Category Archives: Washington Court of Appeals

State v. Gunderson: Court Decides Prior “Bad Acts” of Domestic Violence Are Inadmissible

911 Call, Assault, Domestic Violence, Evidence, Jury Trial, law enforcement, police, Prior Bad Acts, Washington Court of Appeals, , ,

Prior Bad Acts of DV | Law offices of Alexander Ransom

Good opinion. In State v. Gunderson, the Court of Appeals decided a trial judge improperly allowed evidence of the defendant’s “prior bad acts” of Domestic Violence under Evidence Rule (ER) 404(b) at the defendant’s jury trial.

Here, the State charged defendant Daniel Scott Gunderson with Domestic Violence Felony Violation of a Court Order for a September 2010 altercation between himself and Christina Moore, his ex-girlfriend. At trial, Ms. Moore testified that no assault occurred. Although she made no prior statements about the incident, let alone an inconsistent statement, the State sought to introduce evidence of a 911 Call to police and also Gunderson’s prior domestic violence against Ms. Moore to impeach her credibility and show that she was a “recanting” domestic violence victim who was unduly influenced by the defendant.

The trial judge admitted this evidence over Gunderson’s ER 404(b) objection. Gunderson argued that the trial court should have excluded evidence of his prior bad acts under ER 404(b).

Some background is necessary. Under ER 404(b), evidence of a defendant’s “Prior Bad Acts” is inadmissible for the purpose of proving a person’s character and showing that the person acted in conformity with that character. The same evidence may, however, be admissible for any other purpose, depending on its relevance and the balancing of its probative value and danger of unfair prejudice.

For evidence of prior bad acts to be admissible, a trial judge must ( 1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against the prejudicial effect.

Here, the Court of Appeals reasoned that the probative value of the prior DV evidence was outweighed by its significant prejudicial effect. It stated the following:

“Much like in cases involving sexual crimes, courts must be careful and methodical in weighing the probative value against the prejudicial effect of prior acts in domestic violence cases because the risk of unfair prejudice is very high. To guard against this heightened prejudicial effect, we confine the admissibility of prior acts of domestic violence to cases where the State has established their overriding probative value, such as to explain a witness’s otherwise inexplicable recantation or conflicting account of events. Otherwise, the jury may well put too great a weight on a past conviction and use the evidence for an improper purpose.”

The Court of Appeals further reasoned that the trial court’s error was not harmless, and that it is reasonably probable that the admission of the two domestic violence convictions materially affected the outcome of the trial. Consequently, and given the above analysis the Court of Appeals revered the defendant’s conviction and remanded the case to a new trial.

My opinion? This decision was very reasonable, even-handed opinion which was effectively based on the law. The logic makes sense. Because the victim did not make conflicting statements and did not recant and the State did not articulate some other compelling justification, the probative value of this evidence is limited in comparison to its significant prejudicial effect. Not only was it manifestly unreasonable for the trial court to admit this evidence, it was also reasonably probable that the jury would have reached a different outcome. Good opinion.

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. Button: Public Shaming Sentence Struck

Constitutional Rights, Cruel & Unusual Punishment, Due Process, felony, Jail, Sentencing, Shaming, Theft, Washington Court of Appeals, , ,

VERY interesting opinion. In State v. Button, the WA Court of Appeals says that a “shaming” sentence for a defendant convicted of is unlawful. More specifically, the Sentencing Reform Act does NOT support a sentencing court’s requirement that a defendant convicted of Theft First Degree must stand on a street corner holding a sign that states, “I stole from kids. Charlotte Button.” 

          

The defendant Charlotte Button was convicted for First Degree Theft for embezzling funds from a high school club. The trial court sentenced her to two months in jail and imposed an additional condition which intended to “send a message to the community.” The court explained the sentencing condition: “Before you begin your jail time, you are going to spend 40 hours standing at the corner of Wishkah and Broadway with a sign that says, ‘I Stole Money From Kida. Charlotte Burton.’ You’re going to do it two hours at a time twice a day from 7:00 to 9:00 in the morning and 4:00 to 6:00 in the afternoon.” Along with the “public shaming condition, the judge also imposed 60 days jail.

Ms. Button appealed the “public shaming” portion of her sentence on the grounds that it violated her Constitutional Rights under the First Amendment and 8th Amendment of the Constitution. In other words, her Free Speech rights were violated and the judge’s sentence was arguably Cruel & Unusual Punishment.

The Court of Appeals decided that although Washington’s Sentencing Reform Act allows a number of sentencing alternatives – including drug treatment for drug offenders and sexual deviance treatment for sex offenders – “public shaming” is not a designated sentencing alternative. “Nor does any other Sentencing Reform Act provision independently authorize the sign-holding condition, which clearly requires Button to affirmatively engage in some conduct. Thus, there is no statutory authority allowing the imposition of a sign-holding condition in the first instance.”

The Court did not address Ms. Button’s Constitutional arguments.

My opinion? Good decision. It’s well-grounded in statutory authority (and lack thereof). Sure, the defendant’s actions leading to the conviction were bad. Nevertheless, she paid her debt to society by serving a significant amount of jail (60 days). And I’m sure the court imposed restitution and court fines, as well. 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. Reeves: Retail Theft Charges Dismissed With Knapstad Motion

Evidence, felony, Knapstad Motion, misdemeanor, Retail Theft, Theft, Washington Court of Appeals, , ,

What Is Retail Theft? - The Law Advocate Group

Good case. In State v. Reeves, the WA Court of Appeals upheld a trial court’s decision to grant a defendant’s Knapstad motion to dismiss a charge of Retail Theft With Extenuating Circumstances.

The Defendant was accused of using  a pair of ordinary pliers to remove an anti-theft security device at a store. He was caught and charged with Retail Theft With Extenuating Circumstances. His attorney argued a Knapstad motion to dismiss on the basis that ordinary pliers were not “an item, article, implement or device designed to overcome security systems including, but not limited to, lined bags or tag removers.

The judge granted the motion and reasoned that including common tools into the definition of devices designed to overcome security systems would render every act of removing a security device an extenuating circumstance. The State appealed.

Some background on Knapstad motions is necessary. In State v. Knapstad, 107 Wash.2d 346 (1986), the Supreme Court created a procedure similar to summary judgment in a civil case, under which a criminal defendant can, by way of pre-trial motion, challenge the sufficiency of the prosecution’s evidence. In essence, if the prosecution cannot show by competent affidavit that it has a prima facie case of guilt on all elements, the court must dismiss the charge.

In evaluating sufficiency of evidence, the court looks at the undisputed material facts already in the court record from the finding of probable cause, and ascertains whether as a matter of law, the prosecution has established a prima facie showing of guilt. For more information on Knapstad Motions, please read my Legal Guide titled, Dismissing Cases Through Knapstad Motions.

Likewise, some background on the felony charge of Retail Theft With Extenuating Circumstances. Under former RCW 9A.5.360(1)(b), an extenuating circumstance for retail Theft charges includes being in possession of an item, article, implement, or device designed to overcome security systems including, but not limited to, lined bags or tag removers.

 Here, the Court of Appeals affirmed the trial court’s dismissal pursuant to the defendant’s Knapstad motion. They reasoned the criminal statute was ambiguous about the definition of the class of “tools” which created the aggravating factor of “Retail Theft.”

Also, the “Rule of Lenity” made another basis for upholding the trial court’s decision: “Because the language of former RCW 9A.56.360(1)(b) is ambiguous, we first turn to the principles of statutory construction, the legislative history and the statutory scheme to determine the legislature’s intent.

If this analysis still does not clearly show the legislature’s intent, the Rule of Lenity requires us to interpret the statute in Reeve’s favor.” Here, the Court ruled that the principles of statutory construction and an analysis of the legislative history and statutory scheme do not resolve the ambiguity of the statute in the State’s favor. For these reasons, the Court of Appeals upheld the trial court’s decision.

My opinion? Good decision. Both the trial court and the court of Appeals got it right.

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. Westvang: Ferrier Warnings, Arrest Warrants & Questionable Searches of a Home.

Constitutional Rights, Drug Offenses, Evidence, Knock & Talk, law enforcement, police, Privacy, Search and Seizure, Search Warrant, Washington Court of Appeals, , ,

Consent to Search When There Are Co-occupants of a Residence — OMAG

In State v. Westvang, the WA Court of Appeals just decided that Ferrier Warnings (discussed below) are NOT necessary when police officers obtain consent to enter a home in order to execute an arrest warrant on a fugitive.

Police were searching for a fugitive named Scott Miller, who had a warrant for his arrest. Officers received a tip that Miller was at Ms. Westvang’s home. They arrived at her home. The  officers informed Ms. Westvang that they were looking for Miller. She said he was not there. Officer Sawyer asked permission to search her home and look for Miller. Although Officer Sawyer did not give full Ferrier Warnings, he informed Westvang that she did not have to consent to the search.

Westvang consented to the search and led officers through her living room, kitchen and bedroom. They did not find Miller. However, after returning to the living room, the officers saw a desk upon which were substances recognized as meth and marijuana, as well as small plastic baggies; a digital scale with a white crystalline substance, and $105 in U.S. currency.

Ms. Westvang was arrested for Possession of a Controlled Substance With Intent To Deliver. Although Westvang’s attorney argued a pretrial motion to suppress the evidence because the officers failed to provide Ferrier warnings, the judge denied her motion. At trial, Westvang was convicted. She appealed.

Some background is necessary. In State v. Ferrier, the WA Supreme Court announced a rule to protect occupants who may not be aware of the right to refuse consent to a search or to limit its scope and duration. The court stated the following:

“When police officers conduct a “knock and talk” for the purposes of obtaining consent to search a home, and thereby avoid the necessity of obtaining a warrant, they must, prior to entering the home, inform the person from whom consent is sought that he or she maylawfully refuse to consent to the search and that they can revoke, at any time, the consent that they give, and can limit the scope of the consent to certain areas of the home. The failure to provide these warnings, prior to entering the home, vitiates any consent given thereafter.”

Importantly, and after Ferrier was decided, the WA Supreme Court has since ruled under State v. Ruem that Ferrier warnings are not required when law enforcement officers seek consent to enter a home and execute an arrest warrant. Instead, Ferrier warnings are required only when law enforcement officers are conducting a “knock and talk”: entering the home without a search warrant to search for contraband or evidence of a crime.

Here, the officers were not required to give Ms. Westvang any Ferrier warnings because they were not requesting entry to her home to search for contraband or evidence of a crime pursuant to a “knock and talk.” The officers observed Westvang’s consent to enter her home to execute and arrest warrant. Therefore, no Ferrier warnings were required. Based on this reasoning, the WA Court of Appeals affirmed Westvang’s conviction.

My opinion? Cases like this are never easy. Consent walks hand-in-hand with duress. It’s very difficult for the average citizen to say “No” to law enforcement. Instinctively, we believe that refusing to cooperate with an officers request to search will only hinder their duties and bring harsher consequences for failing to cooperate. In these cases, and as soon as possible, it’s always wise to respectfully deny their questions and contact an attorney regarding your legal rights.

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

State v. Merrill: Victim’s Rights to Deny a Defense Attorney’s Interview

Assault, Constitutional Rights, Domestic Violence, felony, misdemeanor, Washington Court of Appeals, , ,

10 Questions to Ask a Criminal Defense Attorney | Browning & Long PLLC

Interesting opinion.

In State v. Merrill, the WA Court of Appeals decided that  an attorney may be sanctioned for directly contacting a crime victim after the crime victim has exercised her rights under RCW 7.69.030(1) to have an advocate present at any prosecution or defense interview.

The facts were such that defense attorney Mr. Harget was representing the defendant, Lucas Merrill, who was charged with assaulting members of the Gertlar family. The Gertlar family signed a “Notice of Victim’s Intent to Rely on RCW 7.69.030(10). Through the document, the Gertlars exercised their right to have a victim’s advocate present at any prosecution or defense interviews and demanded that any conduct, interview, or correspondence be arranged through the victim/witness office of the Spokane County Prosecutor’s Office.

Despite the family’s wishes to have a DV advocate present, Mr. Harget nevertheless contacted the victim’s family in an attempt to discuss the case. This happened not once, but twice. The victim’s family brought this to the attention of the Prosecutor; who in turn informed the court. Ultimately, Mr. Harget was sanctioned by the trial court. He appealed the sanctions.

The Court of Appeals upheld the trial court’s sanctions. It reasoned that a trial court has the inherent authroity to sanction lawyers for improper conduct during the course of litigation, but that generally requires a showing of “bad faith.” Furthermore, the court is encouraged to make an explicit finding of bad faith before imposing such sanctions. Finally, sanctions may be appropriate if an act affects the integrity of the court, and if left unchecked, would encourage future abuses.

The court further reasoned that, when invoked, victims of violent crimes have the right to have a victim advocate present during an interview by defense counsel or the prosecution under RCW 7.69.030(10). However, the right given by the statute “applies if practical, and if the presence of the crime victim advocate or support person does not cause any unnecessary delay in the investigation or prosecution of the case.”

Here, the Court of Appeals found Mr. Harget’s actions supported the sanctions against him.

My opinion? This is a very tricky case to dissect. I’ve interviewed dozens of crime victims – the good, the bad and the ugly – during my career. Some victims do not want to be interviewed. When this happens, I’ll usually argue a legal brief that states the necessity of conducting witness interviews for the matter at hand. I’ll couch my arguments in the 6th Amendment to the U.S. Constitution and also cite helpful statutes and cases from Washington State.

It’s highly necessary to interview victims. Sometimes, victims change their minds about the incident in question after thinking about it. Sometimes, they recant. Sometimes, they want the case dismissed and the No-Contact Orders to be rescinded. Sometimes, victims have ulterior motives; or their version of the facts is inconsistent with other evidence, or they don’t have much opportunity to witness/observe the totality of the incident.

A defense attorney must know these things before proceeding to trial. After all, a defense attorney can be found to be ineffective if they don’t interview witnesses and victims! So yes, I fully understand Mr. Hagley’s dilemma.

On this same note, I understand the concerns of the victim’s family’s as well. I’m sure they simply wanted to be left alone, and not contacted by Mr. Hagley at all.

Interesting case.

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. Pinson: When Prosecutors Violate a Defendant’s 5th Amendment Right

Assault, Bellingham Defense Attorney, Constitutional Rights, Domestic Violence, felony, Jail, Mount Vernon Criminal Defense Attorney, Prosecutorial Misconduct, Search and Seizure, Self-Incrimination, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Forcing iPhone unlock violates Fifth Amendment, says Court of Appeals – Naked Security

In State v. Pinson, the WA Court of Appeals held that a Prosecutor violated a defendant’s 5th Amendment rights against self-incrimination by arguing that the defendant was guilty because he chose to not talk to police when arrested.

Mason County Sheriff Deputy Nault responded to a reported domestic violence call. He contacted Stacey Campbell, who was in a parking lot across the street from her home. She said the defendant Jarad Pinson, her boyfriend, violently assaulted her. Deputy Nault saw red marks on her neck. Deputy Nault went into the home and arrested Mr. Pinson. During the arrest, Mr. Pinson was cooperative. He said he was drinking with his friends. When asked by officers if the situation became violent with Ms. Campbell, however, Mr. Pinson did not respond. he was arrested for Assault Second Degree Domestic Violence.

At trial, the judge granted the defense attorney’s motion in limine to suppress the Prosecutor from asking whether the fight was physical. However, defense counsel asked that question during cross-examination. Because of this, the judge ruled that Pinson’s defense attorney “opened the door” and gave the Prosecutor opportunity to cross examine the defendant on whether the fight was physical.

In closing argument, the Prosecutor said Mr. Pinson’s silence during arrest was substantive evidence of guilt. Although Ms. Campbell recanted her earlier accusations of assault while testifying on the witness stand, the jury nevertheless returned a guilty verdict on the Assault Second Degree charges. The case went up on appeal.

The law on prosecutorial misconduct is straightforward. To prevail on a claim of prosecutorial misconduct, a defendant must show that “in the context of the records and the circumstances of trial, the prosecutor’s conduct was both improper and prejudicial. However, when the defendant fails to object to the challenged portions of the prosecutor’s argument, he is deemed to have waived any error unless the prosecutor’s conduct was so flagrant and ill intentioned that an instruction could not “cure” the resulting prejudice to the defendant.

The 5th Amendment in the U.S Constitution states, “no person . . . shall be compelled in any criminal case to be a witness against himself.” Similarly, Article I, section 9 of the WA State Constitution follows this language. Both Constitutions guarantee a defendant the right to be free from self-incrimination, including the right silence. A defendant has the right to remain silent both prearrest and post-arrest; i.e., both before and after a defendant is given Miranda warnings.

 Here, the Court of Appeals held that the Prosecutor’s statement was improper because in violated Mr. Pinson’s 5th Amendment right against self-incrimination. More specifically, it was improper for the State to make closing arguments that infer guilt from the defendant’s silence. Even though defense counsel did not object, his failure to object did not waive the claim of prosecutorial misconduct because the conduct was so flagrant and ill-intentioned that an instruction would not have cured the prejudice.

The case was reversed and remanded for a new trial.

My opinion? Great decision. It’s a long-standing, basic principle that Prosecutors cannot infer a defendant’s silence as evidence of guilt. I’m pleased the Court acknowledged this basic principle.

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. Foster: When Detainments for “Officer Safety” Violate People’s Rights.

Burglary, Constitutional Rights, Drug Offenses, felony, law enforcement, police, Search and Seizure, Washington Court of Appeals, Washington State Patrol, , ,

Police Officers Showing A Safety First Message Board Royalty Free Cliparts, Vectors, And Stock Illustration. Image 64115849.

In State v. Foster, the WA Court of Appeals held that a police officer cannot seize someone for “officer safety” reasons and keep them handcuffed indefinitely. Here, the police officer’s decision to keep the defendant handcuffed indefinitely instead of checking for weapons turned an otherwise lawful seizure into an unlawful one.

The facts were such that defendant Samuel Foster was accused of Burglary; more specifically, stealing a tent from the home of the alleged victim. In an effort to gain more information about the stolen tent, Officer Anderson made contact with Mr. Foster. The officer became concerned for her safety because Mr. Foster refused to take his hand out of his pocket.

Officer Anderson grabbed Mr. Foster’s hand and placed him in handcuffs as a safety precaution. Sergeant Renschler happened upon the scene. He questioned Mr. Foster – who was still in handcuffs – about drugs. Sergeant Renschler searched Mr. Foster and found a small bag of meth inside a cigaratte container in Mr. Foster’s pocket. Naturally, Mr. Foster was charged with Unlawful Possession of Meth.

At trial, the judge denied Mr. Foster’s Motion to Suppress based on an unlawful search and seizure. In short, Mr. Foster argued the seizure under Terry v. Ohio was unlawful because the officer exceeded what was supposed to be a brief seizure for officer safety. The judge found Mr. Foster guilty of Possession of Meth. The case went up on appeal to Division III of the WA Court of Appeals.

The Court of Appeals reasoned that police can conduct a Terry investigative stop if they don’t have a warrant. A Terry stop allows officers to briefly seize a person in specific and articulable facts, in light of the officer’s training and experience, if the facts give rise to a reasonable suspicion that the person was engaged in unlawful activity. In evaluating the lawfulness of a Terry stop, the court must inquire whether the temporary seizure was justified at its inception, and whether the stop was reasonably related in scope to the circumstances which justified the initial interference.

Here, the basis for the stop was insufficient. Simply because a person is in a high crime area does not establish a reasonable, articulable suspicion that the person is engaging in criminal activity. Also, the simple fact that Mr. Foster had his hand in his pocket when approached by Officer Anderson does not support a reasonable, articulable suspicion that Mr. Foster was engaged in criminal activity. Consequently, the Court of Appeals ruled the seizure of Mr. Foster under these circumstances was not a valid Terry stop.

The court reasoned that the true nature of the stop was for officer safety. Still, however, Officer Anderson did NOT frisk Mr. Foster for weapons. The court said, ” . . . because the only legal basis to seize Mr. Foster was for officer safety, we are constrained to hold that the officer’s decision to forego frisking Mr. Foster amounts to continued detainment without a legal basis.”

The court concluded that Mr. Foster’s consent to search was obtained by exploitations of his prior illegal seizure, and as a result, the evidence obtained as a result of his consent to search must be suppressed.

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. McDonald: Prior Misdemeanor DV Convictions Count Toward Pointable “Offender Score” in Present Felony DV Charges & Convictions.

Assault, Domestic Violence, felony, Jail, law enforcement, Unlawful Imprisonment, Washington Court of Appeals, , ,

Co-Parenting with a No-Contact Order | Blog | Talking Parents

In State v. McDonald The Court ruled that violations of a Domestic Violence No-Contact Order are included in an offender score for felony DV convictions.

In this case, the defendant Christopher McDonald was charged with Assault of his girlfriend Julianne Vanas  during a car ride. The court entered No-contact Orders prohibiting contact between the defendant and his girlfriend. The defendant contacted Vanas via phone numerous times while he was in custody. The jail recorded the phone calls. At one point, the defendant told Vanas she needed to be persistent about calling the Prosecutor and saying she would not follow through with the charges.

At trial, the defendant was convicted of Felony Tampering With a Witness and six gross misdemeanor violations of a No-Contact Order. Regarding the charge of Assault in the Second Degree, the jury returned a guilty verdict on the lesser offense of Assault in the Fourth Degree, also a gross misdemeanor. By special verdicts, the jury found each count was domestic violence. The jury returned not guilty verdicts on Unlawful Imprisonment and Assault Fourth Degree.

At sentencing, the court calculated McDonald’s offender score as “7” based on prior convictions. Because McDonald’s current conviction was a domestic violence offense, the court added 1 additional point for each of the current domestic violence gross misdemeanors, yielding a total offender score of 14 points (this is HIGH). The court sentenced McDonald to 51 months prison for Tampering With a Witness and imposed consecutive sentences for the Assault Fourth Degree and No-Contact Order convictions. The defendant appealed, saying the trial court miscalculated.

The Court of Appeals upheld the trial court’s calculations of the defendant’s felony score pursuant to RCW 9.94A.525(21).

For those who don’t know, RCW 9.94A.525 provides: “If the present conviction is for a felony domestic violence offense where domestic violence as defined in RCW 9.94A.030 was plead and proven . . . count points as follows: (c) Count one point for each prior conviction for a repetitive domestic violence offense as defined in RCW 9.94A.030, where domestic violence as defined in RCW 9.94A.030, was plead and proven after August 1, 2011.”

Here, the defendant argued (1) the statute does not apply, (2) the court gave erroneous jury instructions, (3) he was given ineffective assistance of counsel, and (4) the trial court improperly included his six current convictions for violating a domestic violence No-Contact order in calculating his offender score for Tampering With a Witness – a domestic violence conviction.

The court rejected the defendant’s arguments. It reviewed the legislative intent of the statute from the plain language enacted by the legislature, considering the text of the provision in question, the context of the statute in which the provision is found, related provisions, and the statutory scheme as a whole. The Court also stated, “We must avoid constructions that yield unlikely, strange or absurd consequences.” And here, apparently the defendant’s interpretation of the law was unpersuasive.

My opinion?  . . . it doesn’t seem fair. Yes, domestic violence is an awful situation. It has horrible effects on people’s lives, including the families and children of those involved. Still, it doesn’t seem fair or equitable that a person with minor domestic violence convictions have those convictions count toward a felony score.

Let’s assume these “minor convictions” for domestic violence included a Malicious Mischief Third Degree conviction for breaking a vase while arguing with a girlfriend, or a minor Assault Fourth Degree domestic violence conviction involving a “push & shove” with no injuries,  mutual combat and drugs/alcohol ingested by the defendant and victim prior to the argument.

It seems over-the-top that these types of domestic violence convictions can count toward a felony offender score and expose a defendant to substantially more months, if not years, in prison should they face a pending felony domestic violence charge.  This type of math inevitably kills negotiations between defendants and prosecutors. It forces defendants to go to trial. Is that justice?

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. Brock: The “Time for Arrest” Doctrine

Constitutional Rights, felony, Jail, law enforcement, police, Privacy, Search and Seizure, Search Warrant, Terry Stop, Washington Court of Appeals, , ,

Should school officials be allowed to search students? | Debate.org

In State v. Brock, the WA Court of Appeals held that police officers cannot search someone’s backpack and arrest them for Drug Offenses 10 minutes after contacting a suspect on a Terry stop.

“NO,” said the Court of Appeals in a recent decision.  the facts were such that during a Terry stop, an officer separated Mr. Brock from his backpack. The officer subsequently arrested Brock and searched his backpack, but not until nearly 10 minutes after separating Brock from the bag. Officer Olson told Brock that he was not under arrest. Officer Olson asked Brock to put down his backpack, and Brock complied.

Officer Olson did not find any weapons or any other items during his pat down of Brock. He did not pat down or search the backpack at that time. At trial, the trial court denied Brock’s motion to suppress, finding that this was a valid search incident to arrest under article I, section 7 of the Washington Constitution. However, the Court of Appeals reversed the decision.

Some explanation is necessary. A “Terry stop” is a brief detention of a person by police on reasonable suspicion of involvement in criminal activity but short of probable cause to arrest. The name derives from a famous United States Supreme Court decision titled, Terry v. Ohio.

Also, under the “time of arrest” rule, an officer may search personal articles in an arrestee’s actual and exclusive possession at or immediately preceding the time of arrest.

Here, the search of the defendant’s bag did not happen immediately after he was arrested. Officer Olson searched the bag roughly 10 minutes after seizing it from Brock. The bag was secured in Officer Olson’s truck from the time of seizure through the time of the search. Brock was 12 to 15 feet away from the vehicle and the backpack at the time of arrest and during the search of the backpack.

Brock had actual possession of the backpack when Officer Olson initiated the Terry stop and when he seized it. However, Brock did not have actual possession of the backpack at the time of his arrest. Brock’s backpack was neither on his person nor within his area of control at the time of his arrest. While Officer Olson had probable cause to arrest Brock when he seized the backpack, it is the arrest itself—not probable cause—that constitutes the necessary authority of law to search under article I, section 7.

Therefore, to find that this was a valid search incident to arrest, the Court said it must be convinced that, for the purposes of what is in an arrestee’s possession, “immediately prior to arrest” includes either the time between a valid Terry stop and the actual resulting arrest or the time between seizure of the backpack during the Terry stop and the resulting arrest. The Court concluded in saying that Washington Supreme Court’s opinions have not gone this far, and “We decline to do so here.”

My opinion? Good decision. It’s pleasing to know our courts are upholding the WA Constitution and following the stringent search and seizure caselaw. Kudos.

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. Saggers: When Officers Exceed the Scope of Searches Under Terry v. Ohio

911 Call, Assault, Constitutional Rights, felony, Firearm, law enforcement, police, Privacy, Search and Seizure, Search Warrant, Terry Stop, Washington Court of Appeals, Washington State Patrol, , ,

Terry V. Ohio (@ohio_terry) | Twitter

In State v. Saggers, the WQA Court of Appeals held that police officers exceed the scope of a Terry Stop when  an informant’s tip is questionably (un)reliable and the exigency of the alleged serious offense has dissipated.

Police arrived at the home of defendant Andrew Saggers because a 911 call indicated an altercation occurred outside his home involving a shotgun. The 911 call was placed from a payphone. Although the caller provided his name, he was unknown to the police. When police went to the payphone, the caller was gone and the phone was hanging from the cord. The police contacted Mr. Saggers.

Although the present situation was neither dangerous nor life-threatening, the police inquired whether Mr. Saggers had a shotgun in the house. He admitted, “Yes.” The police searched his home and found the gun. Mr. Saggers was subsequently charged with Unlawful Possession of a Firearm. At trial, he was found guilty of the charges. The case went up on appeal.

The Court of Appeals held the police officers exceeded the scope of a search under Terry v. Ohio because the informant tip was unreliable and the emergency of any life-threatening situation was already passed. For those who don’t know, Terry v. Ohio is a landmark decision by the U.S. Supreme Court which held that the Fourth Amendment prohibition on unreasonable searches and seizures is not violated when a police officer stops a suspect on the street and frisks him or her without probable cause to arrest, if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime and has a reasonable belief that the person “may be armed and presently dangerous.

Here, however, the Court of Appeals ruled that although it is understandable that officers faced with a 911 call like this one would rightfully pursue an investigation, the 911 Call itself was unreliable. Additionally, the danger had already passed by the time officers arrived at Sagger’s house. Consequently, the officer exceeded the scope of a valid search under Terry v. Ohio. Based on these findings, the Court of Appeals reversed Saggers’ conviction.

Good opinion.

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.