Category Archives: Washington Court of Appeals

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

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

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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, , ,

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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, , ,

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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.

State v. Martines: More Good Caselaw on Blood Tests Taken After DUI Arrests

Blood Test, Constitutional Rights, Department of Licensing, Drug Offenses, DUI, Ignition Interlock Device, law enforcement, misdemeanor, police, Privacy, Search and Seizure, Search Warrant, Terry Stop, Washington Court of Appeals, Washington State Patrol, , ,

Both cops, drivers have rights at checkpoints | Local News | scnow.com

In State v. Martines, the WA Court of Appeals held that after police investigate and arrest a suspect for suspicion of DUI, the State may not conduct tests on lawfully procured blood samples without first obtaining a warrant that authorizes testing and specifying the types of evidence for which the sample may be tested.

The defendant was seen driving his SUV erratically. He veered into another car, careened across the highway, bounced off the barrier, and rolled over. A Washington State Trooper arrived and took Mr. Martines into custody. Martines smelled of intoxicants, had bloodshot watery eyes, and stumbled while walking.

Trooper Tardiff sought a warrant to extract blood samples from Martines. His affidavit of probable cause stated that a blood sample “may be tested to determine his/her current blood alcohol level and to detect the presence of any drugs that may have impaired his/her ability to drive.” He obtained a warrant that authorized a competent health care authority to extract a blood sample and ensure its safekeeping. The warrant did not say anything about testing the blood sample.

Martines’ blood was taken at a local hospital. Then it was tested for the presence of drugs and alcohol. The test results indicated that Martines had a blood alcohol level of .121 within an hour after the accident, and that the drug diazepam (Valium) was also present. Martines had a prior conviction for vehicular assault while driving under the influence. The State charged him with Felony DUI.

The trial court denied Martines’ motion to suppress. He was found guilty at trial. The case went up on appeal. The primary issue on appeal was that testing a blood sample for any purpose is a search for which a search warrant is required. Because the warrant authorizing the extraction of blood did not specifically authorize blood testing of any kind, Martines argued that the results should have been suppressed as the fruit of an illegal search.

The court held that (1) the extraction of the blood was one search while (2) the testing of the blood constituted another:

“The extraction of blood from a drunk driving suspect is a search.  Testing the blood sample is a second search.  It is distinct from the initial extraction because its purpose is to examine the personal information blood contains.  We hold that the State may not conduct tests on a lawfully procured blood sample without first obtaining a warrant that authorizes testing and specifies the types of evidence for which the sample may be tested.”

In short, the court held that extracting someone’s blood is a first search, and testing the blood is a second search. The first search – the initial extraction – is totally different than the second search, which is analyzing the blood. Because the second search is so intrusive (blood contains someone’s personal DNA code, pregnancy results, information on diseases, etc.), a second warrant is needed. Consequently, the State may NOT test blood samples without first obtaining a warrant that authorizes testing. The warrant must specifically state the types of evidence they’re looking for.

My opinion? State v. Martines is an interesting decision. I admire the Court of Appeals for making a decision which is consistent with Missouri v. McNeely (discussed in another blog) and going one step further favoring a defendant’s constitutional rights under the 4th Amendment.

The opinion prevents police officers from getting a boilerplate search warrant and going on fishing expeditions when they pull people over on suspicion of DUI. The officers must be trained to determine what exactly they’re looking for; be it drugs, alcohol or both. Saying someone has bloodshot/watery eyes, slurred speech and smells of intoxicants does not, by itself, cut it anymore.

Good job, Court of Appeals. I’m impressed.

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. Barry: Whether a Defendant’s Demeanor Spells Trouble During Trial

Constitutional Rights, felony, Self-Incrimination, Sex Crimes, Washington Court of Appeals, , ,

Demeanor, Demeanor, Demeanor - Trial Practice Tips

In State v. Barry, the WA Court of Appeals decided it does NOT violate a defendant’s Constitutional rights to allow a jury to consider the defendant’s in-court demeanor during trial.

The State charged Barry with first degree child molestation (DV). The case proceeded to trial. Important to note, Barry chose not to testify. During deliberations, the jury sent a note asking the court, “Can we use as ‘evidence for deliberation,’ our observations of the defendants actions and demeanor during the court case?” The trial court instructed the jury, “Evidence is what you witness in the courtroom.” Barry objected to the jury instruction. The jury found Barry guilty as charged. Barry appealed.

The Court of Appeals reasoned that the trial judge misstated the law in giving that instruction because the defendant did not testify; and therefore, his demeanor was not evidence presented during trial.

Nevertheless, the Court of Appeals rejected arguments that Barry’s 5th Amendment rights against self-incrimination were violated. It stated, “Here, neither the State nor the trial court forced Barry to do anything with regards to his demeanor. He had full control over how he acted in the courtroom. Other than citing the Fifth Amendment, Barry does not explain how he was compelled to give evidence against himself. We hold that allowing the jury to consider the defendant’s demeanor as evidence does not violate the Fifth Amendment.”

Finally, the Court of Appeals discussed the absence of any discussion on the record regarding Barry’s demeanor. In other words, there was a lack of record on how Barry behaved. The Court said the following:

“Without any information identifying what demeanor the jury may have considered, it is impossible to know whether that consideration was favorable or unfavorable to Barry. In the abstract, a defendant’s behavior is neutral. Depending on the demeanor, a jury could draw a negative inference or a positive inference from how the defendant acts during trial. As a result, merely stating that a jury may have considered a defendant’s demeanor without any information about that demeanor cannot establish prejudice because that consideration may have favored the defendant.”

My opinion? This case is tough. I’ll agree with the Court of Appeals in saying that what we don’t know is the pink elephant in this room. I’ve had many jury trials. During preparations, I thoroughly inform defendants how to properly behave in court. And yes, it’s extremely difficult for many defendants to stay calm and stoic during trial. Most defendants are very emotional about the case, especially if they believe the State’s witnesses are lying and/or exaggerating  during testimony.

Consequently, the decision on whether to testify is a strategic one. And this decision – whatever it may be – can backfire for many reasons. Typically, jurors want to hear defendants testify. However, if a defendant does not testify, then human nature dictates that juries perceive how the defendants acts during 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.

State v. Green: When Inventory Searches Become Overbroad

Constitutional Rights, DUI, felony, law enforcement, police, Pretrial Investigations, Privacy, Search and Seizure, Search Warrant, Theft, Washington Court of Appeals, Washington State Patrol, , ,

Vehicle Inventory Search - Daigle Law Group

In State v. Green, the WA Court of Appeals decided that evidence of Identity Theft  was not admissible when the officer obtained the evidence after searching the defendant’s car during a DUI and Hit & Run investigation.

Mr. Green was arrested for DUI after his vehicle struck a pedestrian who later died. After arrest, police searched Mr. Green’s car. They found a paper bag containing numerous receipts. After more investigating,  it was later determined the receipts were evidence of purchases using stolen credit cards. The car was later towed to a police impound lot. The officer began investigating the defendant for theft/fraud charges in addition to the Vehicular Homicide charge. However, the officer’s search warrant was only specific to the Vehicular Homicide charge.

A few days later, the officer obtained a second search warrant to search the car for evidence of fraud and identity theft. Mr. Green moved to suppress the receipts. The state argued the receipts were properly seized pursuant to an inventory search and were admissible pursuant to the independent source doctrine.

Some background is necessary. Under the 4th Amendment to the U.S Constitution and article I section 7 of the Washington Constitution, warrantless searches and seizures are unconstitutional. However one exception to the warrant requirement are Inventory Searches accompanying a lawful vehicle impound. The purpose of an inventory search is to (1) protect the vehicle owner’s property; (2) protect the police against false claims of theft by the owner, and (3) protect the police from potential danger.

The direction and scope of an inventory search must be limited to the purpose of justifying the exception. Under the Independent Source Exception, evidence obtained by unlawful governmental action is not suppressed under the exclusionary rule if the evidence was obtained pursuant to a valid search warrant or other lawful means independent of the unlawful action.

In this case, the officer did not find the receipts as part of an inventory search. Stated different, the officer looked in the paper bag but did not consider the receipts to be relevant to the inventory search. Therefore, there was no evidence that he inventoried them. The officer seized the receipts for investigatory purposes on a different matter altogether, namely, the soon-to-be-pending Identity Theft charges.

 

The Court further reasoned the receipts were not admissible under the Independent Source doctrine because the officer neither found the receipts nor had knowledge of them through an independent source.

My opinion? This was a reasonable, practical approach. In this case, it makes no sense to allow the police to conduct investigations of different crimes other than the one they are already working on, especially if they lack independent evidence to begin with.

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. Quaale: Mistrials Happen When Police Officers Offer Opinion Testimony

Constitutional Rights, DUI, law enforcement, misdemeanor, police, Prosecutorial Misconduct, Washington Court of Appeals, , ,

Pushback on Capitol Police chief testimony continues - Roll Call

In State v. Quaale, the WA Court of Appeals wrote an excellent opinion on the issue of whether a defendant’s right to a fair trial was violated when the Prosecutor invited objectionable testimony from the officer.

The defendant was charged with Eluding Police and DUI. At trial, the Trooper  was asked to describe the extent of his experience, explain the Horizontal Gaze Nystagmus and the procedure for testing it, and tell the jury about his administration of the test to the defendant. The prosecutor also asked, “In this case, based on the HGN test alone, did you form an opinion based on your training and experience as to whether or not the defendant’s ability to operate a motor vehicle was impaired?”

Rightfully, the defendant’s lawyer immediately objected that the Trooper was being asked to provide an opinion on the ultimate issue determining guilt. The objection was overruled. The Trooper answered, “Absolutely. There was no doubt he was impaired.”

The Court of Appeals reasoned that impermissible testimony regarding the defendant’s guilt may be reversible error because such evidence violates the defendant’s constitutional right to a jury trial, which includes independent determination of the facts by the jury. Here, and even where expert testimony is helpful to the jury, it is unnecessary for a witness to express belief that certain facts or findings lead to a conclusion of guilt. Opinion testimony should be avoided if the information can be presented in such a way that the jury can draw its own conclusions.

 My opinion? The defense attorney was very smart to object to the Officer’s opinion testimony and preserve the issue for appeal. Opinion testimony should NEVER be allowed at trial. The State’s witnesses – including officers – may only testify to their observations. They are not expert witnesses who can offer opinions.

Before trial, I routinely draft and argue motions in limine expressly requesting the judge to instruct the Prosecutor to not ask questions instructing witnesses/officers to provide opinion testimony. These motions strengthen a standing objection and help preserve legal issues for appeal when they are violated. Great 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.