Category Archives: Washington Court of Appeals

“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.

Is The Test Tube Vial Containing Your DUI Blood Test Expired? Doesn’t Matter. Still Admissible.

Bellingham Defense Attorney, Blood Test, DUI, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , ,

EXPIRED BLOOD TUBES! Are expired... - Awanui Veterinary | Facebook

In Kanta v. Dept. of Licensing, the WA Court of Appeals decided an important case regarding blood test evidence preserved in test tube vials. Specifically, it addressed the issue of whether blood draw evidence is admissible even if (1) blood is drawn prior to a test tube vial’s expiration date, and (2) the blood test analysis occurred after the vial’s expiration date.

Some background is necessary. Blood collection tubes used in DWI cases are glass tubes/vials which are partially evacuated of air. These tubes/vials contain a preservative and anticoagulant (blood thinner).  The vacuum of the tube allows for the blood sample to be drawn into the tube. If there was no vacuum, the tube would not be able to draw the blood sample.  Thus, an expiration date is placed on the tube label.

FACTUAL BACKGROUND

Mrs. Kanta was arrested for DUI in July 2021. Shortly after her arrest, a phlebotomist drew a sample of Kanta’s blood which was sent to a laboratory for analysis. The laboratory tested Kanta’s blood for alcohol in May 2022. In September 2022, the lab issued a report stating that Kanta’s blood sample contained 0.18% alcohol. In November 2022, the Department of Licensing (DOL) suspended Kanta’s driving license. Kanta contested the suspension, arguing that because the vial used to store her blood expired in November 2021, the blood was not properly preserved and therefore did not comply with the Washington Administrative Code (WAC). A hearing examiner rejected Kanta’s argument and affirmed the suspension.

Kanta appealed to the superior court. The superior court found that substantial evidence supported the hearing examiner’s conclusion that the blood test complied with the necessary criteria, and was therefore properly admitted. Kanta appeals to the WA Court of Appeals, arguing that the hearing examiner erred in admitting the results of her blood test into evidence because the vials were expired at the time of testing. As such, Kanta argues, the superior court erred in affirming the suspension of her license.

COURT’S ANALYSIS & CONCLUSIONS

Ultimately, the WA Court of Appeals agreed with the superior court and the DOL.

The Court reasoned that WAC 448-14-020(3) provides that blood samples must be placed in a “a chemically clean dry container consistent with the size of the sample with an inert leak-proof stopper,” and “must be preserved with an anticoagulant and an enzyme poison sufficient in amount to prevent clotting and stabilize the alcohol concentration.” Furthermore, the code explains that “suitable preservatives and anticoagulants include the combination of sodium fluoride and potassium oxalate.”

“Kanta does not take issue with the procedures involving the reporting or analysis of her blood,” said the Court of Appeals. “Rather, she confines her complaint to the manner in which her blood was stored prior to testing because although the tubes had not yet expired at the time her blood was collected and placed inside the tubes, they expired roughly four months after collection and her blood was not tested for another six months after that.”

Here, the DOL presented three exhibits to the hearing examiner: a certificate of compliance for the blood collection tube used, the report from law enforcement, and a credential verification from the Department of Health. The Court of Appeals gave much weight to the significance of the certificate of compliance:

“The certificate of compliance establishes that the tube used in Kanta’s blood sample met the necessary requirements for preservatives and anticoagulants. According to the certificate of compliance, the tube used in Kanta’s blood test contained 18 to 23 milligrams of potassium oxalate and 90 to 115 milligrams of sodium fluorite. The certificate also established that the tubes were certified to be sterile and complied with manufacturing regulations.” ~WA Court of Appeals

Furthermore, the arresting officer’s police report stated that “prior to providing this blood kit to the phlebotomist I checked to make sure that the tubes were in good condition, were not expired, and that the white preservative anticoagulant powder was present in the tubes.”

Next, the Court of Appeals bluntly addressed the issue of whether a person’s blood must be tested prior to the expiration of the test tubes holding the blood:

“Kanta focuses all of her arguments on the admissibility of her blood test. The WAC does not require that the blood in the test tubes be tested prior to the expiration of the tubes. As we note above, once the DOL satisfies its initial burden of producing prima facie evidence establishing that the test complied with the code, the test results are admissible.” ~WA Court of Appeals (emphasis supplied).

My opinion? The Court of Appeals issued a rather narrow, cut-and-dried opinion which was strictly conscripted to the WAC. Obviously, the WAC must be changed to require that blood be tested prior to the expiration of blood vials/tubes. Expired blood test vials can lead to inaccurate results, especially for coagulation testing. This is because expired tubes may have lost their sterility or vacuum, or contain an anticoagulant that is no longer effective. Additionally, if a tube is used past its expiration date, the vacuum may not be able to draw enough blood to fill the tube, which can lead to short-filled tubes that are not suitable for testing.

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.

Invoking The Right To An Attorney During Police Interrogations

Bellingham Defense Attorney, Fifth Amendment, Homicide & Manslaughter, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

What does a police interrogation/interview room usually look like? - Quora

In State v. Wilson, the WA Court of Appeals held that a Defendant invokes his right to an attorney when he says, “So, I’m going to have to ask for legal representation, not out of resistance or— or—anything,” when interviewed by police.

FACTUAL BACKGROUND

Mr. Wilson was investigated for the shooting death of his ex-wife. He was transported to the police station for an interview. The interrogation was video-recorded. During the interview, the following exchange took place:

DETECTIVE: “Yeah. Do you want me to call you Mr. Wilson or Wendell?”

MR. WILSON: “Whichever you’re comfortable with.”

DETECTIVE: “Okay. Okay. Go ahead.”

MR. WILSON: “Um . . . I know I can’t afford a lawyer.”

DETECTIVE EDWARDS: “Okay.”

MR. WILSON: “So I’m going to have to ask for legal representation, not out of resistance or—or—anything . . .”

DETECTIVE EDWARDS: “Mm-hmm.”

The interview proceeded. During the interview, Mr. Wilson described the argument that concerned installing a baby gate in the kitchen, which eventually escalated with Mrs. Wilson threatening to move out. The argument took place throughout the apartment, and the two were in the master bedroom before Mr. Wilson retrieved the gun from the adjacent bedroom. Mr. Wilson stated the gun was in a closet up on a shelf in a gun case.

Mr. Wilson stated he came out of the adjacent bedroom at the same time Mrs. Wilson came out of the master bedroom. The two stood about a foot apart. When asked if he intended to shoot Mrs. Wilson when they met, Wilson said, “I said yes earlier and . . . no,” but did say he intended to hurt her, though he further stated he intended to “more scare her.”

When asked what was his intention for using the gun, Mr. Wilson stated, “It comes down to the dominance thing.” Wilson explained it showed “who’s got the power.” He agreed with the Detective that Wilson’s use of the gun showed Mrs. Wilson that he had the last word. When Mr. Wilson shot Mrs. Wilson, she was well into the room because she started backing up, looked scared, and put her hands up in a defensive position. Mr. Wilson said when he went to get the gun, it was out of “rage,” and fear never crossed his mind.

The State charged Mr. Wilson with first degree murder. In a pretrial CrR 3.5 hearing, Wilson argued his statements “I know I can’t afford a lawyer” and “I’m going to have to ask for legal representation” were an unequivocal invocation of his right to counsel. However, the trial court ruled Wilson did not unequivocally invoke his right to counsel and the interview statements were admissible.

The State played the interview at trial. The jury convicted Wilson of first degree murder. 

COURT’S ANALYSIS & CONCLUSIONS

“Whether a criminal case unequivocally invoked Miranda rights is a mixed question of law and fact,” said the Court of Appeals (COA). “The question is whether, as a matter of law, it was reasonable for the detectives to conclude that the right to counsel was not invoked.”

The COA reasoned that before any custodial interrogation, a suspect must be informed that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning.’ (quoting Miranda) Once warnings have been given, the subsequent procedure is clear. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.

However, the suspect must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for counsel. If the suspect’s statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him.

The COA engaged compared  numerous prior rulings leading cases: State v. Whitaker (cited by the State) and State v. Pierce (cited by the defense).

“The point of the objective standard for invoking Miranda rights is to give law enforcement a bright line rule that can be applied without requiring questioning to cease merely if a suspect makes a statement that might be a request for an attorney. It is not enough to surmise from background circumstances that a suspect probably would want counsel, and by the same token surmise from circumstances that a suspect probably would not want counsel cannot defeat a clear statement that ‘I’m going to have to ask for legal representation.’ Having reviewed de novo Wilson’s statements, their context, and the video and audio recording of the interview, we conclude Wilson unequivocally invoked his right to counsel. The admission of the interview at trial was error.” ~WA Court of Appeals

The COA therefore reversed Mr. Wilson’s judgment of conviction. It also held that in the event of retrial, the interview with the detective must be excluded as substantive evidence under Miranda.

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.

Is Chewing Tobacco a “Foreign Substance” That Affects DUI Breath Tests?

Bellingham Defense Attorney, DUI, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Vehicular Homicide, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Jake Peavy chews tobacco

Red Sox pitcher Jake Peavy chews tobacco during a match. Credit: Getty Images

The answer? It depends how much chewing tobacco we’re talking about . . .

In State v. Sliger, the WA Court of Appeals held that a “foreign substance,” as used for the purposes of breath testing, is a foreign substance in an amount that can affect the accuracy of breath test results.  Therefore, small strands of tobacco left in the mouth of the test subject, after he removed the main wad of tobacco, did not invalidate the breath results.

FACTUAL BACKGROUND

Mr. Sliger was charged with Vehicular Homicide. At the scene of the accident, Sliger removed a lump of chewing tobacco from his mouth. Prior to taking a breath test, when asked if he had any foreign substances in his mouth, he answered no. After checking his mouth, the officer noted strands of tobacco in his teeth that were not removed prior to taking the test.

Sliger filed a pretrial motion to suppress the breath test results. For a breath test to be admissible under RCW 46.61.506(4)(a)(iii), the State must produce prima facie evidence that the subject did not have any foreign substances in their mouth at the beginning of the observation period. This burden can be met with evidence that either the subject denied having anything in their mouth or evidence that a check of the mouth revealed no foreign substances.

Here, the trial court found that tobacco was a foreign substance, that Sliger removed the tobacco from his mouth before taking the test, but did not remove the strands of tobacco between his teeth. Based on Sliger’s denial of a foreign substance, the trial court concluded that the State met its burden of producing prima facie evidence that Sliger did not have a foreign substance in his mouth at the beginning of the observation period.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals (COA) stated the admissibility of a breath test is governed by case law, statute, and regulations. Specifically, RCW 46.61.506(4)(a) requires the State to produce prima facie evidence of certain facts before a test can be admitted as evidence. One of the facts is evidence that the person being tested “did not have any foreign substances, not to include dental work or piercings, fixed or removable, in his or her mouth at the beginning of the fifteen minute observation period.” RCW 46.61.506(4)(a)(iii).

“A ‘foreign substance’ is defined as a substance that ‘adversely affects the accuracy of test results.’ This definition leaves room for a substance such as tobacco to be considered a foreign substance based on the amount of the substance present. In other words, tobacco only becomes a foreign substance when it is present in an amount sufficient to adversely affect the test.”

“Reading the statute otherwise would lead to absurd results. If we were to hold that the presence of any amount of a substance that is foreign to the mouth renders a test inadmissible, then in theory the microscopic presence of any such substance would impact admissibility. Such a result is not required by the regulations or the statute.” ~WA Court of Appeals

With that, the COA affirmed the trial court’s denial of Mr. Sliger’s Motion to Suppress. Here, Sliger denied having any foreign substances in his mouth. And when the officer checked, he did not see any foreign substances. He did see strands of tobacco but did not consider them to be a foreign substance.

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. Ortega: Court Upholds Forensic Search of Defendant’s Cell Phone Using “Cellebrite Touch” Software

Bellingham Defense Attorney, Cell Phone, Mount Vernon Criminal Defense Attorney, Search and Seizure, Sex Crimes, Skagit County Criminal Defense, Technology, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Supreme Court cell phone ruling doesn't affect local law enforcement

In State v. Ortega, the WA Court of Appeals held that police officers executing a search warrant for an electronic device are not exceeding the scope of the warrant by manually searching through all the images on a device to find and seize images depicting specific content.

FACTUAL BACKGROUND

Mr. Ortega was investigated for sex offenses against his girlfriend’s children. Police believed Mr. Ortega’s cell phone probably contained evidence of the crimes with which he was charged. They obtained possession of the cell phone from a family member, who voluntarily turned it over to police. The court granted the police’s request for a search warrant. Pursuant to the warrant, police searched the phone and seized 35 images, many of which were incriminating.

Mr. Ortega moved to suppress the fruits of the cell phone search. He argued that the warrant was insufficiently particular, in violation of the state and federal constitutions. At his suppression hearing, officers testified they began the search by connecting Mr. Ortega’s phone to an extraction device known as the “Cellebrite Touch.”  They ran an extraction that allowed the files on Mr. Ortega’s phone to be organized into categories (for example, messages, images, etc.). Once extracted, data is not visible unless someone opens the individual category folders through Cellebrite’s physical analyzer program.

After the data extraction, police produced a thumb drive containing more than 5,000 extracted images. One officer testified it was similar to being given a physical photo album and having to flip through the pages to find what you are looking for.

The trial court denied Mr. Ortega’s motion to suppress the images seized from his cell phone. Mr. Ortega subsequently waived his right to a jury trial and his case was tried to the bench. The court found Mr. Ortega guilty as charged. Mr. Ortega timely appealed on arguments that the State’s case was tainted by evidence seized during an unconstitutional cell phone search.

COURT’S ANALYSIS & CONCLUSIONS

1. The Search Warrant Passed the “Particularity Requirement.”

The Court of Appeals (COA) began by explaining that both the Fourth Amendment and the Washington Constitution require that a search warrant describe with particularity the place to be searched and the persons or things to be seized. The particularity requirement, which aims to prevent generalized rummaging through a suspect’s private affairs, is of heightened importance in the cell phone context. This is because of the vast amount of sensitive data contained on the average user’s smartphone device. The purposes of the particularity requirement are to prevent a general search, limit the discretion of executing officers, and ensure that items to be searched or seized are supported by probable cause, said the COA.

Consequently, the COA reasoned the warrant satisfied the particularity requirement. It directed officers to search the phone and seize images and/or videos depicting Mr. Ortega engaged in sexual contact with minors.

“This did not permit a general rummaging; it was akin to a warrant allowing a search of a residence for controlled substances and indicia of ownership.” ~WA Court of Appeals

2. Officers Did Not Exceed the Scope of the Warrant.

The COA discussed the scope of a search can be limited by identifying targeted content. When a warrant authorizes a search for a particular item, the scope of the search “generally extends to the entire area in which the object of the search may be found.

The COA reasoned that police properly limited the scope of their search to the terms of the warrant. The incriminating images could have been located almost anywhere on Mr. Ortega’s cell phone—not only in a photos application, but also in e-mails and text messages.

Furthermore, had the detectives chosen to search Mr. Ortega’s phone manually, they likely would have needed to sort through data other than images in order to find the targets of their search. And they would have risked jeopardizing the evidentiary integrity of the phone. By instead using forensic software, the detectives were able to organize the data from Mr. Ortega’s phone without first viewing the phone’s contents. This enabled them to limit their search to data labeled as photos and videos, thus restricting the scope of the search to areas where the target of the search could be found.

“By using forensic software to extract and organize data from Mr. Ortega’s phone, the detectives were able to minimize their review of the phone contents and tailor their search to the evidence authorized by the warrant. This did not violate Mr. Ortega’s constitutional rights.” ~WA Court of Appeals

With that, the COA denied Mr. Ortega’s appeal and upheld his convictions.

Please review my Search & Seizure Legal Guide 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.

Going Pro-Se: Should You Represent Yourself In Court?

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

Is the law library a thing of the past for law firms?

Image from Shutterstock.

In State v. Gwin, the WA Court of Appeals decided an interesting case of a defendant who wanted to represent himself pro se.

BACKGROUND FACTS

Mr. Gwin was charged with unlawful possession of a firearm in the first degree, felony harassment, and possession of heroin with intent to deliver. At trial, Mr. Gwin exercised his right to self-representation. The court conducted a colloquy and determined that Gwin knowingly, intelligently, and voluntarily waived his right to counsel. The court granted Gwin’s motion to represent himself, and Gwin completed a waiver of counsel. However, the trial court denied his request for standby counsel, citing its blanket policy to deny such requests.

Gwin opted for a bench trial, waiving his right to a jury. The court found Gwin guilty of unlawful possession of a firearm in the first degree and felony harassment. Gwin was acquitted of possession of heroin with intent to deliver. On appeal, Gwin argued the court’s categorical denial of his request for standby counsel violated his right to represent himself under Washington Constitution article I, section 22.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals (COA) began by saying the Sixth and Fourteenth Amendments of the United States Constitution afford a criminal defendant both the right to (1) assistance of counsel and the right to (2) reject that assistance and to represent himself. While both are guaranteed, the right to proceed pro se and the right to assistance of counsel are mutually exclusive.

“Self-representation is a grave undertaking, one not to be encouraged. Its consequences, which often work to the defendant’s detriment, must nevertheless be borne by the defendant . . . The federal right to self-representation does not include a right to standby counsel or hybrid representation.” ~WA Court of Appeals

The COA addressed Mr. Gwin’s argument that the trial court’s refusal to appoint standby counsel violated his rights.

Because there is no constitutional right to standby counsel, the court’s failure to consider Gwin’s request is not of constitutional magnitude and is subject to analysis under the nonconstitutional harmless error standard. Under this nonconstitutional harmless error standard, ‘an accused cannot avail himself of error as a ground for reversal unless it has been prejudicial An error is not prejudicial unless, within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred.

From there, the COA made a very clear record of Mr. Gwin’s self-representation and largely disagreed with his arguments:

“While standby counsel may have improved contact with defense witnesses and led to more success in impeaching State witnesses, Gwin has not demonstrated that the outcome of the trial would have been materially affected. Thus, the trial court’s failure to meaningfully consider Gwin’s request for standby counsel was harmless error.” ~WA Court of Appeals.

With that, the COA upheld his 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.

Recording An Inmate’s Conversations with Defense Counsel is Unconstitutional

Bellingham Defense Attorney, Jail, Mount Vernon Criminal Defense Attorney, Privacy, Sixth Amendment, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Eavesdropping – (California Penal Code Section 632)

In State v. Couch, the WA Court of Appeals held a jailed defendant’s constitutional rights were violated when jail officials recorded multiple jail calls made between the defendant and counsel, video-recorded several meetings between the defendant and counsel, and opened at least one piece of legal mail.

BACKGROUND FACTS

The State charged Mr. Couch with second degree rape-domestic violence and second degree assault-domestic violence after he allegedly forced his former girlfriend to have sex with him after she broke off their relationship.

Before the trial began, Couch filed a motion to dismiss for governmental misconduct under CrR 8.3(b). Couch claimed that the Grays Harbor County Jail had illegally recorded conversations between him and defense counsel and had opened his legal mail. The trial court held a hearing on the motion and heard testimony.

The trial court denied Couch’s motion to dismiss. Later, the jury convicted Couch of second degree rape and second degree assault. Couch appealed on arguments that state actors unlawfully intruded on his communications with his attorneys and that the trial court erred because it did not require the State to establish the absence of prejudice beyond a reasonable doubt.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying the Sixth Amendment guarantees a criminal defendant the right to the assistance of counsel, and that right includes the right to confer privately with their attorney. A state actor’s intrusion into private conversations between attorney and defendant violates this right. There is no distinction between an intrusion by jail security and an intrusion by law enforcement.

Furthermore, if a state actor has violated the defendant’s Sixth Amendment right, prejudice to the defendant is presumed. Because the constitutional right to privately communicate with an attorney is a foundational right, the State must be held to the highest burden of proof to ensure that it is protected.

Intruding on confidential attorney-client communications constitutes misconduct under CrR 8.3(b). This court rule states that the trial court may dismiss a criminal prosecution due to governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused’s right to a fair trial.

The Court of appeals reasoned that state actors intruded on Couch’s communications with his attorneys in violation of his Sixth Amendment right to confer privately with those attorneys. Here, the Grays Harbor County Jail (1) recorded multiple telephone calls between Couch and Rivas, (2) video recorded several meetings between Couch and his attorneys, and (3) opened at least one piece of legal mail.

“Therefore, the trial court was required to presume prejudice to Couch,” said the Court of Appeals. From there, the only question for the trial court – the truly correct legal issue – was whether the State proved beyond a reasonable doubt that Couch was not prejudiced when addressing Couch’s motion to dismiss. Therefore, the trial court erred in analyzing Couch’s CrR 8.3(b) motion to dismiss.

With that, the Court of Appeals reversed Couch’s conviction and remanded for the trial court to determine whether to dismiss the case or order a new trial with sufficient remedial safeguards.

Jail is a terrible place. Not only are the conditions deplorable, but privileged conversations with attorneys run the risk of being recorded. Please review Making Bail 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.

WA Privacy Act Does Not Suppress or Protect Audio Recordings of Sexual Assault

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Rape, Sex Crimes, Skagit County Criminal Defense, Washington Court of Appeals, Washington Privacy Act, Whatcom County Criminal Defense, , , , ,

Recorded conversations: A warning and call for change - Tampa Bay Business & Wealth

In State v. Kamara, the WA Court of Appeals held that the recorded sounds of a sexual assault are not a “private conversation” as defined by the Privacy Act.  Therefore, a recording of such sounds, made without the consent of the defendant, is admissible at trial.

BACKGROUND FACTS

Under Washington’s Privacy Act, it is generally unlawful to record a private conversation without first obtaining consent of all persons engaged in the conversation. And evidence obtained in violation of the privacy act is typically inadmissible at trial.

Mr. Kamara and B.T. met at a mutual friend’s birthday party in July 2019. B.T. had seen Kamara before at various events with members of the Liberian community. B.T. knew Kamara as JR. After the party, Kamara sent B.T. a friend request on Facebook. They began messaging each other on Facebook. Kamara asked B.T. out but she declined because she was in a relationship. Kamara was persistent and asked several more times.

Because Kamara kept pushing, on August 30, 2019, B.T. agreed to meet with him. Once at Kamara’s apartment, Kamara offered B.T. a drink. B.T. declined, but Kamara poured her some wine. They watched a program on TV. After some time, Kamara sat next to B.T. on the couch and then he began putting his hands on her, stroking down her arm, and leaning against her.

B.T. got up to use his bathroom and give herself some time to think. While in the bathroom, B.T. activated a recording app on her phone. At first, she just played with it, recording sounds and then listening. The next time she activated it, she got a notification and switched to a different app on her phone without stopping the recording.

When she returned to the living room, B.T. sat farther away from Kamara on the couch and continued scrolling through her social media to distract herself. Kamara moved closer and began making sexual remarks and advances toward B.T. B.T. told him she had to go, since she had work the next morning, but Kamara insisted she stay until 2:00 a.m. B.T. told Kamara “no” multiple times and told Kamara not to touch her.

B.T. told Kamara she would just nap on the couch until he took her home at 2:00 a.m., but he wanted her to go to his room. Kamara forced B.T. into his bedroom by pulling her off the couch and pushing her back until she was pushed onto his bed. He pinned her arms to the bed and then used his full body weight on her so she couldn’t move. He pulled her pants down and raped her while she cried and repeatedly told him “no, don’t, and I don’t want to do this.” B.T. tried to fight him off, but did not succeed.

Sounds of the ordeal were audio-recorded on B.T.’s phone.

After B.T. continued to cry and beg Kamara to stop, he finally got off of her and walked out of the room. B.T. testified that she felt defeated. When Kamara returned and started touching her again, B.T. didn’t fight, she “just let him do what he had to do.” Kamara then offered to take her home. Once home, B.T. texted her best friend about what had happened.

The next day, B.T.’s friend took her to Auburn Regional Medical Center where B.T. underwent a sexual assault examination. Afterward, she discovered the audio recording on her cell phone. She emailed the recording to police. Kamara was arrested and charged with rape in the second degree.

THE JURY TRIAL

Before trial, Kamara moved under CrR 3.6 to suppress the audio recording as inadmissible under Washington’s privacy act, RCW 9.73.030. The trial judge found that the contents of the recording do not capture a conversation.

“What is recorded is not an exchange of information,” said the trial judge. “Instead, what it captures is an act of sexual assault.” The entire recording was played for the jury. As a result, the jury found Kamara guilty of rape in the second degree.

Kamara appealed his conviction. He argued that the trial judge erred in admitting the victim’s cell phone audio recording of the rape because it was a private conversation made without his consent and violated the privacy act.

COURT OF APPEALS’ ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying that Washington’s Privacy Act is considered one of the most restrictive in the nation. Under the Privacy Act, it is generally unlawful to record a private conversation without first obtaining consent of all persons engaged in the conversation. Information obtained in violation of the act is inadmissible in any civil or criminal case.

The Court discussed whether a recorded communication is “conversation.” Following that, it discussed whether the communication between Kamara and B.T. was a conversation.

“In determining whether a communication between individuals constitutes a ‘conversation’ under the privacy act, courts use the ordinary meaning of the term: “oral exchange, discourse, or discussion.” State v. David Smith, 85 Wn.2d 840, 846, 540 P.2d 424 (1975). Recordings of sounds that do not constitute a ‘conversation’ do not implicate the privacy act. David Smith, 85 Wn.2d 846. In particular, sounds of an assaultive act are not a conversation protected by the privacy act; a recording of such noise is admissible.” ~WA Court of Appeals.

Based on its review of the recording, the Court of Appeals agree with the trial court’s conclusion that the last nine minutes of the recording do not constitute a conversation, and instead record an assault.

But there is no “exchange of ideas and words” in the last nine minutes of the recording. And unlike in both Smith cases, the recording did not capture brief oral exchanges between B.T. and Kamara.

With that, the Court of Appeals agreed with the trial court that the last nine minutes of the recording contains the sounds of a sexual assault being committed. “This portion of the recording is not a private conversation as contemplated by the privacy act,” said the COurt of Appeals. It affirmed Kamara’s conviction and rejected his appeal.

My opinion? Washington courts are very protective of citizens’ privacy. Privacy issues are often implicated when law enforcement uses any form of electronic surveillance. True, Washington’s one-party consent law is among the most restrictive in the nation. Most legal and policy issues in this area involve the non-consensual acquisition of “private” communications. This is a highly sensitive area because it involves both fear of “big brother” and concerns for privacy.

Clearly, however, situations such as this case circumvent the protections of WA’s Privacy Act.

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.

“No Hostile Contact With Police” Sentencing Condition Held Unconstitutionally Vague

Bellingham Defense Attorney, Burglary, Constitutional Rights, Mount Vernon Criminal Defense Attorney, Sentencing, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , ,

Void for Vagueness Doctrine

In State v. Shreve, the WA Court of Appeals held that a felony sentence condition prohibiting the defendant from having any future hostile contact with law enforcement was unconstitutionally vague.

BACKGROUND FACTS

In March 2022, Shreve attended a party at a hotel. He got into a physical altercation with another individual at the hotel. A hotel security guard intervened. When approached by the security guard, Shreve drew a knife and lunged toward him. The security guard blocked the attack and disarmed Shreve. The security guard confiscated the knife and brought Shreve to the lobby.

Police were dispatched. Upon arrival, a police officer saw Shreve seated in the lobby while the security guard stood nearby. Shreve appeared to be intoxicated and angry. The police officer and the security guard initially decided to allow Shreve to leave the hotel without his knife. However. Shreve escalated the situation by suddenly and aggressively moving toward the security guard.

A physical scuffle ensued. The officers forced Shreve to the ground and attempted to handcuff him. Ultimately, Officer Hannity was forced to use his taser to subdue Shreve.

On June 30, 2022, Shreve pleaded guilty to a single count of second degree burglary. Shreve was sentenced the same day. As a first-time offender, Shreve was sentenced to one day of confinement and twelve months of community custody. The sentencing court imposed several community custody conditions, including “No hostile contact with law enforcement/first responders.”

Shreve appealed his community custody sentencing condition. He argued that the community custody condition prohibiting him from having “hostile contact” with law enforcement is unconstitutionally vague and not crime-related. Shreve also argued that the condition was overbroad and infringed on his First Amendment rights.

COURT’S ANALYSIS & CONCLUSIONS

Ultimately, the Court of Appeals agreed with Mr. Shreve.

First, it addressed Mr. Shreve’s arguments that his community custody condition is unconstitutionally vague. He asserts the term “hostile” is not subject to a clear definition and is especially susceptible to arbitrary enforcement because it could encompass a wide range of everyday conduct and permit law enforcement officers to decide subjectively for themselves what constitutes hostile behavior.

“Whether a condition is sufficiently specific is a constitutional issue,” said the Court of Appeals. “Due process requires that individuals have ‘fair warning’ of what constitutes prohibited conduct.”

Next, the Court of Appeals applied a two-prong analysis to determine whether a condition is sufficiently specific and not unconstitutionally vague. A condition is not unconstitutionally vague if (1) it defines the prohibited conduct so an ordinary person can understand what the condition means, and (2) it provides ascertainable standards to protect against arbitrary enforcement.

1. THE TERM “HOSTILE” DOES NOT CLARIFY WHAT BEHAVIOR IS PROHIBITED.

The Court reasoned that here, the term “hostile” does not clarify what behavior is prohibited. The term “hostile” has a wide variety of dictionary definitions, which is indicative of its imprecision in this context. An individual’s conduct may be considered hostile when it is marked by malevolence and a desire to injure. However, it may also be considered hostile when it is marked by antagonism or unfriendliness.

“Given the broad range of conduct this term could cover, what the condition prohibits is guesswork. Thus, the ambiguous scope of the term “hostile” fails to provide Shreve with fair warning of the type of behavior prohibited by the condition. The first prong of the vagueness analysis fails.” ~WA Court of Appeals

2. THE CONDITION WAS SUSCEPTIBLE TO ARBITRARY ENFORCEMENT.

The Court of Appeals explained that a community custody condition is unconstitutionally vague when enforcement relies on a subjective standard. It reasoned that here, even assuming Shreve could generally understand what “no hostile contact” means, the condition fails the second prong because it is overly susceptible to arbitrary enforcement.

“Considering that interactions with police officers are often investigative or even adverse in nature, separating hostile contact with law enforcement from an adverse, but non-hostile, contact is simply too subjective to be constitutional.” ~WA Court of Appeals

With that, the Court of Appeals decided  Shreve’s “no hostile contact with law enforcement” condition was unconstitutionally vague.

My opinion? However well-intentioned by the sentencing court to protect law enforcement and first responders from enduring undeserved aggressive interactions, this particular community condition cannot withstand constitutional scrutiny.

Clearly, some community custody conditions are unconstitutional. Best to avoid felony convictions altogether. 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.

“Rapid Recidivism” Sentencing Aggravator Upheld

Bellingham Defense Attorney, felony, Mount Vernon Criminal Defense Attorney, Sentencing, Skagit County Criminal Defense, Vehicular Homicide, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Unusual Jail Sentences: When the Punishment Really Fits the Crime - A&E True Crime

In State v. Jackson, the WA Court of Appeals held the Sentencing Aggravator of committing a criminal current offense shortly after release from incarceration on a different criminal conviction was not inappropriate. The sentencing aggravator was not unconstitutionally vague simply because “shortly after” is not defined.  Also, committing Vehicular Homicide and Felony Hit and Run only 93 days after release from incarceration constituted “shortly after.”

BACKGROUND FACTS

On November 11, 2015, Mr. Jackson crashed his vehicle into a large power vault while driving under the influence of alcohol. A passenger in the vehicle died instantly from skull fractures and brain avulsion as a result of the “extremely high speed crash. The vehicle was traveling at nearly 80 miles per hour, significantly higher than the posted 25 mile per hour speed limit, when the collision occurred. Jackson’s blood alcohol content was later calculated to have been between .135g/100mL and .22g/100mL. Jackson fled the scene without reporting the collision or seeking medical care for his passenger. He also evaded police until the next morning, when he “aggressively resisted arrest.”

Following a bench trial, Jackson was convicted of Vehicular Homicide and Felony Hit and Run. The superior court found that these offenses had occurred “shortly after” Jackson’s release from incarceration on August 10, 2015. Accordingly, the court determined that, as to both convictions, the aggravating circumstance of rapid recidivism applied. At the time, Jackson had two prior felony convictions, including a conviction of second degree robbery.

For those who don’t know, Prosecutors can offer evidence of aggravating factors that would merit a harsh sentence during trial. Criminal statutes often identify specific factors that should result in harsher punishments. A common aggravating factor is a prior record of similar convictions. Other aggravating factors typically relate to the circumstances of the offense itself, such as the use of a weapon or the severity of the injuries suffered by a victim. With the exception of prior convictions, a court may not use aggravating factors to impose a harsher sentence than usual unless the jury found those factors to be true beyond a reasonable doubt.

Based on these prior convictions, the sentencing court imposed an exceptional upward sentence on Mr. Jackson based on aggravating factors. It determined that Jackson was a persistent offender and sentenced him to life imprisonment without parole. The court also determined that an exceptional sentence was appropriate and imposed a sentence of 400 months of incarceration.

Jackson appealled, in part, on arguments that the aggravating circumstance of rapid recidivism is unconstitutionally vague. He further asserts that the evidence is insufficient to support a finding that he committed the offenses “shortly after being released from incarceration” under RCW 9.94A.535(3)(t). Thus, he argued, the court erroneously imposed an exceptional sentence based on the rapid recidivism aggravator.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that under WA’s Sentencing Aggravator Statute, a sentencing court may impose an aggravated exceptional sentence based on a finding that the defendant committed the current offense shortly after being released from incarceration. It also acknowledged, however, the term “shortly after” is nowhere defined in the statute.

“When a statute does not define terms alleged to be unconstitutionally vague, we may look to existing law, ordinary usage, and the general purpose of the statute to determine whether the statute meets constitutional requirements of clarity,” said the Court of Appeals. It further reasoned that here, Jackson committed the current offenses on November 11, 2015, after being released from incarceration on August 10, 2015—a period of 93 days. He needed to demonstrate that a person of reasonable understanding would have to guess that reoffending 93 days after release from incarceration would subject the defendant to an exceptional sentence pursuant to RCW 9.94A.535(3)(t). “Jackson has not done so,” said the Court of Appeals. “Accordingly, the rapid recidivism aggravator is not unconstitutionally vague as applied to his case.”

Next, the Court of Appeals addressed Jackson’s argument that there was insufficient evidence of the rapid recidivism aggravator because he committed “impulse crimes” that are unrelated to his prior offenses”

“Here, Jackson committed offenses while highly intoxicated that resulted in the violent death of another person. He then sought to avoid accountability by fleeing the scene and aggressively resisting arrest when later discovered. He did so only 93 days after his release from incarceration. Whether Jackson’s conduct constituted rapid recidivism is a question for the finder of fact. Plainly, some rational fact finders could conclude that Jackson committed the current offenses “shortly after” his release from incarceration, and that such conduct evidenced disdain for the law, rendering Jackson particularly culpable in committing those offenses. Accordingly, sufficient evidence supports the resentencing court’s rapid recidivism finding.” ~WA Court of Appeals

With that, the Court of Appeals concluded that Jackson’s claims on appeal were without merit. The Court affirmed his exceptional sentence imposed by the lower court.

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.