Category Archives: Washington Court of Appeals

Pretrial Drug-Monitoring “Sweat” Patches Ruled Unconstitutional

Bellingham Defense Attorney, Constitutional Rights, DUI, Mount Vernon Criminal Defense Attorney, Pretrial Release, Search and Seizure, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

In Bailey-Cobb v.Snohomish County District Court, No. 87738-1-I (Aug. 17, 2026), the WA Court of Appeals held that Pretrial Drug Monitoring Patches (PDMP’s) are a search and must therefore be supported by authority of law to be lawful.

WHAT ARE PRETRIAL DRUG MONITORING PATCHES?

Ingested drugs have been known to appear in sweat. This has created the development of sweat collection devices for use in drug detection, such as the PDMP sweat patches. However, externally applied drugs or drugs deposited on the skin, can cause false positives or contamination from within (CFWI). Different cleaning procedures are used to remove externally applied drugs, however some drugs can remain causing false positives. Also, if an individual lives in a drug-contaminated environment, CFWI could occur also producing misleading results for drug use.

FACTUAL BACKGROUND

In these consolidated cases, the State charged Mrs. Simone Bailey-Cobb and Mr. Toombs with DUI. As a condition of their pretrial release, the court required them to wear PDMP’s. Bailey-Cobb and Toombs challenged the imposition of the drug patch as a condition of pretrial release. The trial court denied the petitions. Bailey-Cobb and Toombs appealed, alleging the drug-monitoring patch violated the Washington State Constitution.

Additionally, Bailey-Cobb contended the trial court erred in finding she would interfere with the administration of justice, and Toombs claimed the trial court did not make the requisite findings under CrRLJ 3.2 to impose any conditions. We conclude that Bailey-Cobb and Toombs did not suffer diminished privacy interests as pretrial releasees, and the court’s imposition of a drug-monitoring patch violated their rights under article I, section 7. Accordingly, we reverse and remand for the trial court to remove the drug-monitoring patch condition from Bailey-Cobb’s and Toombs’s pretrial release requirements.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals (COA) began by saying both the United States Constitution and the Washington State Constitution protect individuals against unreasonable searches and seizures. When a party challenges an action, contending it violates constitutional rights, the court conducts a two-part inquiry.

“First, we must determine whether the alleged action “intruded upon a person’s private affairs,” said the COA. “If a privacy interest exists, the next question is whether relevant authority of law justifies the disturbance.”

Next, the COA discussed CrRLJ 3.2. This court rule gives courts the ability to impose conditions on the accused if the court determines there exists a substantial danger that the accused will commit a violent crime or that the accused will seek to intimidate witnesses, or otherwise interfere with the administration of justice. The conditions include prohibiting the accused from “consuming any intoxicating liquors or drugs not prescribed to the accused” and “any condition other than detention to assure noninterference with the administration of justice[] and reduce danger to others or the community.” To determine which conditions are reasonable, the court shall consider, among others, the accused’s criminal record, the nature of the charge, and the accused’s past interference with the administration of justice.

PDMP’s Are Invasive Technology

The COA reasoned that although Bailey-Cobb and Toombs would not need to submit a urine sample, they would be submitting far more personal information with the patch than urinalysis testing.

“And once affixed to the body, the patch collects and retains evidence of any and all drugs ingested, regardless of whether it is prescribed or otherwise not prohibited, and the individual wearing the patch is required to go into Triton’s office every 10 to14 days to get a new patch. Additionally, the patch does not test for alcohol, which is one of the substances the court order prohibited, so it is conceivable that further testing would be required. The drug patch is also susceptible to outside environmental contamination in limited situations. Because the drug-monitoring patch is invasive and would reveal far more personal information than necessary, it is not narrowly tailored and cannot survive the Olsen balancing test.” ~WA COA

The State Does Not Have a “Special Need”  to Monitor By Imposing PDMP’s.

Next, the COA rejected the argument that the State had a “special need” to monitor the drug use of pretrial releasees via a drug-monitoring patch. “The special needs exception permits an otherwise unlawful search when special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impractical,” said the COA.

“Here, the State maintains a special need exists because requiring a warrant or probable cause would jeopardize the State’s need to monitor the defendants for the sake of public safety. But our Supreme Court has repeatedly declined to apply a special needs exception under article I, section 7. See, e.g., Evans, 5 Wn.3d at 215 (declining to adopt the federal special needs exception for administrative searches of pretrial releasees); Blomstrom, 189 Wn.2d at 410 (declining to apply the special needs exception for urinalysis testing of pretrial releasees). Like the balancing test, precedent does not support applying the special needs exception to the imposition of a drug-monitoring patch for pretrial releasees.” ~WA COA

The COA concluded there was no authority of law to impose PDMP’s.  Also, neither the compelling interest test, nor the “special needs” exception to the search warrant requirement applied. “The drug monitoring patch, and the process for obtaining the patch, reveal more personal information than necessary,” said the COA.  “Thus, the patch condition was not narrowly tailored, and not lawful.”

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

Crime of “Receiving Unlawful Compensation” Also Includes Receiving Sexual Contact

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Receiving Unlawful Compensation, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

In State v. Tarver, No. 40603-2-III (Jul. 14, 2026), the WA Court of Appeals held that the word “compensation” in the Receiving Unlawful Compensation statute is not limited to receiving money. It also includes receiving sexual contact that a public servant receives in exchange for exercising official discretion to assist another with a “transaction.”

FACTUAL BACKGROUND

Mr. Tarver, a former Department of Children, Youth and Families (the Department) caseworker, was charged with several crimes after having sexual contact with a mother he was assigned to investigate. Following a bench trial, he was acquitted of extortion but convicted of perjury and Receiving Unlawful Compensation. On appeal, he challenges only his conviction for receiving unlawful compensation. He argued that sexual contact is not “compensation,” and a “transaction” does not include parent-child visitations or a dependency case.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals (COA) began its analysis by reviewing the Receiving Unlawful Compensation statute, which reads: “A person is guilty of receiving or granting unlawful compensation if,being a public servant, he or she requests, accepts, or agrees to accept compensation for advice or other assistance in preparing a bill, contract, claim, or transaction regarding which he or she knows he or she is likely to have an official discretion to exercise (emphasis added).

The COA ruled that the definition of “Compensation” is not limited to an economic or financial exchange. While compensation might include something of pecuniary value, nothing in its ordinary meaning limits compensation to an economic benefit.:

“Instead, the definition of compensation, along with the context in which the word is used in RCW 9A.68.030(1)(a), focuses on whether the thing received functioned as remuneration . . . In short, we conclude compensation and pecuniary benefit are not interchangeable or synonymous.” ~WA Court of Appeals

The COA also ruled that the word “transaction” includes visits between a parent and child or a dependency case that the public servant assists with:

“Here, the dependency action filed by the State was a communicative activity that involved and reciprocally affected the children (through the State) and Mr. Tarver, as a public servant, advised and assisted in preparing this transaction by providing testimony intended to influence the ultimate decision-maker and exercising discretional authority to determine the terms of visitation.”  ~WA Court of Appeals

With that, the COA ruled that Tarver’s request for sexual contact was a request for compensation in exchange for his advice and assistance in preparing a transaction, which included R.J.’s visitation with her children and his influence in the dependency action.

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. Ianniciello: The Right to Remain Silent

Bellingham Defense Attorney, Constitutional Rights, Fifth Amendment, Homicide & Manslaughter, Mount Vernon Criminal Defense Attorney, Self-Incrimination, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

In State v. Ianniciello, No. 86711-3-I (Dec. 15, 2025), the WA Court of Appeals reversed a defendant’s conviction for First Degree Murder. In its holding, the Court found the Ms. Ianniciello did not receive a fair trial because the State violated her Fifth Amendment right to silence by eliciting testimony regarding her pretrial silence in the wake of her husband’s murder and subsequent investigations.

FACTUAL BACKGROUND

On April 2, 2016, Ianniciello’s husband Tom was killed by a single gunshot to his head as he slept in his bed. Ianniciello called police after discovering Tom’s body in the bed. Police arrived and immediately began investigating. At the time of the murder, Tom and Ianniciello had been married for over sixteen years. The marriage was turbulent, as Tom had an issue with alcohol abuse and would become abusive to Ianniciello.

Police arrived and immediately began investigating. Detective Broggi, the lead detective, asked Ianniciello, “Did you shoot your husband?” Detective Broggi expressed concern with Ianniciello’s silent demeanor, saying “I want you to look at our side kind of this” because “you don’t seem overly concerned, or, you know, just upset about it.” Detective Broggi asked Ianniciello if she would be willing to take a polygraph examination, and Ianniciello agreed to do so. A few weeks later, on April 18, Ianniciello’s attorney contacted Detective Broggi, notified her that Ianniciello would not be taking a polygraph examination, and asked her to have no further contact with Ianniciello.

After nearly three years, the State charged Ianniciello with first-degree murder. Ianniciello’s first trial, in 2022, ended in a mistrial after the jury was unable to render a unanimous verdict.

In 2024, the case proceeded to a second trial after which the jury rendered a guilty verdict. On appeal, Ianniciello argued the State violated her right to silence under the Fifth Amendment of the United States Constitution and article I, section 9 of the Washington Constitution by eliciting testimony from multiple witnesses that she did not “reach out,” “call,” “check in,” or “provide information” to law enforcement.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals (Court) discussed Ianniciello’s Fifth Amendment right against self-incrimination. In short, the State violates a defendant’s Fifth Amendment rights when the State calls to the attention to the accused’s pre-arrest silence to imply guilt.

The Court found that here, the record established that Ianniciello invoked her Fifth Amendment right to silence. She purposefully did not answer Detective Broggi’s questions and declined the offer to take a polygraph. This clear statement that Ianniciello would not provide additional information to the police and should not be contacted by them is sufficient to invoke her Fifth Amendment privilege.

Neverthess, at trial, the State elicited at trial direct testimony from two detectives about Ianniciello’s failure to contact them. During its examination of law enforcement officers, the State elicited testimony that Ianniciello did not reach out and did not check in on the status of the investigation. The State also continued this theme of drawing the jury’s attention to Ianniciello’s pre-arrest silence by eliciting testimony that Tom’s other family members would reach out and check in on the investigation, “but not Ms. Ianniciello.”

The Court found the State’s tactics and testimony from its witnesses violated Ianniciello’s Constitutional rights:

“The State’s conduct was an attempt to convince the jury that Ianniciello’s silence, by not communicating with law enforcement, demonstrated her guilt. This is precisely what the Fifth Amendment prohibits.” ~WA Court of Appeals

Next, the Court found that the State’s error was not harmless. Preliminarily, it commented that the State’s case depended largely on circumstantial evidence. More important,  the Court found that testimony from the State’s witnesses about Ianniciello’s pre-arrest silence may have swayed the jury – thus rendering the testimony not harmless – and the State failed to prove beyond a reasonable doubt this constitutional error had no impact on the jury’s verdict.

With that, the Court of Appeals reversed Ianniciello’s conviction and remanded for a new trial.

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

WA Court Dismisses Criminal Conviction Due To Overbroad Search Warrant

Bellingham Defense Attorney, Constitutional Rights, Mount Vernon Criminal Defense Attorney, Search and Seizure, Search Warrant, Sex Crimes, Skagit County Criminal Defense, Technology, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

In State v. Hampton, the WA Court of Appeals held a Search Warrant was overbroad because it allows the seizure of evidence related to crimes for which there was no probable cause; in this case, sex crimes.

FACTUAL BACKGROUND

Law enforcement investigated Mr. Hampton for trafficking in stolen property and controlled substances. During the investigation, officers seized Hampton’s brown briefcase, which contained electronic storage devices. Thereafter, a search warrant authorized law enforcement to search the electronic storage devices and all contents that showed possession of trafficking in stolen property or drugs.

The search requested search and seizure for the following:

“Any data that may be kept on any of the seized digital devices in any format to include but not limited to intact files, deleted files, deleted file fragments or remnants related to the purchase, possession, receipt and distribution of controlled substances and or stolen property.”

When reviewing files from the storage device, law enforcement viewed ten-year-old videos of Hampton engaging in sexual intercourse with his girlfriend, while she was incapacitated. The superior court refused to suppress the videos. A jury convicted Hampton of numerous Sex Offenses. On appeal, Mr. Hampton argued the search warrant was invalid because of its overbreadth.

COURT’S ANALYSIS & CONCLUSIONS

In short, the Court of Appeals (COA) agreed with Mr. Hampton that the trial court should have granted his motion to suppress. First, the warrant authorized an overbroad and unfettered search of electronic storage devices found in the briefcase. Second, law enforcement exceeded the scope of the authorized search when viewing movie files stored on computer drives without regard to their date or connection to the crimes being investigated.

The COA emphasized that the Fourth Amendment demands in part 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 latter part of this clause requires specificity in a search warrant.  Also, Article I, section 7 of the Washington State Constitution states, “No person shall be disturbed in their private affairs or have their home invaded without authority of law.”

The COA also analyzed that the particularity requirement of search warrants provides important protection against governmental invasion of privacy. This is because the demand renders general searches impossible and prevents the seizure of one thing under a warrant describing another. The particularity requirement also ensures judicial oversight of the scope of a law enforcement search such that the executing officer lacks unlimited discretion when executing the warrant. The warrant must be based on probable cause of criminal activity and must limit the scope of the search to the probable cause determination.

“Specificity consists of two components: particularity and breadth,” said the COA. “Particularity demands that the warrant clearly state what is sought. Breadth requires the scope of the warrant be limited by the probable cause on which the warrant is based.”

The COA reasoned that the search of Mr. Hampton’s electronic storage devices conducted by Detective Travis Frizzell verifies the impermissible breadth of the search warrant. The police’s search warrant affidavit established probable cause to believe Timothy Hampton and Robert Rogers engaged in a criminal conspiracy to purchase and sell narcotics in 2020, not almost a decade earlier.

“By viewing videos from 2013, Detective Frizzell stepped inside a time machine and outside the confines of probable cause. The State’s argument that the warrant sanctioned Frizzell’s view of the 2013 files defeats its defense of the constitutionality of the warrant. If we ruled that the search warrant limited the search to evidence of possessing stolen property or controlled substances and thereby upheld the validity of the warrant, we would need to rule that Detective Frizzell’s search exceeded the scope of the warrant.” ~WA Court of Appeals

The COA concluded that a court must suppress evidence seized due to an overly broad search warrant. It remanded Mr. Hampton’s case to the superior court for vacation of his convictions and for dismissal of the charges.

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

WA Court Upholds Conspiracy Conviction For Defendant Who Conspired With Another To Shoot Himself

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Contrary to popular belief, you CAN be convicted of committing crimes if you’re the victim of your own conduct. Criminal Conspiracy is one of those crimes. In State v. Floe, No. 59948-1-II (July 29, 2025), the WA Court of Appeals held that a defendant who gave his sister a gun and persuaded her to shoot him at work so he could file an L&I claim can be held criminally liable for Conspiracy to Commit Assault  Second Degree and Conspiracy to Commit Drive-By Shooting.

FACTUAL BACKGROUND

On October 7, 2021, someone shot Mr. Floe outside of the Shelton Department of Corrections (DOC) office. At the time, DOC employed Floe. That same day, he signed a Department of Labor and Industries Report of Accident affirming his gunshot wound occurred on the job.

Police interviewed Floe at the hospital. He told the officers that the morning had begun with a workout at a gym. When Floe arrived at work following his workout, his sister, Ms. Harris, brought him breakfast and then drove away. Floe reported that after Ms. Harris left, he was shot. Floe told the interviewing officers that he did not know who shot him. He described the individual as wearing a hoodie and having a “male gait.”

Following their interviews with Floe and Harris, police continued to investigate the shooting. Surveillance footage and neighborhood interviews led officers to believe that Harris’ SUV was still present on scene at the time Floe was shot contrary to his prior statements. Police also deployed a tracking dog but found no trace of the male individual described by Floe as running from the scene.

After more interviews with police, Floe admitted that he convinced his sister to shoot him. The State subsequently charged Floe with Second Degree Assault, Conspiracy to Commit Second Degree Assault, Drive-By Shooting, Conspiracy to Commit Drive-By Shooting, False Reporting and Forgery.

Floe filed and argued pre-trial motions to dismiss. However, the trial court rejected Floe’s arguments. At a bench trial, Floe was found guilty of all charges except the Forgery charge. Floe appealed on arguments that he was not prosecutable because he was a victim of the crimes of Assault Second Degree and Drive by Shooting.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals reasoned that Floe was complicit in the crimes he committed against himself, saying that Floe initiated the plan and convinced Harris to carry out the Assault and Driveby Shooting. Moreover, Floe did more than merely consent to these crimes. Here, Floe came up with the plan, convinced Harris to assist him, and provided Harris with the gun she used during the crimes.

Next, the Court addressed the merits of Floe’s Conspiracy conviction. It stated that the appropriate focus of a conspiracy charge is on the conspiratorial agreement, not the specific criminal object or objects. To obtain a conviction, all the State needs to prove is that the conspirators agreed to undertake a criminal scheme and that they took a substantial step in furtherance of the conspiracy.

“Because Floe was charged with conspiracy to commit second degree assault and drive-by shooting, it is immaterial whether he was a victim of the conspiracy because Floe had already engaged in the criminalized conduct—agreeing to and taking a substantial step toward causing the performance of a crime with another, Harris. Floe’s argument based on the plain language of the statutes defining second degree assault and drive-by shooting fails.” ~WA Court of Appeals

With that, the WA Court of Appeals affirmed Mr. Floe’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.

High Court Denies Defendant’s Request For Mental Health Sentencing Alternative

Bellingham Defense Attorney, Mental Health, Mount Vernon Criminal Defense Attorney, No Contact Order, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

In State v. Colon, No. 59046-8-II (Apr. 29, 2025), the WA Court of Appeals held that sentencing courts may deny a defendant’s request for a Mental Health Sentencing Alternative (MHSA). Reasons for denial may include (1) no nexus between a defendant’s mental health diagnoses and the crime; (2) the victim opposes a MHSA; (3) the defendant has a lengthy criminal history and non-compliance with court orders with limited history of engagement in mental health treatment, and (4) continued treatment within prison is more suitable.

FACTUAL BACKGROUND

Colon was convicted of felony violation of a no-contact order by going to his ex-wife and children’s apartment. He requested sentencing under the MHSA. However, the trial court denied his request and sentenced Colon to 60 months of prison.

At a re-sentencing hearing, the court again denied Colon’s request for a MHSA  and found it inappropriate. The sentencing court concluded neither the community nor Colon would benefit from a MHSA for several reasons: there was no nexus between Colon’s mental health diagnoses and his conduct underlying his conviction; the victim’s opposition to a MHSA and her history with Colon; and Colon was a poor fit for a MHSA because of his criminal history, non-compliance with court orders, and limited history of engagement in mental health treatment.

Colon appealed, arguing that the sentencing court abused its discretion by denying his request for a MHSA on a non-statutory, impermissible basis.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals (COA) began by saying Courts may deviate from the standard prison sentences under specified circumstances, such as for a MHSA. Furthermore, granting an alternative sentence is entirely within the sentencing court’s discretion. However, the sentencing court must meaningfully consider the request for a discretionary sentence in accordance with the applicable law.

The COA stated a MHSA has four eligibility requirements:

  • The defendant is convicted of a felony that is not a serious violent offense or sex offense;
  • The defendant is diagnosed with a serious mental illness recognized by the diagnostic manual in use by mental health professionals at the time of sentencing;
  • The defendant and the community would benefit from supervision and treatment, as determined by the judge; and
  • The defendant is willing to participate in the sentencing alternative.

Here, Colon argued the sentencing court improperly held that a nexus must exist between his conduct and his mental health diagnosis. This “nexus,” he argued, is not one of the four eligibility requirements (elements) for a MHSA sentence. The COA felt differently.

“This is not an additional element, but simply one way to consider whether the community would benefit from treatment aimed at controlling symptoms arising from Colon’s mental health diagnoses that could lead to criminal conduct in the community,” said the COA. “Thus, the court did not abuse its discretion when it considered this factor in connection with whether a MHSA would benefit the community.”

Additionally, COA held that the sentencing court gave other reasons supporting its determination that a MHSA was inappropriate. These include the victim’s opinion, Colon’s criminal history, Colon’s noncompliance with community custody, and Colon’s  lack of participation in treatment and services. The COA reasoned these considerations speak to the court weighing Colon’s prospective treatment and how to protect the community.

“The court did not abuse its discretion in denying Colon’s request for a MHSA based on its consideration of a nexus between Colon’s mental health diagnoses and his conduct. Instead, the court considered the relevant statutory factors and made clear that its conclusion was based on the lack of benefit to both Colon and the community.” ~WA 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.

Vehicular Homicide Conviction Prohibits Defendants From Owning or Possessing Firearms

Bellingham Defense Attorney, Constitutional Rights, felony, Firearm, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , ,

In State v. Hamilton, No. 85055-5-I (March 17, 2025), the WA Court of Appeals decided that disarming those convicted of Vehicular Homicide  is consistent with the United States’ historic tradition of firearms regulation.

FACTUAL BACKGROUND

Mr. Hamilton was convicted of Vehicular Homicide after a jury trial. Due to his felony conviction, the court notified Hamilton that he could no longer possess firearms. He was ordered to immediately surrender his concealed pistol license and any firearms in his possession. The court also imposed conditions forbidding him from owning, using, or possessing a firearm or ammunition, consistent with the prohibition set out under statute.

On appeal, Hamilton argued that Washington’s statutes restricting his firearms post-conviction violate the Second Amendment to the United States Constitution.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals (COA) discussed numerous U.S. Supreme Court decisions addressing Second Amendment. These decision include New York State Rifle & Pistol Association v. Bruen, and United States v. Rahimi. In applying stare decisis, the COA ultimately held that the overwhelming majority of courts addressing statutes that ban convicted felons from possessing firearms have rejected the contention that such laws are now unconstitutional. Next, the COA addressed Hamilton challenging the as-applied constitutionality of several Washington statutes that work in conjunction to strip a person’s right to bear arms upon conviction for a felony.

” . . . We conclude that disarming those with felony convictions is demonstrably consistent with America’s historic tradition of firearms regulation. Common law has a long history of disarming individuals, or categories of individuals, who were viewed as a danger to public order . . . The historical justification for felon bans reveals one controlling principal that applies to each historical period: violent or otherwise dangerous persons could be disarmed . . .”

“Groups of people who were categorized as presenting a danger to the public order during that era of our nation’s history included American Indians, Catholics, Quakers, slaves, and freed Black people. Such restrictions are repugnant and would fail modern constitutional scrutiny, but they nevertheless demonstrate historical precedent for restricting the firearms rights of persons perceived to be dangerous.” ~WA Court of Appeals

Finally, the COA addressed Hamilton’s argument that his felony conviction involved a “tragic accident” rather than the actual use of a firearm or political activity. The COA reasoined that Hamilton nevertheless committed a felony offense that resulted in the death of another person. As a result, reasoned the COA, his behavior places him squarely in the category of persons deemed dangerous to the public order for the purpose of historical firearms regulation.

With that, the Court of Appeals affirmed Hamilton’s criminal conviction.

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

Search Warrant For Marijuana Grow Operation

Bellingham Defense Attorney, Drug Offenses, felony, marijuana, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , ,

In State v. Le, No. 58336-4-II (Mar. 11, 2025)., the WA Court of Appeals held that a search warrant for an illegal cannabis grow operation does not need to include information that police checked the legal status of the grow operation and confirmed whether or not the operation is/was registered with the State.

FACTUAL BACKGROUND

In December 2017, law enforcement in Thurston County began investigating a possible illegal marijuana grow operation involving four properties. After investigating and surveilling the properties, law enforcement applied for search warrants. The warrant affidavit described the investigation and outlined numerous facts to establish probable cause. A superior court judge issued the warrants. Officers searched the four properties pursuant to the warrant and discovered over 1,000 marijuana plants. They also recovered tools, equipment, and supplies used to grow and package marijuana.

Officers arrested Ms. Le and her codefendants. The State charged Le with Drug Offenses to include unlawful possession of a controlled substance with intent to deliver and unlawful manufacture of a controlled substance. Le moved to suppress evidence obtained during the search. She argued that the affidavit failed to establish probable cause. She also argued that the affidavit did not sufficiently support probable cause because it did not indicate that officers checked the legal status of the marijuana grow operation. The trial court denied Le’s motions to suppress.

A jury found Le guilty of both counts. On appeal, Le argued thatargues that law enforcement was required to check whether the grow operations were legal and registered with the State and include that information in the affidavit.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals held that the facts in the affidavit were sufficient to establish probable cause to search the properties involved. First, the affidavit described vehicle traffic and movements “consistent with individuals involved in the manufacture of marijuana.” Second, the affidavit notes that police reported smelling the odor of “fresh growing marijuana” at the defendant’s properties. Third, the affidavit outlines unusually high energy consumption at the four properties. Fourth, the affidavit stated that individuals involved in marijuana grow operations “often put the power in other people’s names to help avoid detection and investigation.” Finally, the investigations discussed in the affidavit revealed that although Ms. Le reported no income, she and other co-defendants purchased multiple homes, paid significantly high energy bills, made home improvements, and purchased multiple vehicles.

“We hold that the facts outlined in the affidavit, when viewed together, established probable cause to search all four properties, regardless of the fact that the odor of marijuana was only detected at two of the four properties.” ~WA Court of Appeals

Further, the Court of Appeals held that the search warrant was valid even though the affidavit did not indicate whether the marijuana grow operations were legal and registered with the state. In short, the Court of Appeals held Ms. Le lacked legal authority to support the argument:

“The State, in response, correctly notes that no case has held that a search warrant application must affirm, as a precondition to a finding of probable cause, that officers searched the medical cannabis authorization database to confirm that the suspect does not hold a registration.” ~WA Court of Appeals

Additionally, the Court reasoned that a suspect’s presence in the registry does not mean that their possession or use of marijuana is, in all respects, lawful. Moreover, each of the locations named in the search warrant application were single-family residences. Under the law, the Liquor Control Board cannot approve a license to process cannabis at a personal residence.

With that, the Court of Appeals affirmed Ms. Le’s convictions.

Please review my Search & Seizure Guideline and 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.

Testifying Non-Citizen Witnesses Can Be Cross-Examined On Their U-Visa Status

Bellingham Defense Attorney, Immigration, Mount Vernon Criminal Defense Attorney, Sex Crimes, Skagit County Criminal Defense, U-Visa, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

In State v. Bravo, No. 85030-0-I (February 18, 2025), the  WA Court of Appeals held that prohibiting cross-examination into a victims’ pending U-Visa application may violate the defendant’s right to confront witnesses. Bravo is an important legal decision regarding whether a victim/witness seeking U.S. citizenship can be impeached at trial for assisting the prosecution in furtherance of gaining citizenship.

FACTUAL BACKGROUND

A jury convicted Mr. Bravo of a Sex Offense. At trial, Bravo sought to cross-examine the victim, M.H., about her and her family’s pending U-visa application. A U-visa grants temporary legal residence to a person who is the victim of a qualifying crime and who helps law enforcement investigate or prosecute that crime.  Qualifying crimes include, among other things, Homicide, Kidnapping, Domestic Violence, and Drug Offenses.

The trial court limited Bravo’s cross-examination of M.H. to her knowledge at the time of her initial report to investigators—six years before her trial testimony. The court also prohibited cross-examination of M.H.’s sister, L.H., as to their immigration status. On appeal, he argues that exclusion of the U-visa evidence violated his state and federal constitutional rights to confront witnesses.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals (COA) began its analysis by saying both the United States and Washington State Constitutions guarantee a defendant’s right to present a defense and to confront the witnesses against them.

“The primary and most important component of the confrontation right is the right to conduct a meaningful cross-examination of adverse witnesses,” rerasoned the COA. “Cross-examination is designed to expose a witness’s bias has long been recognized as particularly important because it reveals a witness’s motivation in testifying.”

However, the COA emphasized that the right of confrontation does not give the defendant an absolute right of cross-examination. Judges have wide latitude to impose limits on cross-examination. These limits are based on concerns including harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.

“Inquiry into the U-visa may not have necessarily revealed that M.H. outright invented the allegations. Rather, the structure of the U-visa program can encourage some victims to be as helpful as possible to the prosecution in order to obtain citizenship. This could have motivated either M.H. or L.H. to embellish their stories and allegations. The evidence was relevant.” ~WA Court of Appeals

Consequently, the COA held that the trial court erred in prohibiting the cross-examination of M.H. and L.H. about their U-visa status.

Next, the COA addressed whether the trial court’s error to prohibit cross-examination of the witnesses’ U-visa status was harmful:

“The State’s closing argument emphasized that M.H. and L.H. demonstrated no bias and had no motive to fabricate. But Bravo was not able to cross-examine and expose any motive for bias or motive to fabricate, so the jury was unaware of their motives. Because of the State’s closing argument, lack of corroborating evidence, and inconsistencies in testimony, assuming the damaging potential of cross-examination were fully realized, we cannot nonetheless say that the error was harmless beyond a reasonable doubt.” ~WA Court of Appeals

With that, the COA reversed Bravo’s conviction and remanded for a new trial.

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.

“If I am a suspect, then I want an attorney.” Clear Or Unclear Request For Counsel?

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In State v. Gardner, the WA Court of Appeals held that if a suspect makes an unequivocal request for an attorney predicated on a condition (here, “if I am a suspect, then I want an attorney”) it is a conditional invocation which the police must respect and the interrogation must cease pursuant to Miranda.

FACTUAL BACKGROUND

Mr. Gardner was a suspect in a homicide. He was contacted by police. They handcuffed Gardner, placed in the back of a patrol vehicle, and read his Miranda rights.  Gardner told a detective that if he was a suspect, he wanted an attorney. Although police admitted that Gardner was a suspect at the time he made this statement, they did not end the interrogation or provide Gardner with an attorney.

At trial, the judge denied Gardner’s motion to suppress evidence from the subsequent interrogation and concluded that Gardner’s request for an attorney was equivocal. As a result, Gardner’s recorded interview was admitted as evidence. He was found guilty of first degree murder, second degree assault, first degree unlawful possession of a firearm, and felony harassment.

On appeal, Mr. Gardner argues that the trial court violated his Fifth Amendment rights when it denied his motion to suppress his interview because detectives continued questioning him after he unequivocally requested counsel.

COURT’S ANALYSIS & CONCLUSIONS

Ultimately, the WA Court of Appeals (COA) agreed with Mr. Gardner:

“Gardner’s request for an attorney was conditional, not equivocal. Since law enforcement knew that the condition was met, they should have ceased the interrogation until Gardner was provided an attorney or reinitiated contact.” ~WA Court of Appeals

The Court reasoned that the Fifth Amendment protects against self-incrimination. Accordingly, law enforcement officers are required to give Miranda warnings where an individual is subjected to custodial interrogation. Prior to being subjected to custodial interrogation, Miranda requires that an individual must be informed of their right to remain silent and their right to an attorney. If a suspect requests an attorney, law enforcement must stop all questioning until an attorney has been provided or the suspect reinitiates talking on their own.

However, once a suspect waives his Miranda rights, only an unequivocal request for an attorney requires law enforcement to cease questioning. The request for counsel must be sufficiently clear that a reasonable officer would know that Miranda has been invoked.  Conversely, a request that is ambiguous or equivocal, such that a reasonable officer under the circumstances would understand that the suspect might be interested in obtaining an attorney, does not require the officer to cease questioning.

Under that analysis, the COA issued its ruling:

“Here, Gardner told law enforcement that if he was a suspect, he wanted an attorney when he was taken in for questioning on June 13. Gardner was in fact a suspect at that point. This was a conditional request—if this, then that. There was nothing ambiguous about this request. Gardner was unsure whether he was a suspect, but if he was, he wanted an attorney. Law enforcement knew that the condition had been met because they knew that Gardner was a suspect. Because law enforcement knew that the condition had been met, Gardner’s statement was a clear invocation of his right to counsel.” ~WA Court of Appeals

The COA further conclude that the State failed to meet its burden of showing that the constitutional error was harmless beyond a reasonable doubt. Thus, the COA reversed Mr. Gardner’s guilty convictions and remanded his case for a new trial.

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.