Category Archives: Washington Court of Appeals

State v. Ellison: No Right to Allocution

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In State v. Ellison, the WA Court of Appeals decided a defendant lost his right to give a statement at his sentencing because his lengthy presentation changed from religious songs and unrelated topics to protests of his innocence and an accusation that his attorney was lying to the court.

At a bench trial, Mr Ellison was convicted of Rape in the Second Degree and Child Molestation in the Second Degree. At his sentencing, the court invited Ellison to allocute.

For those who don’t know, “Allocution” is defined as the right of a criminal defendant to make a personal argument or statement to the court before the pronouncement of sentence. It is the defendant’ s opportunity to plead for mercy and present any information to try mitigating the sentence.

Here, Ellison sang a short religious song and spoke about various topics not clearly related to the sentencing proceeding. After making extensive remarks, Ellison began to protest his innocence and accuse his trial attorney of lying to the court. At that point, the court cut Ellison off, explained that the matters he related were irrelevant to the issues at hand, and pronounced the sentence. Ellison asked for permission to finish his remarks, but the court declined. The court imposed life imprisonment without the possibility of release. Ellison appealed.

The Court of Appeals upheld the conviction and denied Ellison’s appeal. it reasoned that the sentencing court allowed Ellison to speak for some time, cutting him off only when he began using the opportunity to testify about the facts of the case and complain about the conduct of his trial attorney. Unfortunately, those were not legitimate purposes for allocution. Because the court let Ellison speak without interruption until it was clear he was using the allocution for improper purposes, the trial court did not abuse its discretion in cutting short Ellison’ s allocution.

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.

Didlake v. DOL: Fees for DOL Hearings Held Constitutional

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Here’s an interesting opinion on the ever-increasing financial costs of fighting DUI crimes and the Department of Licencing’s (DOL) automatic suspension of a DUI defendant’s driver’s license.

In Didlake v. Department of Licensing, the Court of Appeals held that Washington’s Implied Consent Statute, RCW 46.20.308, which requires drivers arrested for DUI to pay a $200-$375 statutory fee in order to have an administrative hearing on license suspension, does NOT violate due process because of the driving privilege is not a fundamental right and DOL waives the fee for indigent drivers.

In 2010 – 2011 police arrested James Didlake and other defendants for DUI. Washington’s Implied Consent Statute, RCW 46.20.308, requires that a driver arrested for Driving Under the Influence of an Intoxicant (DUI) pay a filing fee to obtain an administrative review hearing to prevent a driver’s license suspension or revocation. And as required by Washington’s implied consent law, the Department initiated license suspension proceedings against them. Each defendant paid a $200 fee for an administrative review hearing. After they prevailed at their hearings, the Department rescinded their license suspensions.

Didlake filed a class action lawsuit against the DOL, asking for injunctive and declaratory relief, plus a refund and damages. He alleged that the $200 statutory fee for an administrative hearing violates due process. Didlake filed a motion for class certification under CR 23. After filing its answer, the DOL filed a motion to dismiss Didlake’s lawsuit under CR 12(b)(6).

On April 5, 2013, the trial court granted the DOL’s motion to dismiss. Didlake asked the Washington Supreme Court for direct review. On March 5, 2014, the Supreme Court transferred the case to the Court of Appeals.

In rendering its decision, the Court of Appeals gave lots of background on the procedural aspects of challeging DOL license suspensions. The court reasoned that the implied consent law provides certain procedural protections to drivers. The DOL must give the driver written notice that it intends to suspend or revoke the driver’s license. The DOL must also notify the driver of the right to a hearing and specify the steps to obtain one. Within 20 days of this notice, the driver may request in writing a formal hearing before the DOL. As part of the request, the driver must pay a mandatory fee. The DOL may waive the fee, however, for drivers who are indigent.

At the hearing, the driver may have assistance of counsel, question witnesses, present evidence, and testify. The hearing officer determines if the officer had reasonable grounds to believe the driver was driving under the influence and if the driver refused to take a test or took a test that revealed a BAC of 0.08 or higher. After the hearing, the DOL “shall order that the suspension, revocation, or denial either be rescinded or sustained.”

Here, the Court reasoned that Washington courts have almost always have upheld the constitutionality of filing fees. Courts have consistently distinguished between fundamental interests and interests that are “solely monetary,” involving “economics and social welfare,” or even “important” or “substantial.” If the interest involved is fundamental, due process requires access for all. Here, the court reasoned, a fee waiver for indigent litigants accomplishes this mandate. If the interest is not fundamental, “a monetary prerequisite to an appeal is thus permissible, even for indigent appellants.

Additionally, Courts have identified the driving privilege as an “important” and “substantial” but not fundamental right. Consequently, the court reasoned, this contradicts Didlake’s assertion that the filing fee has a “chilling effect” on drivers’ exercise of their due process rights. Thus, he fails to establish a facial challenge on due process grounds. And because he paid the fee and received a hearing that complied with due process, he does not show that the fee requirement is unconstitutional as applied to him. “Whether facial or as-applied, Didlake’s due process challenges fail.”

 The Court concluded that because Didlake failed to establish that the implied consent statute’s fee requirement violates procedural due process, the Court of Appeals affirmed the trial court’s order dismissing Didlake’s class action claim.

My opinion? Speaking as a DUI attorney, DOL hearings and license suspensions are just another way for the State to profit from defendants charged with DUI. These days, a DOL hearing costs $375. Additionally, a defendant’s window of time to apply for these hearings is small – only 20 days after the DUI incident happened. Finally, DOL hearings are very difficult to win. There must be some glaring legal weakness in the case regarding (1) the pullover of the defendant’s vehicle, (2) the evidence of DUI, (3) whether the officer read the Implied Consent Warnings, and/or (4) whether the defendant tested over .08 BAC or refused the BAC machine.

Unfortunately, given the Court’s analysis above, it appears the wheels of justice shall continue to financially grind upon defendants facing license suspensions from DUI charges.

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. Rich: No Reckless Endangerment Found in DUI Case

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In State v. Rich, the WA Court of Appeals ruled there is no ‘per se’ liability for Reckless Endangerment based on proof of DUI.

Here the defendant was pulled over for driving a stolen vehicle. She was arrested for DUI because she exhibited the effects of having consumed alcohol and her BAC test was over .15. She also had a 9-year-old child in the front seat. The Prosecutor charged the defendant with Possession of a Stolen Vehicle, DUI and Reckless Endangerment.

During trial, the Prosecutor argued that because Rich operated a vehicle while legally intoxicated in violation of the DUI statute, her conduct also satisfies the elements of reckless endangerment. The State also points to the following pieces of “additional evidence” that would support a finding that Rich’s conduct created a substantial risk of death or serious physical injury: (1) Rich endangered a passenger and motorists on a “major public roadway,” (2) she was heavily intoxicated, and (3) she exceeded the speed limit. The jury found Rich guilty of both Reckless Endangerment and DUI.

The case went up on appeal on the issue of whether a jury can find rich guilty on both crimes when the overwhelming evidence suggested she was only guilty of DUI.

Some background is necessary. The Reckless Endangerment statute, RCW 9A.36.050, provides as follows:

A person is guilty of reckless endangerment when he or she recklessly engages in conduct not amounting to drive-by shooting but that creates a substantial risk of death or serious physical injury to another person.

Another provision in the criminal code, RCW 9A.08.010, defines levels of culpability, including recklessness. RCW 9A.08.010 provides, in relevant part:

RECKLESSNESS. A person is reckless or acts recklessly when he or she knows of and disregards a substantial risk that a wrongful act may occur and his or her disregard of such substantial risk is a gross deviation from conduct that a reasonable person would exercise in the same situation.

Here, the Court reasoned that the Prosecutor offered no evidence whatsoever about the presence of other vehicles, motorists, or pedestrians, nor any evidence about the type of road or traffic conditions. Additionally, the police officer who observed Rich drive did not indicate that Rich’s manner of driving posed any danger or caused him to suspect that Rich was impaired.

And even if the jury could infer from an officer’s testimony that Rich was speeding 15 miles per hour faster than the speed limit, the deputy followed Rich because he believed the car was stolen, not because of speeding or for any reason related to the manner in which the car was being operated. This evidence would not, therefore, allow a trier of fact to conclude that Rich’s speed created a substantial risk of death or serious physical injury.

Because the State failed to prove beyond a reasonable doubt that Rich recklessly engaged in conduct that created a substantial risk of death or serious injury to another person, the Reckless Endangerment conviction must be vacated.

My opinion? Good decision. there is no “per se” liability for Reckless Endangerment based on proof of violation of the DUI statute. If the penalties for DUI are thought of as too lenient then the legislature can increase them. If there should be additional offenses tied to DUI, say DUI with a passenger, then they likewise can be implemented by the legislature through the democratic process.

However, courts should remain unwilling to impose such value judgments upon the citizens by shoehorning conduct into the somewhat broad definitions of certain criminal offenses.

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. Manlove: “Deliberate Cruelty” Enhancements Apply to Property Crimes.

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In State v. Manlove, the Division III Court of Appeals held that a upward sentencing enhancement applies to Residential Burglary and other property crimes if a jury finds the defendant’s conduct during the commission of crime manifested deliberate cruelty to the victim.

In 2005, Paula Parker and her then-husband purchased a remote cabin on forty acres in Stevens County, Washington. The couple became acquainted with their neighbor, David Manlove, whose home lay a half mile from Parker’s cabin.

Paula Parker divorced in 2011, and she retained sole custody of the cabin. Parker and Manlove occasionally joined one another at each other’s homes for dinner. The two enjoyed a pastoral, idyllic, and platonic relationship, until . . .

Paula Parker went on vacation from June 19 to July 2, 2013 and returned to her cabin the morning of July 3. Once inside her home, Parker discovered her cabin was ransacked. Property was destroyed. The intruder left a hand-rolled cigarette. Paula realized her neighbor, David Manlove, smoked similar cigarettes.

Parker contacted police and informed them she believed the culprit was Manlove. She avoided her home for a few days.

On July 7, she returned home. Again, her house was ransacked. The damage was even more extensive this time. The intruder shredded Paula Parker’s medical records, high school diploma, and college degree. Parker kept her mother’s ashes in an urn, and the prowler dumped the ashes onto the floor.

After surveying the damage at Paula Parker’s cabin on July 8, 2013, Stevens County sheriff deputies traveled to David Manlove’s home. When asked why he damaged Paula Parker’s home, Manlove responded, “It’s my mountain.” When arrested, Manlove repeated several times: “It’s my mountain so there’s no crime.”

Law enforcement obtained two search warrants for David Manlove’s home. Officers seized many items that belonged to Paula Parker, including a hatchet, a chainsaw, a veil for a belly dancing costume, a mortar and pestle, journals, and jewelry. Officers also found marijuana plants and a rifle.

David Manlove was charged with Residential Burglary, Unlawful Possession of a Firearm in the Second Degree, Possession of more than Forty Grams of Marijuana, Possession of Stolen Property in the Third Degree, and Malicious Mischief in the First Degree. The State further alleged that Manlove committed Residential Burglary with deliberate cruelty in violation of RCW 9.94A.535(3)(a).

The trial court found Manlove competent to stand trial after an evaluation by Eastern State Hospital. At the close of trial, the trial court instructed the jury that: “Deliberate cruelty” means gratuitous violence ,or other conduct which inflicts physical, psychological, or emotional pain as an end in itself, and which goes beyond what is inherent in the elements of the crime or is normally associated with the commission of the crime. Clerk’s Papers (CP) at 177. The jury found David Manlove guilty as charged.

On appeal, the issue was whether the aggravating factor of deliberate cruelty under RCW 9.94A.535(3)(a) applies to Residential Burglary.

The Court of Appeals decided, “Yes.” They gave two reasons why, under appropriate circumstances, the deliberate cruelty aggravating factor may apply to a property crimes. First, when the legislature desired to limit the application of an aggravating factor to certain offenses, it expressly provided that limitation in the statute. Second, the statute allows a sentence enhancement when the current offense is a burglary and the victim ofthe burglary was present in the building or residence when the crime was committed.

The Court affirmed Manlove’s convictions and sentence, including the enhancement for deliberate cruelty.

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. Henderson: Lesser Included Jury Instructions

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In State v. Henderson, the Washington Supreme Court decided that the jury of a defendant charged with first degree murder by extreme indifference should have been instructed on the lesser included offense of first degree manslaughter.

Some background on “Lesser Included” Crime is necessary. In short it is a lesser crime whose elements are encompassed by a greater crime. A lesser included offense shares some, but not all, of the elements of a greater criminal offense. Therefore, the greater offense cannot be committed without also committing the lesser offense. For example, Manslaughter is a lesser included offense of Murder, Assault is a lesser included offense of Rape, and Unlawful Entry is a lesser included offense of Burglary.

Here, the defendant Marsele Henderson fired gunshots at a house party on November 16, 2008. One of the most important – and disputed – facts in this case is how many people were in the area in front of the house at this time just prior to shots being fired toward the house. Was it a small group of people or a large group? Witness testimony on this point varied significantly.  This question mattered because whether Henderson shot into a large crowd of people or whether he shot toward an area with very few people determined the nature of the crime.

A month after the shooting, prosecutors charged Henderson with Murder in the First Degree by Extreme Indifference under RCW 9A.32.030(1)(b). At trial, Henderson asked that the jury be instructed on the lesser included charge of Manslaughter in the First Degree under RCW 9A.32.060.  Initially, the Prosecutor agreed. However, the Prosecutor later changed its position. The trial court denied the defendant’s motion for a lesser included jury instruction. The jury convicted Henderson of Murder in the First Degree by Extreme Indifference. Henderson appealed, contending that the trial court erred when it refused to instruct the jury on Manslaughter in the First Degree. The Court of Appeals decided that Henderson should have been granted the lesser-included jury instruction. The state appealed.

Ultimately, the Washington Supreme Court decided the issue of whether Henderson was entitled to a jury instruction on Manslaughter First Degree as a lesser included charge to Murder in the First Degree by Extreme Indifference.

The WA Supremes upheld the Court of Appeals and decided that Henderson should have been granted the lesser-included jury instruction. It affirmed the Court of Appeals and reversed Henderson’s conviction.

In reaching this decision, the court reasoned that under State v. Workman, a defendant is entitled to an instruction on a lesser included offense when (1) each of the elements of the lesser offense is a necessary element of the charged offense and (2) the evidence in the case supports an inference that the lesser crime was committed. Under this framework, the court based their conclusion on two unique aspects of the case.

First, this crime involved a shooting outside a house party and the evidence consisted largely of eyewitness testimony that varied widely and was often conflicting. Thus, viewing the evidence in the light most favorable to the defendant results in a much more significant shift than it would in cases with uncontroverted evidence.

Second, the definitions of the lesser crime (disregarding a substantial risk that a homicide may occur) and the greater crime (creating a grave risk of death) are very close to each other-much closer than is typical.

As a result, the WA Supremes could not say that no jury could have rationally found that the defendant committed the lesser crime rather than the greater crime. Thus, the court held that the jury should have been allowed to determine whether Henderson committed the greater or lesser crime.

My opinion? Good decision.

In criminal trials, juries are given the option of convicting defendants of lesser included offenses when warranted by the evidence. Giving juries this option is crucial helps our criminal justice system because when defendants are charged with only one crime, juries must either convict them of that crime or let them go free. In some cases, that will create a risk that the jury will convict the defendant despite having reasonable doubts.

To minimize that risk, courts prefer to err on the side of instructing juries on lesser included offenses. Under State v. Fernandez-Medina, a jury must be allowed to consider a lesser included offense if the evidence, when viewed in the light most favorable to the defendant, raises an inference that the defendant committed the lesser crime instead of the greater crime. If a jury could rationally find a defendant guilty of the lesser offense and not the greater offense, the jury MUST be instructed on the lesser offense.

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. Budd: Ferrier Warnings Improperly Given

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Good decision. In State v. Budd, the WA Court of Appeals decided a law enforcement officer must properly deliver all three parts of the Ferrier warnings before entering a residence.

Some background on Ferrier warnings is necessary. In State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998) the WA Supreme Court held that, before entering a citizen’s home without a warrant, a law enforcement officer must (1) ask the citizen for consent, (2) inform the citizen that he can revoke consent at any time and (3) notify the citizen that he can limit the scope of the entry into the home. If an officer fails to provide these Ferrier rights/warnings, then any evidence obtained from the search is “fruits of the poisonous search” and also subject to being suppressed.

Appellant Michael Allen Budd was convicted of Possession of Depictions of Minors Engaged in Sexually Explicit Conduct under RCW 9.68A.070. He contends that the trial court erred in its denial of his ER 3.6 motion to suppress evidence obtained in a warrantless search of his residence by the officers investigating the case. He argued the Ferrier warnings were insufficient.

Washington State Patrol’s Missing and Exploited Children Task Force  received an anonymous “cybertip” from the National Center for Missing and Exploited Children. The anonymous source declared that Michael Allen Budd communicated with young girls on Yahoo! Messenger and Windows Live Messenger, both free online chat services. The anonymous source stated that he or she had seen child pornography on Budd’s computer.

On March 11,2009, Detective Kim Holmes travelled to Ephrata to Mr. Budd’s home. In law enforcement, a “knock and talk” is an investigative technique where one or more police officers approaches a private residence, knocks on the door, and requests consent from the owner to search the residence. Law enforcement performs the “knock and talk” when criminal activity is suspected, but officers lack probable cause to obtain a search warrant.

Detective Kim and other officers made contact with Holmes at his home. Although many of the facts are in dispute, it appeared that Detective Kim did not properly discuss Ferrier warnings with Mr. Holmes.

The court reasoned that Detective Holmes’ police report lacked any mention of Holmes’ informing Budd that he had a right to decline consent to enter the home, limit the scope of the search, and revoke consent at any time. Finally, the report implied that Holmes misrepresented that a court would authorize a search warrant. Based on this, the Court of Appeals ruled that the detective did not voice all Ferrier warnings before entering the home, and that law enforcement officers MUST deliver all cautions before entering the residence. Consequently, the Court reversed the conviction and dismissed the case.

My opinion? I agree with this excerpt from the Court of Appeals:

Viewing child pornography is a hideous crime that robs children of innocence and scars them for life. Those who watch child pornography obsessively gamer gratification through violent acts on defenseless children. Catching one at the crime takes diligence since the viewer indulges in the privacy of his home, often by elaborate security measures on his computer. Thus, we reluctantly reverse the trial court.

Nevertheless, as judges, we pledged to uphold the constitution and the endearing rights protected by the constitution. Those engaged in hideous conduct are entitled to the protections afforded under our state and federal constitution including the right to be free of unlawful searches and seizures.

Well said.

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. Samalia: Search of Abandoned Cell Phone is Lawful

Bellingham Defense Attorney, Cell Phone, Constitutional Rights, Due Process, Evidence, felony, Forensics, law enforcement, police, Possession of Stolen Motor Vehicle, Pretrial Investigations, Privacy, Probable Cause, Search and Seizure, Search Warrant, Washington Court of Appeals, Whatcom County Criminal Defense,

In State v. Samalia, the WA Court of Appeals upheld the defendant’s conviction for Possession of a Stolen Motor Vehicle under RCW 9A.56.068 because the police used evidence from the defendant’s cell phone found in the abandoned stolen vehicle after he fled from the vehicle and evaded pursuit.

Yakima Police Officer Ryan Yates was on patrol when his vehicle license plate reader indicated he had passed a stolen vehicle. The officer followed the stolen vehicle. The driver got out of the vehicle and faced towards Officer Yates. The driver would not obey Officer Yates’ command to get back in the vehicle and fled. Officer Yates pursued the male driver but he got away.

Officer Yates searched the car and found a cell phone in the center console. Officer Yates conducted some investigations and discovered that the phone belonged to the defendant Mr. Samilia. Later, Officer Yates located Mr. Samalia’s picture in a police database. Officer Yates then identified Mr. Samalia from the database picture as the fleeing man who had been driving the stolen vehicle.

The State charged Mr. Samalia with possession of a stolen motor vehicle. He moved unsuccessfully to suppress the cell phone evidence under ER 3.6. From the above facts, the trial court concluded the cell phone was abandoned, therefore, Mr. Samalia no longer had an expectation of privacy in it. Following a bench trial, the court found Mr. Sam alia guilty as charged. He appealed.

The court reasoned that a warrantless search and/or seizure violates the WA Constitution unless it falls under one of ”’a few jealously guarded exceptions” to the warrant requirement. Searching voluntarily abandoned property is an exception to the warrant requirement. In other words, law enforcement may retrieve and search voluntarily abandoned property without a warrant or probable cause.

The court also considered the status of the area where the cell phone was located. Here, the search area was an unattended stolen vehicle that Mr. Samalia had been driving and had fled from when a police officer approached and directed him to return to the vehicle. Consequently, the court found that a suspect’s hasty flight under these circumstances is sufficient evidence of an intent to abandon the vehicle. In conclusion, because the cell phone was abandoned; used in pursuit of the fleeing suspect, and not directly used to identify Mr. Samalia, the court held that the trial court did not err in denying suppression of Mr. Samalia’s identification from a police database.

My opinion?

I disagree with the court’s decision. This decision is too great a leap in the wrong direction; and fails to follow Washington’s current jurisprudence. Despite the Court’s reasoning, there is NO reported Washington decision which has directly addressed whether a citizen relinquishes his reasonable expectation of privacy in the data on his cell phone by leaving the phone behind at the scene of a crime.

Our jurisprudence says police must generally secure a warrant before conducting a search of data on a cell phone – even one that has been left behind in a place where its owner has no privacy interest. Requiring a search warrant will assure that there is probable cause to believe that the defendant is involved in criminal activity and that evidence of the criminal activity can be found in the data on the cell phone.

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. Vanness: Unlawful Search of a Lockbox Inside a Backpack

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Due Process, Evidence, Exigent Circumstances, felony, law enforcement, Methamphetamine, police, Privacy, Probable Cause, Search and Seizure, Search Warrant, Washington Court of Appeals

In State v. Vanness, the WA Court of Appeals Division I decided that the warrantless search of a locked box found inside a backpack that the defendant was wearing at the time of arrest violated both the Fourth Amendment and Washington Const. art. I, § 7.

Defendant VanNess was arrested for having outstanding warrants in Everett, WA. When arrested, VanNess was wearing a backpack and carrying a bag. A police officer removed the backpack and asked permission to search it. VanNess did not respond. Everett Police Department had a policy requiring officers to search backpacks for dangerous items. Following that policy, officers searched VanNess’s backpack and found knives. They also found a small box with a combination lock.

The police officer used a flathead screwdriver to pry open the box. He looked inside. Although he did not see any dangerous items, he saw a scale and small plastic “baggies” and smelled vinegar, which he associated with heroin. The box was delivered to the Everett Police Department’s property room.

Police obtained a warrant to search the box. They found suspected methamphetamine and heroin, a digital scale, a glass pipe, and several plastic baggies. The Prosecutor charged VanNess with Possession of Heroin with Intent to Deliver and Possession of Methamphetamine with Intent to Deliver. Both crimes are Class B felonies. The trial court denied VanNess’s motion to suppress. At trial, the court admitted the evidence. A jury found VanNess guilty of all charges. VanNess appealed.

A warrantless search is per se unreasonable, unless the State can prove a “carefully drawn and jealously guarded exception” applies. These exceptions include a search incident to arrest and an inventory search. If an exception does not apply, a warrantless search is illegal and the exclusionary rule prevents the State from presenting the illegally seized evidence. Here, the defendant argued that the inventory search of his lockbox violated his Constitutional rights.

The Court of Appeals agreed. It reasoned that although State v. Stroud and State v. Valdez each involved a locked container found in an automobile, the court’s consideration of the Chimel v. California applies just as well to the facts of our case:

“Where a container is locked and officers have the opportunity to prevent the individual’s access to the contents of that container so that officer safety or the preservation of evidence of the crime of arrest is not at risk, there is no justification under the search incident to arrest exception to permit a warrantless search of the locked container.”

Under Chimel, the Court reasoned that police officers may conduct a warrantless inventory search (1) to protect the arrestee’s property, (2) to protect the government from false claims of theft, and (3) to protect police officers and the public from potential danger. Courts generally uphold inventory searches conducted according to standardized procedures which do not afford police officers excessive discretion and when they serve a purpose other than discovery of evidence.

The Court of Appeals decided that here, an officer’s compliance with an established police procedure does not constitutionalize an illegal search. Similarly, the court rejected the claim that the possibility of a bomb or dangerous firearm in the locked box established a “manifest necessity” to search the box. They reasoned that without exigent circumstances, a legitimate inventory search only calls for noting such an item as a sealed unit. With that the court concluded that neither the search incident to arrest nor the inventory search exception applies to the officer’s initial search of VanNess’s locked box. Therefore, the police unconstitutionally searched the locked box.

My opinion? Good decision. It appears the Court of Appeals announced a new balancing test for some items found on an arrested person at the time of arrest. Basically, if the item to be searched falls within a category that implicates an arrestee’s significant privacy interests, the court must balance the government interests against those individual privacy interests. Only when government interests in officer safety and evidence preservation exceed an arrestee’s privacy interest in the category of item to be searched may it be searched incident to arrest without a warrant.

Good decision.

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. McPherson: Residential Burglary Involving A Dwelling/Business.

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In State v. McPherson, the Court of Appeals Division II decided the legal issue of whether a jewelry store and attached apartment is a “dwelling” under the definition of Residential Burglary. In short, the Court decided this was an issue of fact for a jury to decide; and that there was sufficient evidence for the conviction.

On the morning of March 20, 2013, someone broke into Frederick William Salewsky’ s jewelry store by entering the unoccupied store next door and making a hole in the adjoining wall. Frederick Salewsky, who worked in the jewelry store and lived in an apartment above the store, was awoken by a noise, went downstairs to investigate, and interrupted the burglary. He shot the intruder, who fled. The police later identified McPherson as a suspect after he checked into a Tacoma hospital with a gunshot wound.

The State charged McPherson with Burglary Second Degree of the vacant store ( count I), Residential Burglary of the jewelry store (count II) and Malicious Mischief Second Degree. The jury found McPherson guilty as charged and found that he had committed the Residential Burglary while the victim was present in the building or residence.

Under RCW 9A.52.025(1), a person is guilty of Residential Burglary if, with intent to commit a crime against a person or proerty therein, the person enters or remains unlawfully in a dwelling other than a vehicle. “Dwelling” means any building or structure, or a portion thereof, which is used or ordinarily used by a person for lodging.

The Court reasoned that whether a building is a “dwelling” cannot always be determined as a matter of law. Because the specific living arrangements in houses and businesses are so different, this issue was more appropriately a question of fact for the jury to decide. Here, the evidence support’s the jury’s determination that the building was a “dwelling” as the apartment was directly above the jewelry store because the apartment and jewelry store were within a single structure, the only access to the apartment was through the jewelry store, and the doors that separated the store from the apartment could not be locked or secured.

The court concluded that altogether, this evidence was sufficient for the jury to find that the apartment was not separable from the jewelry store and, therefore, there was sufficient evidence to support the jury’ s finding that the jewelry constituted a dwelling.

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. Larson: Retail Theft With Extenuating Circumstances

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In State v. Larson wire cutters, which were used to sever the wire that attached a department store security device to a pair of Nike shoes, are a “device designed to overcome security systems” for purposes of convicting the defendant of Retail Theft with Extenuating Circumstances.

Defendant Zachary Larson attempted to steal a pair of shoes from a retail store. The shoes were equipped with a security device that was attached to the shoes by wire. Yet, Larson, using wire cutters that he had brought into the store, severed the wire and removed the security device. When Larson tried to leave the store, he was stopped by security employees and, subsequently, was charged with one count of Retail Theft with Extenuating Circumstances under RCW 9A.56.360(1)(b), which criminalizes the commission of retail theft while in possession of a “device designed to overcome security systems.”

While the case was pending, he argued a Knapstad motion seeking dismissal of the charge. Therein, he argued that, as a matter of law, wire cutters do not constitute a “device designed to overcome security systems.” The trial court denied his Knapstad motion. On December 18, the trial court found Larson guilty as charged. He was sentenced to 60 days of confinement. Larson appealed on the argument that the trial court improperly denied his Knapstad motion and that wire cutters do, in fact, constitute a device designed to overcome security systems.

The court disagreed with Larson and stated the following:

“The plain meaning of the statute reveals the legislature’s intent to punish thieves who, anticipating that the possession ofa device which may be able to foil a store’s security system will be expedient to their cause, commit retail theft while in possession of such a device. In recognition of the fact that wire cutters are designed to cut wire, which is a common feature ofsecurity systems, we hold that, within the meaning of former RCW 9A.56.360(1 )(b), wire cutters constitute a ‘device designed to overcome security systems.'”

The Court also reasoned that the Division II Court of Appeals decision in State v. Reeves, ___ Wn. App. ___, 336 P.3d 105 (2014) – a recent opinion which held that “ordinary pliers” do not constitute a device designed to overcome security systems – was wrongfully decided :

“To exclude wire cutters from the statute’s reach on the basis that wire cutters may be used in other settings to achieve different ends would frustrate the legislature’s intent, while providing those inclined to commit retail theft with an unmistakable incentive to employ “ordinary devices,” as characterized by the Reeves court, to pursue their nefarious ends. Surely, the legislature did not intend such a result.”

With that, the Court upheld Larson’s conviction.

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