jury Trial, law enforcement, marijuana, misdemeanor, police, Privacy, Search and Seizure, Search Warrant, Terry Stop, United States Supreme Court, Washington Court of Appeals, , ,

The Courts and the Constitution Arizona v Gant

In State v. Harris, the  WA Court of Appeals held that a defendant who did not bring a suppression motion prior to trial, may assert a claim under Arizona v. Gant  for the first time on appeal.

Defendant Stuart J. Harris, Jr. appealed his conviction for First Degree Unlawful Possession of a Firearm.  He argued  sufficiency of the evidence,  additional evidentiary error, and prosecutorial misconduct.   While this appeal was pending, the United States Supreme Court decided Arizona v. Gant, which deals with the scope of a car search pursuant to the arrest of its driver.  The Court of Appeals Division II allowed the parties to provide supplemental briefs on the Gant issue.

For those who don’t know, Gant rejected the reading of New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d (1981), that predominated in the lower courts, namely, that the Fourth Amendment allows a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search.

In departing from Belton, the Gant Court held instead that police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.  Gant, 129 S. Ct. at 1723.3

Here, the Court of Appeals reasoned the facts in Gant were similar to those here.  Harris was not within reaching distance of the passenger compartment of the car at the time of its search, and there was no reason to believe that the car contained evidence related to the offense for which he was arrested (driving with a suspended license). Therefore, absent other legal support for the search, the officer’s search of  the car was unlawful.

Furthermore, Gant applies retroactively because “A party should be allowed to take advantage of a decision rendered during the pendency of his case, even if he had not reserved the point decided, if the decision could not have reasonably been anticipated.”  State v. Harris at 6-7, quoting Judge Posner of the Seventh Circuit.

My opinion?  I’m a HUGE fan of the Arizona v. Gant opinion (please see my Dec. 24, 2009 blog), and by extension, I’m a HUGE fan of this opinion. Generally, United States Supreme Court decisions that announce new constitutional rules governing criminal prosecutions apply retroactively to all criminal cases not yet final on appeal.  I’m happy the Court of Appeals stuck to the law; and supported Gant, to boot.

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

State v. Patton: WA Supreme Court Acknowledges Search and Seizure Protections Afforded by Arizona v. Gant.

Constitutional Rights, Drug Offenses, Due Process, felony, Jury Trial, law enforcement, marijuana, misdemeanor, police, Police Misconduct, Privacy, Probable Cause, Search and Seizure, Search Warrant, Terry Stop, Traffic Infractions, United States Supreme Court, Washington State Patrol, Washington Supreme Court, , ,

Can Police Search Your Car Without a Warrant?

In State v. Patton, the WA Supreme Court held that an automobile search which happens after arrest is not justified unless the defendant is within reaching distance of the passenger compartment at the time of search and the search is necessary for officer safety or to secure evidence of the crime of arrest.

Randall Patton was wanted on a felony warrant.  A Skamania County Sheriff Deputy spotted him. Patton was on his property and leaning into his own car through the window, rummaging with something on the seat.  The Deputy told Patton he was under arrest.  Patton fled, but was soon apprehended inside a trailer.

Deputies searched the car and found methamphetamine. Patton challenged that the search violated his state and federal constitutional rights because it was not a valid search incident to arrest. The trial court suppressed the evidence but was reversed by the Court of Appeals.

The Court found that Patton was arrested when the officer “manifest[ed] an intent to take [him] into custody” while Patton was standing by his car. Nevertheless, “the search incident to arrest exception is narrow and should be applied only in circumstances anchored to the justifications for its existence.”  The court elaborated their reasoning with the following:

The question before us, then, is whether it would stretch the search incident to arrest exception beyond its justifications to apply it where the arrestee is not a driver or recent occupant of the vehicle, the basis for arrest is not related to the use of the vehicle, and the arrestee is physically detained and secured away from the vehicle before the search. We believe it would.

Congratulations to Justice Jim Johnson, who found the case identical to Arizona v. Gant, decided earlier this year by the United States Supreme Court.   In Gant, the U.S. Supremes held that a search conducted by police officers after handcuffing the defendant and securing the scene violates the Fourth Amendment’s protection against unreasonable searches and seizures.

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