Category Archives: voyeurism

Silver Platter Doctrine

Bellingham Defense Attorney, Child Molestation, Constitutional Rights, Evidence, felony, Forensics, Fourth Amendment, Marital Privilege, Rape, Search and Seizure, Search Warrant, Sex Crimes, Silver Platter Doctrine, Skagit County Criminal Defense, Spousal Privilege, Technology, voyeurism, Washington Court of Appeals, Washington State Patrol, Whatcom County Criminal Defense, , ,

Fear The Silver Platter - BL Clifton

In State v. Martinez, the WA Court of Appeals held that the defendant’s computer hard drive which Texas police seized in Texas pursuant to a search warrant was lawfully searched by the Washington State Patrol without a Washington search warrant under the silver platter doctrine.

BACKGROUND FACTS

Carlos Martinez began working at the Monroe Police Department in 1989. He worked in several capacities, including as a Drug Abuse Resistance Education (D.A.R.E.) program instructor. While working as a D.A.R.E. instructor, Martinez met A.K., who was in fifth grade at the time.

Beginning in 2001 or 2002, when A.K. was 13 or 14 years old, she began baby-sitting Martinez’s two young children.  A.K. also came to the Martinezes’ house when she was not baby-sitting. She would sometimes show up unannounced. She would help Martinez with chores and do her schoolwork at the house. At the time, Martinez was married to his then-wife Julie West.

Apparently, Martinez began touching A.K. in a sexual manner when she was 14. He also set up a video camera in the bathroom and digitally recorded her when she used the facilities.

Ms. West went on vacation. During that time, A.K. stayed at the family home. When Ms. West returned from vacation, she discovered a love note from A.K. to Martinez. She also discovered a video recording that Martinez had made of A.K. getting out of the shower and stored on the family computer. West confronted Martinez about the recording. He said he wanted to see if A.K. had cut herself on the kitchen knife as she had claimed. West claimed that when she asked Martinez why he still had the recording on the computer, he responded that it was “nice to look at.”

Not long after this, A.K. and her family moved from Monroe to Eastern Washington. Martinez and A.K. kept in touch. Martinez claims that in February 2007 they began a consensual sexual relationship when A.K. was 18 years old. In fall 2009, the Army recalled Martinez to active duty and stationed him in San Antonio, Texas. A.K. moved to Texas to be with him. They lived together for a short time.

After their relationship deteriorated in October or November 2011, Martinez gave A.K. the video recordings that he made of her in his bathroom in 2004. A.K. testified that Martinez told her he wanted to watch the tapes one last time and masturbate to them. She claimed he asked her to touch him as well. A short time later, A.K. contacted the Texas police to turn over the tapes. She also told the Texas police that she began an intimate relationship with Martinez some time before she was 16. Later, she contacted WSP.

The Texas police obtained a warrant to search Martinez’s home and seize his laptop computer and digital media storage devices. Then, a grand jury was convened in Texas to consider a possession of child pornography charge. But the grand jury refused to indict, returning a “no bill.” The case was dismissed. Texas police made a mirror image of Martinez’s computer hard drive and, at WSP’s request, sent it to WSP. Without obtaining a separate warrant, WSP searched this mirror image hard drive. Texas police also sent WSP two actual laptop computers and hard drives seized from Martinez. After obtaining a warrant, WSP searched those items.

The State initially charged Martinez with two counts of voyeurism, two counts of child molestation, one count of rape of a child in the third degree, and one count of possession of depictions of a minor engaged in sexually explicit conduct. Later, the State dismissed the molestation and rape charges. It tried Martinez on only one count of voyeurism and one count of possession of depictions of a minor engaged in sexually explicit conduct.

The jury found Martinez guilty on both counts. Because the voyeurism charge occurred outside the statute of limitations, the trial court dismissed that count and convicted him on only the possession count.

ISSUES

The Court of Appeals accepted review on the issues of (1) whether the warrantless search of Martinez’s computer hard drive was lawful when Texas police – and not WA law enforcement – searched the computer, and (2) whether spousal privilege applies to suppress the testimony of his ex-wife at trial.

SHORT ANSWER

The Court of Appeals held that (1) the silver platter doctrine allowed the Washington State Patrol to later examine the hard drive without a warrant, and (2) because Martinez acted
as a guardian to the victim, the spousal privilege does not apply here.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that Fourth Amendment guarantees the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.  If a government action intrudes upon an individual’s “reasonable expectation of privacy,” a search occurs under the Fourth Amendment. Furthermore, the Washington Constitution provides greater protection of a person’s privacy rights than does the Fourth Amendment. Article 1, section 7 of the Washington Constitution focuses on those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant.

Silver Platter Doctrine

Under the Silver Platter Doctrine, however, evidence lawfully obtained under the laws of another jurisdiction is admissible in Washington courts even if the manner the evidence was obtained would violate Washington law. Evidence is admissible under this doctrine when (1) the foreign jurisdiction lawfully obtained evidence and (2) the forum state’s officers did not act as agents or cooperate or assist the foreign jurisdiction.

“Martinez does not dispute that Texas lawfully obtained the hard drive,” reasoned the Court of Appeals. “And he does not challenge the trial court’s findings that Washington State Patrol (WSP) had no involvement in obtaining or serving the Texas warrant and that Texas police did not act as agents of WSP when they obtained or served the warrant.” Thus, under the silver platter doctrine, the evidence was admissible.

Next, the Court of Appeals rejected Martinez’ arguments that the silver platter doctrine does not apply here because the Texas officers did not conduct any search that would be unlawful in Washington. “The doctrine requires that the State show only two things: (1) the search was lawful in Texas and (2) the Washington officers did not act as agents for Texas or cooperate or assist Texas in any way,” said the Court. “Because the State proved this, the doctrine applies.”

Search Warrant

Next, Martinez argued that the warrant issued in Washington allowing the WSP to search his laptop computers and hard drives was overbroad. In response, the Court of Appeals reasoned that the Fourth Amendment provides that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Furthermore, the search warrant particularity requirement helps prevent general searches, the seizure of objects on the mistaken assumption that they fall within the issuing magistrate’s authorization, and the issuance of warrants on loose, vague, or doubtful bases of fact.

“When a search warrant authorizes a search for materials protected by the First Amendment, a greater degree of particularity is required, and we employ a more stringent test,” said the Court. “While the First Amendment presumptively protects obscene books and films, it does not protect child pornography involving actual minors.” Also, the Court of Appeals raised and dismissed Martinez’ arguments that the warrant was invalid for other reasons as well.

Spousal Privilege

The Court of Appeals addressed Martinez’ arguments that the trial court mistakenly admitted the testimony of his ex-wife regarding a conversation she shared with Mr. Martinez’ video of A.K. as being “nice to look at.” The Court reasoned that generally, a current or former spouse cannot be examined about confidential communications made during the marriage without the consent of the other spouse. It also explained that the marital privilege rule tries to encourage the free interchange of confidences between husband and wife that are necessary for mutual understanding and trust. “But in some situations the policies that underlie the right to invoke a testimonial privilege are outweighed by the suppression of truth that may result,” said the Court. “Thus, this spousal privilege does not apply in a criminal proceeding for a crime committed against a child for whom the spouse is a parent or guardian.”

The Court reasoned that here, West merely repeated statements by Martinez and did not comment about her belief in Martinez’s guilt. “We agree that these facts are sufficient for the jury to conclude that Martinez kept the recording for the purpose of sexual stimulation and that West’s testimony that Martinez said the recording was ‘nice to look at’ could not have materially affected the outcome of the trial,” said the Court.

Finally, the Court of Appeals raised and dismissed Martinez’ arguments that there was prosecutorial misconduct and ineffective assistance of counsel. “The Prosecutor’s general references were unlikely to have affected the jury’s verdict in light of the other incriminating evidence,” said the Court. Furthermore, Martinez does not show that his counsel’s failure to object to the Prosecutor’s case presentation was unreasonable and/or was not strategic.

With that, the Court of Appeals upheld Martinez’ conviction and sentence.

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. Strange: Was the Jury “Tainted” or Impartial?

Bellingham Defense Attorney, Due Process, felony, Ineffective Assistance, Jury Selection, Jury Trial, Juvenile, police, Pretrial Investigations, Sex Crimes, Sixth Amendment, voyeurism, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

In State v. Strange, the WA Court of Appeals Division II decided the defendant’s right to a fair and impartial jury was not violated by a prospective jurors’ statements concerning their own prior experiences with child molestation.

Here, defendant George Strange was accused of Child Molestation Second Degree and Voyeurism. from 2011 to 2013, Strange lived with his wife and his wife’ s children, who are juveniles. Here, juvenile J.M. was 12 years old when Strange allegedly fondled her breasts one night. He explained he was giving her a breast examination.

During jury selection, the court and attorneys asked the prospective jurors about their personal experiences with child molestation. Although most of the jurors had no personal experience with child molestation, almost one-third of the jurors knew someone who was either a victim or had been charged with child molestation. In response to the court’ s questioning, juror no. 54 stated,

JUROR: “Um — what I said before, like, I know people that I know. Like it’ s not an easy accusation to make. Like, it is hard for people (inaudible). It’ s like if accusations were made there’ s something behind that . . . I don’ t — like, I don’t have a ton of experience but it has just been my experience people don’ t make that accusation, you know, for no reason. Like, I feel like if an accusation was made there had to be something that had happened.”

Juror no. 54 was excused for unrelated hardship reasons.

During trial, other witnesses testified to Strange’s odd behavior around J.M. Additionally, the State played a recorded video of Strange being interviewed by a police detective who commented on Strange’s behavior during the interview. Finally, Strange did not call any witnesses nor did he testify. At the end of trial, Strange was found guilty on all counts.

On appeal, Strange argued that his right to a fair trial by an impartial jury was violated because of prospective jurors’ statements concerning their own prior experiences with child molestation, either in their families or among friends or acquaintances, which tainted the entire jury venire.

The court rejected Strange’s arguments. It reasoned that article I, § 22 of the Washington Constitution guarantees a criminal defendant the right to a fair trial by unbiased jurors.” Also, the Sixth Amendment to the United States Constitution also guarantees the right to a fair trial by impartial jurors. Here, no prospective juror professed any expertise about sexual abuse cases. Therefore, there is no concern about a prospective juror with more credible, authoritative knowledge tainting the rest of the jury pool.

Second, most jurors were merely questioned about their experiences with child molestation and asked if they could remain impartial. Some jurors admitted to a potential bias, most said they could apply the court’ s instructions impartially, and two prospective jurors asked for individual voir dire, preferring not to talk about their experiences in front of the rest of the jury pool. Consequently, the Court of Appeals decided that Strange received a fair trial by an impartial jury.

Finally, the court rejected Strange’s argument that his defense attorney was ineffective because he failed to object to the admission of Strange’s recorded interview with police. The court reasoned that because defense counsel’s failure to object was a legitimate trial tactic, it cannot be said that Strange’ s trial counsel’ s performance was deficient. Therefore, his claim for ineffective assistance of counsel fails. The decision of Strange’s attorney to not play the video was a legitimate trial tactic, and did not amount to ineffective assistance of counsel.

My opinion? Oftentimes, during jury selection, prospective jurors say things out loud which may appear to discredit the defendant, especially when the charges are particularly galvanizing. A defense attorney must be cautious in proceeding with these jurors. A good technique is to ask the juror to extrapolate “what they mean” if the juror says they have difficulty being objective, and/or if the juror says the defendant “must be guilty of something.” The attorney can strike the juror for cause because the juror could be biased against the defendant.

Still, it’s difficult to “unring the bell,” so to speak, when a prospective juror says controversial things which may hurt the defendant’s chances at trial if the rest of the jury pool believes that juror’s statements. This is the essence of “tainting the jury,” which is reversible error and should be avoided at all costs. In response, another good tactic is to inquire if other potential jurors feel the same as the juror who aired their grievances. Find someone shaking their head “No.” Ask them why.

Chances are, they’ll say something about giving the defendant a fair trial, or presumption of innocence, or something like that. Test the waters. Guide the jurors back toward their oath that they MUST presume the defendant not guilty throughout trial. Remind them that if they serve as jurors, they’re under oath to withhold their personal biases and reserve judgment until after hearing all of the evidence.

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. Lawson: Burglary & Voyeurism

Assault, Burglary, Constitutional Rights, Evidence, felony, Privacy, Probable Cause, Uncategorized, voyeurism, Washington Court of Appeals, , ,

How To Tell Who's In The Toilet Stall Next To You Without Peeking At Their Shoes - Allan Ishac

In State v. Lawson, the WA Court of Appeals supported the defendant’s convictions for both Voyeurism and Burglary. Here, the defendant was prosecuted for sneaking inside the women’s restrooms at Harrison Medical Center and Barnes & Noble and spying on different females from bathroom stalls as they entered and used the restroom facilities.

The Prosecution charged the defendant with one count of Burglary First Degree, two counts of Burglary Second Degree, one count of Assault Second Degree, one count of Voyeurism, and two counts of Criminal Attempt of Voyeurism. The jury returned guilty verdicts on each charge except for Assault Second Degree. The defendant appealed the jury verdicts on the argument that the State failed to introduce sufficient evidence to prove the Barnes and Noble voyeurism charge and each of the Burglary charges.

However, the Court of Appeals disagreed. Under statute, a person commits the crime of Voyeurism if he knowingly views another person in a place where that person would have a reasonable expectation of privacy. Here, a person has a reasonable expectation of privacy inside a restroom. The Court reasoned it is undisputed that the defendant viewed women by peeking over the restroom stall door in a place that was clearly delineated for use by women only. It stated, “Although the women’ s restroom was inside an otherwise public building and while a person might not usually disrobe inside the common area, one expects privacy in a restroom.”

 The Court also rejected the defendant’s argument that the evidence is insufficient to support Burglary convictions because voyeurism is not “a crime against person or property,” which is a prerequisite to a Burglary conviction. Instead, the Court reasoned that voyeurism is a crime against a person and, therefore, can serve as the predicate crime for Burglary Second Degree. The Court further reasoned there was sufficient evidence to conclude that the defendant was guilty of the Burglaries because he entered the women’ s restroom with the intent to commit a crime against a person or property.

With that, the Court affirmed the defendant’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.