Category Archives: Washington Supreme Court

State v. Besola: Overbroad Search Warrant

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In State v. Besola, the Washington Supreme Court held that a search warrant was overbroad. Because the warrant failed to meet the Constitution’s “particularity” requirement, the court reversed the Defendant’s convictions for Possession of Depictions of Minors Engaged in Sexually Explicit Conduct and Dealing in such depictions.

Mark Besola and Jeffrey Swenson lived together in Besola’s house. After a friend of Swenson’s, Kellie Westfall, was arrested, she told police that she had seen drugs and child pornography at Besola’ s house. Based on the information provided by Westfall, a judge issued a search warrant for illegal drugs but declined to issue a search warrant related to child pornography at that time.

At the scene, police saw CDs and DVDs with handwritten titles that implied that they contained child pornography. On the basis of this observation, police requested and obtained an addendum to the search warrant.

The language of that amended warrant (and whether it was sufficiently particular) is at the heart of the legal issue in this case.

The warrant indicated that the crime under investigation was “Possession of Child Pornography R.C.W. 9.68A.070.” Clerk’s Papers (CP) at 312 (boldface omitted). The warrant indicated that “the following evidence is material to the investigation or prosecution of the above described felony”:

1. Any and all video tapes, CDs, DVDs, or any other visual and or audio recordings; 2. Any and all printed pornographic materials; 3. Any photographs, but particularly of minors; 4. Any and all computer hard drives or laptop computers and any memory storage devices; 5. Any and all documents demonstrating purchase, sale or transfer of pornographic material.

Police seized a number of computers, memory storage devices, CDs, and DVDs. They ultimately found child pornography on one computer and on 41 disks with handwritten titles. They also found a DVD duplicating device (also known as a DVD burner) attached to the computer. Some disks contained duplicated copies of the child pornography.

A handwriting expert testified that Besola’s handwriting was on at least one of the disks containing child pornography and that indications of both Besola’s and Swenson’s handwriting were on multiple other disks. Both defendants were charged with Possession of Depictions of Minors Engaged in Sexually Explicit Conduct and Dealing in such depictions.

Although the Court of Appeals affirmed the convictions, the WA Supreme Court granted review on the issue of whether the search warrant meet the Fourth Amendment’s particularity requirement.

The Court reasoned that the Fourth Amendment to the United States Constitution requires warrants to “particularly describe the place to be searched, and the persons or things to be seized.” That requirement is heightened if the warrant authorizes a search for materials protected by the First Amendment to the United States Constitution.

For guidance, the court reviewed a 1992 case, State v. Perrone, that involved similar circumstances. In Perrone, the Court decided that the warrant in that case failed to meet the particularity requirement of the Fourth Amendment, in part because it provided for the seizure of items that were legal to possess, such as adult pornography.

Here, the Court decided the decision in Perrone is binding in this case. Under Perrone, the court concluded that many provisions of this search warrant were similarly overbroad. As in Perrone, the descriptions of the items to be seized expressly included materials that were legal to possess, such as adult pornography and photographs that did not depict children engaged in sexually explicit conduct.

Similar to Perrone, these descriptions could easily have been made more particular by adding the precise statutory language, “depictions of a minor engaged in sexually explicit conduct.” As in Perrone, the police in this case failed to add that language to their search warrant. Therefore, under Perrone, these provisions were insufficiently particular and thus invalid.

The WA Supreme Court denied the State’s arguments that the warrant in this case is saved by a citation to the child pornography statute at the top of the warrant. The Court reasoned the State was incorrect because the statutory citation does not modify or limit the items listed in the warrant, so it does not save the warrant from being overbroad. More importantly, said the Court, the State’s position conflicts with Perrone and would hinder the goals of the warrant particularity requirement.

Because the warrant fails to meet the Constitution’s particularity requirement, the WA Supreme Court reversed these convictions.

My opinion? Good decision. Yes, possessing child porn is illegal. However, so are illegal searches. Warrants must particularly describe the items believed to found. Otherwise, they become a meaningless ticket allowing police to engage a fishing expedition of our bodies, property, vehicles and homes. 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. Mayer: Officer Gives Confusing Miranda Warnings

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In State v. Mayer, the WA Supreme Court decided that a deputy sheriff inadequately advised the defendant of his Miranda rights when he initially told the defendant that a lawyer would be appointed for him prior to questioning if he could not afford one but also said that no lawyer would be appointed for him unless he was arrested, jailed, and taken to court.

Here, defendant Nicholas Mayer was suspected of robbing KC Teriyaki,  a casual restaurant in Salmon Creek, while the employees were closing the restaurant for the day. The masked gunmen pushed one of the employees inside the restaurant; pointed a gun at the employee; grabbed a bag from inside; and then fled with the bag, which contained cash from the day’s sales. The apparent motive for the robbery was because Mr. Mayer’s sister, Emily Mayer, was a disgruntled ex-employee.

Police stopped Mr. Mayer’s vehicle, detained Mayer and the vehicle’s other occupants, and transported them to the police station for questioning regarding the robbery. Deputy Tom Dennison of the Clark County Sheriff’s Office questioned Mayer in an interview room at the police station. Dennison began by reading Mayer his Miranda rights and asking if he could record the interview. Mayer initially waived his Miranda rights and agreed to the recording.Once recording began, Dennison again advised Mayer of his Miranda rights:

“You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right at this time to talk to a lawyer and have him present with you while you are being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before questioning if you wish. You can decide at any time to exercise these rights and not answer any questions or make any statements.”

This time, however, Mayer asked Dennison to clarify how he could obtain appointed counsel:

DEPUTY DENNISON: “Do you understand each of these rights as I’ve explained them to you?”

MR. MAYER: Yes. Um, If I wanted an attorney and I can’t afford one, what — what would — ?

DEPUTY DENNISON: If you wanted an attorney– you know, if you were charged with a crime and arrested, if you wanted an attorney and couldn’t afford one, the Court would be willing to appoint you one. Do you want me to go over that with you again?

MR. MAYER: Yeah, but how would that work? Will you be– how it– how I–

DEPUTY DENNISON: You’re not under arrest at this point, right?

MR. MAYER: Oh, okay. Okay.

DEPUTY DENNISON: So, if you were, then you would be taken to jail and then you’d go before a judge and then he would ask you whatever at that point, if you were being charged, you would afforded an attorney if you couldn’t hi — you know, if you weren’t able to afford one.

MR. MAYER: All right. I understand.

DEPUTY DENNISON: Understand?

MR. MAYER: Yeah.

DEPUTY DENNISON: Okay. So you do understand your rights?

MR. MAYER: Yes.

After this exchange, Mayer waived his Miranda rights, agreed to speak with Dennison regarding the robbery, and made incriminating statements. Mayer admitted, among other things, that on the day of the robbery he met with his sister Emily, who drove the getaway car, and John Taylor, the other robber; they drove to the teriyaki restaurant; Mayer entered the restaurant with Taylor; Taylor was armed with a handgun, and Mayer had a knife; Mayer told the employees “give me the money”; Taylor grabbed the deposit bag containing money; Mayer ran from the restaurant with Taylor; they were picked up by Emily; and Mayer split the proceeds of the robbery with Taylor.

Based on the confession, Mayer was arrested and charged with 11 criminal counts (later reduced to 10 counts), including Robbery in the First Degree. Mayer moved to suppress the incriminating statements he made during his interview with Officer Dennison, but the superior court denied the motion after a CrR 3.5 hearing.

The jury ultimately convicted Mayer on all 10 pending counts. The trial court sentenced Mayer to 306 months of imprisonment. The Court of Appeals unanimously affirmed the conviction and sentence in an unpublished opinion. The WA Supreme Court granted review on his Miranda challenge.

For those who don’t know, the explanation of Miranda rights must be given before any custodial interrogation, stemming largely from the Fifth Amendment privilege against self-incrimination.  The person detained and interrogated must be made aware of the right to remain silent, the right to consult with an attorney and have the attorney present during questioning, and the right to have an attorney appointed if indigent. Without a Miranda warning or a valid waiver, statements might be inadmissible at trial under the exclusionary rule (e.g., they cannot be used as substantive evidence of guilt in criminal proceedings). See Miranda v. Arizona, 384 US 436 (1966).

Here, the WA Supreme Court ruled that Mayer’s confession should have been suppressed. They reasoned that Officer Dennison’s linkage of Mayer’s right to appointed counsel to conditional future events (arrest, jail, charge, and arraignment) contradicted his earlier statements that Mayer could have access to appointed counsel “before questioning” and that he could exercise his rights “at any time.” Critically, Officer Dennison did not tell Mayer that despite the fact that no appointed attorney was immediately available, Mayer’s other Miranda rights remained in full effect and he could protect his right to the presence of counsel by remaining silent until he could speak to an attorney.

Under these circumstances, ruled the court, Officer Dennison’s explanation of Mayer’s rights was deficient, and the State has failed to meet its burden of establishing that Mayer knowingly and intelligently waived his rights. Mayer’s subsequent confession therefore should have been suppressed. However, the Court further reasoned that because any error in admitting the confession was harmless, the court affirmed Mayer’s conviction.

My opinion? Good decision. This Miranda advisement from the police officer was contradictory and confusing. The deputy should have clarified that the defendant was not obligated to respond to questions until he had the opportunity to confer with a lawyer. Again, good decision. Unfortunately for the Defendant, however, the WA Supreme Court also decided the error was harmless. In other words, he was still convicted of the charges and must serve his sentence.

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. Bentura-Ozuna: Letter Found in Jail Cell Supports Conviction for Witness Intimidation

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In State v. Bentura-Ozuna, the WA Supreme Court held that the defendant committed the crime of Intimidating a Witness  under RCW 9A.72.110(2) when a letter found in his jail cell directed a threat to a former witness because of the witness’s role in an official proceeding. The statute defines a “threat” to mean “to communicate, directly or indirectly, the intent to harm another.”

Here, In June 2010, Ozuna was incarcerated in the Yakima County Department of Corrections (Yakima County Jail). Ozuna was awaiting sentencing for a prior conviction. The conduct underlying that conviction involved Augustine Jaime Avalos, a member of the same gang as Ozuna. Avalos had testified against Ozuna in Ozuna’s underlying trial and was also incarcerated in the Yakima County Jail.

On June 8, when Ozuna was moved from one prison cell to another, a corrections officer found two unstamped, unsealed letters in his possession. The deputy opened the letters. One letter was meaningless to this issue. The other letter said the following:

Ey homie, I just got your (unreadable). Well it was a blessing to hear from you. It put’s a smile on my face to know that your ready to ride for me. . .. As you already know, I agreed to a plea deal for 10 years 9 months cause of a pussy that don’t know how to ride or Die. He would rather break weak than to honor our sacred code of silence. He is now marked a rat and a piece of shit in my book He has sealed his fate and now it’s just a matter of time. He rode with me and was given my trust and he decided to dishonor that privaledge …. [A ]11 I can say for that fool is, you know what time it is. You guys let him live in luxery for way to long already. . . How can you live with a rata like that and still be able to rest in peace in that puto’s presence? I hope and pray for satisfaction before I leave this building and may that fool suffer and Die in his rat hole. Fucken snitch bitch rat! … That puto took 10 years of my life and a fucken leva from my barrio, “my big homie” “Gorge” is living in the same house as him …. Gorge could of did something but just decided to let that puta slide and live under the same roof with him …. Tell that fool he’s a piece of shit just like him. Let’em know that this is Campana Gang! He put’s the crack in our bell. No loyalty, no honor, no heart! … Tell’ em he’s as good as dead to me.

Let that fool feel the wrath and let’ em know the rata that he is and tell’em that I siad that bad things come to those that snitch. May he rest in piss … So now you know what I want primo, don’t hesitate vato. Take action, reep the rewards later. Don’t think, just act. … Hit me up later after the shit get’s handled. Do it on the 25 cause that’s when I have court, and I want to have a smile on my face that day knowing that … fool’s getting a lil taste of what’s coming to him. The 25 is the day I get sentenced. Good looking out Primo, don’t let me down fucker! … Tell’em that Vanessa’s gonna be the one to set him up for us, mark my words! Show him how set ups are done. There just waiting for him to get out. … Lol. … Satisfaction will be mine! Let’ em know that he fucked up.

On July 9, Avalos was assaulted by inmate David Soto while in a courthouse holding room. Avalos received stiches at the hospital for his injuries. The inmates who were present when Avalos was injured were not cooperative. Ozuna was not present during the assault.

At trial, the Prosecution produced ample testimony confirming that there was a threat to another person in the letter, however,  no evidence established that the letter was delivered to anyone before the officer confiscated it.

The State also produced expert testimony about gang culture from a Sunnyside Police Department officer who worked in the Yakima area and was knowledgeable about the local gangs, as well as the individuals at issue here.

Similarly, two other officers from the Yakima County Jail discussed the status of being a “shot caller” or “tank boss,” meaning someone who has elevated decision-making authority within a gang or prison. One officer testified that Ozuna was a “shot caller” in the Yakima County Jail.

Before trial, Ozuna argued a Knapstad motion to Dismiss the charge for lack of evidence. Defense counsel argued that “directing a threat at somebody means not keeping it to yourself; it means directing it to somebody, not necessarily … to the intended victim, but to somebody. The Court denied the Knapstad motion to dismiss.

The trial proceeded, and the jury returned a verdict convicting Ozuna of Intimidating a Former Witness. The trial court entered judgment and imposed an exceptional sentence of 10 years based on the jury’s finding of gang-related aggravating factors. Ozuna appealed.

The WA Supreme Court reasoned that a communication must be transmitted and received. However, a person may “direct a threat” under the intimidation of a former witness without that threat being communicated to the threat’s target. “The threat may be transmitted to a third party.” Consequently, there was sufficient evidence at trial for a rational jury to find that Ozuna directed a threat to a third party or to Avalos himself.

The court further reasoned that Ozuna had the state of mind, motivation, and opportunity to direct a threat regarding Avalos. Avalos had been a longtime gang member with Ozuna, and Avalos testified against Ozuna. They were incarcerated in the same prison. Ozuna had gang allies in the prison. Avalos had enemies. Furthermore, testimony from witnesses established the gang follows a strict “no snitch” code, enforced by violent retaliation.

Here, Ozuna’s confiscated letter reveals his state of mind. It said, for example, “Let that fool feel the wrath and let’ em know the rata that he is and tell him that I siad that bad things come to those that snitch. May he rest in piss.” Additionally, the jury could consider the timing of Avalos’s assault by a member of Ozuna’s gang, David Soto. “The evidence is sufficient insofar as it establishes Ozuna’s state of mind, motivation, and opportunity to direct a threat regarding Avalos.”

The WA Supreme Court affirmed Ozuna’s conviction.

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. O’Dell: Court May Consider Defendant’s Youth at Sentencing

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In State v. O’Dell,  the Washington Supreme Court held that a defendant’s youthfulness can support a lower prison sentence.

About 10 days after his 18th birthday, O’Dell had sex with 12-year-old A.N. The two met up on Sunday afternoon, along with a mutual friend, to drink wine and smoke cigars in the woods. Apparently, she, the friend, and O’Dell made plans to meet up again later that night but that the friend did not join them as planned. She and O’Dell sat in the woods to wait for their friend and, after a few minutes of talking, O’Dell forcibly raped her.

Sean O’Dell was convicted of Rape of a Child Second Degree. At O’Dell’s sentencing hearing, the defense requested a lighter sentence because, as he said it,  “The defendant’s capacity to appreciate the wrongfulness of his conduct, or to conform his conduct to the requirements of the law, was significantly impaired by youth.”

The defense also argued that when O’Dell committed his offense, he “was still in high school, associating with school age persons” and “was not some mid-twenties man hanging out at the local high school or trolling the internet for young people.”

Finally, the defense quoted portions of the United States Supreme Court’s decision in Roper v. Simmons, which held that it is unconstitutional to impose the death penalty on a juvenile. Roper relied on research, by various medical and psychiatric associations, indicating that juveniles are more susceptible to negative influences and impulsive behavior and therefore less morally culpable for their crimes relative to adults.

Despite Defense Counsel’s arguments, the trial court sentenced O’Dell to 95 months of prison and said that it could not consider age as a mitigating circumstance.

O’Dell committed this offense 10 days after his 18th birthday. As stated by his defense attorney, “had the incident happened two weeks prior, and assuming the State could not convince the Court to prosecute O’Dell as an adult, he would be facing 15-36 weeks in a well-guarded juvenile detention facility … rather than 78-102 months in an adult prison.”

On appeal, O’Dell challenged his 95-month sentence. He argued that the trial court abused its discretion when it refused to consider O’Dell’s own relative youth as a basis to depart from the standard sentence range.

The WA Supreme Court ruled that the trial court erred when it refused to consider O’Dell’s youth as a mitigating factor justifying a lower sentence. First, it reasoned that all defendants 18 and over are, in general, equally culpable for equivalent crimes. But it could not have considered the particular vulnerabilities – for example, impulsivity, poor judgment, and susceptibility to outside influences – of specific individuals. The trial court is in the best position to consider those factors.

Second, the WA Legislature defining an adult felony offender as “18 and over” did not have the benefit of psychological and neurological studies showing that the parts of the brain involved in behavior control continue to develop well into a person’s 20’s:

These studies reveal fundamental differences between adolescent and mature brains in the areas of risk and consequence assessment, impulse control, tendency toward antisocial behaviors, and susceptibility to peer pressure. Until full neurological maturity, young people in general have less ability to control their emotions, clearly identify consequences, and make reasoned decisions than they will when they enter their late twenties and beyond.

Finally, the Court concluded, in light of what we know today about adolescents’ cognitive and emotional development, the defendant’s youth may, in fact, relate to a defendant’s crime that it is far more likely to diminish a defendant’s culpability; and that youth can, therefore, amount to a substantial and compelling factor justifying a lighter sentence. “For these reasons, a trial court must be allowed to consider youth as a mitigating factor when imposing a sentence on an offender like O’Dell, who committed his offense just a few days after he turned 18.”

The WA Supreme Court remanded O’Dell’s case for re-sentencing.

My opinion? Good decision. The defense attorney was very intelligent to provide the court with studies showing that young offenders have less ability to control their emotions and impulses. This is very true. Indeed, this reasoning is exactly why the Washington Legislature adopted the Juvenile Justice Act in 1977 and treats young offenders differently than adult offenders.

Here, although the Defendant was categorically denied Juvenile Court because he was 18 years old, he was barely 18 years old when he committed the offense. He’s much closer to being a child than an adult. And until a young person turns 25, their brains haven’t fully developed. 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. Martines: WA Supreme Court Finds Defendant Guilty of DUI on Blood Test Case

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Bad news.

In State v. Martines, the Washington Supreme Court reversed the WA Court of Appeals Division I. I blogged about this case last year in State v. Martines: More Good Caselaw on Blood tests Taken After DUI Arrests. There, the WA Court of Appeals version of State v. Martines held that the blood test performed on Martines was an unlawful warrantless search. The Court of Appeals also reasoned that drawing blood and testing blood constitute separate searches, each of which requires particular authorization, and that the warrant here authorized only a blood draw.

The original Martines opinion appeared strong. It was rooted in the United States Supreme Court’s decision in Missouri v. McNeely; which requires police officers to obtain search warrants for blood draws in DUI cases when exigent circumstances do not otherwise exist. It also followed Washington State legalizing marijuana, thus necessitating stronger regulations and monitoring of blood tests performed during DUI investigations.

The WA Supreme Court decided differently in a short, scathing opinion signed by all justices.

First, the Court held that a warrant authorizing the testing of a blood sample for intoxicants does not require separate findings of probable cause to suspect drug and alcohol use so long as there is probable cause to suspect intoxication that may be caused by alcohol, drugs, or a combination of both.

Second, the Court  further held that the search warrant lawfully authorized testing Martines’s blood sample for intoxicants because it authorized a blood draw to obtain evidence of DUI. In other words, the search of Martines’s blood did not exceed the bounds of the search warrant when a sample of Martines’s blood was extracted and tested for intoxicants anyway.

My opinion?

Bad decision. I’m amazed the WA Supremes didn’t discuss Missouri v. McNeely at all. Not once. McNeely profoundly and significantly evolved search and seizure law concerning blood draws in DUI investigations. Indeed, McNeely was the underpinnings for Division One Court of Appeals case State v. Martinez. Yet the WA Supremes ignore McNeely as if it didn’t exist. Ignoring case precedents violates stare decisis, plain and simple.

Hopefully, this case gets appealed to the U.S. Supreme Court for further review.

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

State v. Brock: WA Supreme Court Reverses Search of Backpack Case

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In State v. Brock, the WA Supreme Court reversed the Court of Appeals decision to reverse the Defendant’s convictions for 10 counts of Identity Theft in the Second Degree, 3 counts of Forgery, and violation of the Uniform Controlled Substances Act.

Last year, in State v. Brock: The “Time for Arrest” Doctrine, I blogged about how the Court of Appeals reversed Brock’s conviction, agreeing with Brock that it was not a valid search of his person under article I, section 7 of the Washington Constitution. The court reasoned that under the “Time for Arrest” doctrine, Brock did not have actual, exclusive possession of the backpack “immediately preceding” arrest and reversed Brock’s conviction on that basis.

Well, the WA Supreme Court decided different.

The Court reasoned that the “Time for Arrest” doctrine didn’t apply because the Defendant’s backpack was a part of his person at the time of arrest:

“Under these circumstances, the lapse of time had little practical effect on Brock’s relationship to his backpack. Brock wore the backpack at the very moment he was stopped by Officer Olson. The arrest process began the moment Officer Olson told Brock that although he was not under arrest, he was also not free to leave. The officer himself removed the backpack from Brock as a part of his investigation. And, having no other place to safely stow it, Brock would have to bring the backpack along with him into custody. Once the arrest process had begun, the passage of time prior to the arrest did not render it any less a part of Brock’s arrested person.”

Based on that the WA Supremes reversed the Court of Appeals and decided the search was a valid search incident to arrest.

My opinion? Obviously, I agree with Justice McCloud’s dissenting opinion. He stated that the majority opinion ignores the strict limitations imposed on law enforcement during a Terry stop, confuses the justifications for a Terry frisk with the justifications for a search incident to arrest, and “conflicts with our precedent holding that a full custodial arrest is a prerequisite to any search incident to arrest.”

Justice McCloud couldn’t have said it better in the tongue-in-cheek retort in the last sentence of his dissent:

“I fear the majority’s new rule will only invite further expansions of our ‘narrow’ and ‘jealously guarded’ exception to the warrant requirement.”

Exactly.

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

Is Texting While Driving the New DUI?

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Police Officer Posing As Construction Worker

Recently, Marietta Police dressed up as a construction workers at a busy intersection to catch distracted drivers who were text messaging while driving. The police go as far as busting drivers who are texting while stopped at red lights. It appears that going undercover is an effective way to bust drivers texting, tweeting or checking emails behind the wheel.

“What we’ve done here is we’re able to put officers in the roads so we’re able to get close enough almost inside their cars so we can look down and see exactly what they’re doing on their phones,” said Marietta police Officer Nick Serkedakis. “I really think this is the DUI of the future. Impairment is still a problem, but this distracted driving is killing as many people as drunk drivers.”

The tickets are $150 and one point on your license.

Can a program like this – one where WA police officers pose as construction workers at certain locations to observe texting drivers – be implemented in Washington State?

Probably not.

This program is very similar to DUI checkpoints, which were basically outlawed in 2008. For those who don’t know, sobriety checkpoints (also called DUI checkpoints) are locations where law enforcment officers are stationed to check drivers for signs of intoxication and impairment. Many jurisdictions utilize sobriety checkpoints as part of their larger drunk driving deterrance program. Due to legal issues surrounding their use, not all states conduct sobriety checkpoints. Some states have laws authorizing their use. Others forbid them or are silent on the issue.

According to the Government’s Highway Safety Association (GHSA), Washington State is one of only 12 states which do not conduct DUI checkpoints. The story is interesting. In 2008, then-Governor Christine Gregoire wanted the state Legislature to authorize police to set up sobriety spot checks, a practice unseen in Washington since the state Supreme Court declared it unconstitutional in 1988 under City of Seattle v. Messiani.

Some background is necessary. In Messiani, the Washington State Supreme Court decided that the Seattle Police Department’s sobriety checkpoint program was constitutional. In short, police officers set up roadblocks where all oncoming motorists were stopped. The police lacked warrants and any particular suspicion of criminal activity. The City of Seattle argued that the State’s interest in the legal operation of vehicles outweighs any privacy interest under Article I, Section 7 of the WA Constitution. Ultimately, the Washington State Supreme Court concluded that the City of Seattle’s position was unlawful, and held that sobriety checkpoints were unconstitutional.

At any rate, Governor Gregoire’s proposed DUI Checkpoint legislation failed. The ACLU even got involved. In the end, Legislators simply lacked the political will overturn the WA Supreme Court’s City of Seattle v. Messiani. 

Unlike Washington, however, Georgia has  actively legalized DUI checkpoints. They are conducted weekly and aggressively; and upheld under the State of Georgia’s Constitution.

Due to the differences, I can’t see WA police officers successfully pulling off an anti-text messaging campaign like the Georgia police officers can. This campaign is too similar to DUI checkpoints, which are illegal in Washington State.

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. Z.U.E.: Terry Stop Based on Unreliable Informant Tip Was Unlawful

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Good decision.

In State v. Z.U.E., the Washington Supreme Court decided that when police stop an individual based on an informant’s tip, there must be some “indicia of reliability” based on the totality of the circumstances. Here, there wasn’t.

The facts show that Z.U.E. was a juvenile passenger in a car stopped by police after several 911 callers reported a bald shirtless man seen carrying a gun. Another caller reported a 17 year old female gave the gun to the shirtless man. Based on these tips, police stopped a car believing that the female was in the car. They ordered Z.U.E out of the vehicle, searched him, and found marijuana on his person. The officers did not find any guns, nor did they find the bald, shirtless subject.

The state prosecuted Z.U.E for Unlawful Possession of a Controlled Substance and Obstructing a Law Enforcement Officer. At his trial, Z.U.E. argued a CrR 3.6 Motion to Suppress and essentially challenged the Terry stop and subsequent search incident to arrest. The police who stopped ZUE did not know how many 911 callers there were or the identities of the callers and did not corroborate the report regarding the female with a gun.  The trial court denied the motion. Z.U.E. was found guilty of the drug charge and acquitted on the Obstructing charge. Z.U.E. appealed. The WA Court of Appeals reversed, holding that the 911 calls lacked sufficient “indicia of reliability” to justify the stop. Again, the case went up on appeal – this time, by the State –  to the WA Supreme Court.

The WA Supremes affirmed the WA Court of Appeals and suppressed the evidence. In reaching their decision, the Court discussed Terry stops. In challenging the validity of a Terry stop, article I, section 7 of the WA Constitution generally tracks the U.S. Constitution’s  Fourth Amendment analysis. That said, warrantless seizures are presumed unreasonable, and the State bears the burden of establishing that the seizure falls within one of the carefully drawn exceptions to the warrant requirement. One such exception is a brief investigatory detention of a person, known as a Terry stop. For a Terry stop to be permissible, the State must show that the officer had a “reasonable suspicion” that the detained person was, or was about to be, involved in a crime.

They court further reasoned that when police stop an individual based on an informant’s tip, there must be some “indicia of reliability” based on the totality of the circumstances. There must be either (1) circumstances establishing the informant’s reliability or (2) some corroborative observation by the officers that shows the presence of criminal activity or the informer’s information was obtained in a reliable fashion. Here, the police did not have any articulable reason to suspect any of the passengers in the car of criminal activity. The seizure of Z.U.E was unlawful and the evidence obtained as a result of that seizure should have been suppressed.

My opinion? Good decision. This was a straightforward application of the law. The informant tips were unreliable. Also, Z.U.E.’s involvement on the 911 calls and firearms was so attenuated that it was virtually irrelevant. Well done, WA Supremes!

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. E.J.J.: Exercising Freedom of Speech is NOT Obstructing.

Bellingham Defense Attorney, Constitutional Rights, Dismissal, Due Process, Jury Trial, Juvenile, law enforcement, misdemeanor, Obstructing, police, Probable Cause, Search and Seizure, Washington Court of Appeals, Washington Supreme Court, Whatcom County Criminal Defense, , ,

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Excellent opinion.

In State v. E.J.J., the Washington Supreme Court  held that a juvenile offender, who called the officers abusive names, yelled, and used profanity toward the officers while the officers were engaged in a criminal investigation, CANNOT be convicted of Obstructing a Law Enforcement Officer. The words the juvenile directed at the officers are protected by the First Amendment. The obstruction statute is also not violated by a citizen’s presence at a scene, provided the citizen does not physically interfere with police. 

Here, juvenile defendant E.J.J. was charged with Obstructing a Law Enforcement Officer under RCW 9A.76.020(1). Under this law, a person is guilty of obstructing a law enforcement officer if the person willfully hinders, delays, or obstructs any law enforcement officer in the discharge of his or her official powers or duties. Obstructing is a gross misdemeanor punishable up to 1 year in jail and a $5,000.00 fine.

This case began as a call for police assistance to E.J.J. ‘s house to help with his intoxicated, out-of-control sister, R.J. (a juvenile at the time). The police responded and began their intervention by escorting R.J. out of the house 10 to 15 feet away from the front door, where the officers attempted to calm her down. E.J.J. grew concerned when he saw an officer reach for what he perceived to be a nightstick. E.J.J. exited the house and stood on the porch, telling the officers that R.J. was his sister and that they should not use the nightstick. The officers advised him that they were in the middle of their investigation and instructed him multiple times to leave the scene and return to the house.

Initially, E.J.J. did not comply, questioning why he had to return to the house. When, eventually, he did return to his home, he stood in the open doorway and continued his verbal interaction with the officers. The house had double doors: a wrought iron screen door, through which someone could see out and communicate through, and a second, solid wood door.

The officers directed E.J.J. multiple times to close the solid wood door and to withdraw further into the home, but E.J.J. refused, stating that he wanted to supervise the scene from the doorway ( 10 to 15 feet away from the other officers and R.J.) to make sure that R.J. was not harmed. E.J.J. continued to stand behind the closed wrought iron door. Multiple times, an officer reached into the home to close the solid door. E.J.J. would immediately reopen it. At this point, E.J.J. was irate, yelling profanities and calling the officers abusive names. An officer warned E.J.J. that he could be arrested for obstruction. After E.J.J. continued to reopen the solid door, an officer put him under arrest for obstruction of a law enforcement officer. The entire interaction lasted approximately 10 to 15 minutes.

E.J.J. was found guilty at trial. he appealed his conviction to the WA Court of Appeals. Unfortunately, the Court of Appeals upheld E.J.J.’s conviction. The case was again appealed, only this time to the WA Supreme Court.

 The WA Supreme Court reasoned that many court cases have consistently and strongly held that people cannot be held liable when exercising their right to speak. “While E.J.J. ‘s words may have been disrespectful, discourteous, and annoying, they are nonetheless constitutionally protected.”

The Court further reasoned that our cases have consistently required conduct in order to establish obstruction of an officer. “In other words, a conviction for obstruction may not be based solely on an individual’s speech because the speech itself is constitutionally protected. This review is also consistent with the approach established by the United States Supreme Court’s See Street v. New York.”

The WA Supreme Court had many reasons for disagreeing with the WA Court of Appeals. First, the WA Supremes disagreed that E.J .J.’ s physical approach toward the officers was sufficient evidence of conduct to support his conviction: “E.J.J. did not physically interfere with or touch either the police or his sister. Furthermore, the trial court’s findings of fact provide that E.J.J. did not make any threatening movements toward the officers at any time.”

Second, the WA Supremes disagreed that E.J.J.’s presence at the scene escalated the situation: “E.J.J. ‘s mere presence at the scene cannot constitute conduct. E.J.J. had every right to stand on his own property, provided he did not physically interfere with police.”

Third, the WA Supremes disagreed that E.J.J.’s refusal to obey the officers’ repeated requests to leave the scene was sufficient evidence of conduct: “This exchange is so intertwined with E.J.J.’s protected speech that we find insufficient evidence of E.J.J. ‘s conduct to support his conviction on this basis.”

Finally, the WA Supremes disagreed there was evidence of obstruction because an officer was eventually required to escort E.J.J. back to the home, thus delaying officers: “Inconvenience cannot, taken alone, justify an arrest for obstruction.” The Court concluded with the following:

“Where individuals exercise their constitutional rights to criticize how the police are handling a situation, they cannot be concerned about risking a criminal conviction for obstruction. Such a conviction is not permitted under the First Amendment. After a comprehensive review of the record and the trial court’s findings, the decision of the trial court is reversed and charges are dismissed.”

My opinion? EXCELLENT decision. I’ve had many, many clients charged with Obstructing simply because they voiced a heated opinion with law enforcement officers during an investigation. Although it’s never okay to be disrespectful toward law enforcement, obstructing requires conduct – plain and simple. I’m pleased our Washington Supreme Court made the right 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. Barry: Defendant’s In-Court Demeanor Leads to Conviction

Bellingham Defense Attorney, Constitutional Rights, Due Process, Evidence, felony, Jury Trial, Self-Incrimination, Sex Crimes, Washington Supreme Court, Whatcom County Criminal Defense, , ,

Defendant collapses in court after guilty verdict - YouTube

In State v. Barry, the WA Supreme Court held that a lower trial court properly answered a jury’s question regarding whether it may consider observations of the defendant’s actions and demeanor during the court case as “evidence” by stating, “Evidence includes what you witness in the courtroom.”

Here, defendant Robert Barry went to jury trial facing two counts of Child Molestation in the First Degree. He did not testify. After the parties rested their cases, the jury deliberated. During deliberations, the jury asked the court whether it may consider “observations of the defendant’s actions-demeanor during the court case” as “evidence.” In response, the trial court instructed the jury that “evidence includes what you witness in the courtroom.” The court record, however, contained no references whatsoever to Barry’s in-court demeanor.

The jury convicted Barry of both counts of child molestation. He appealed, claiming that the trial court’s instruction in response to a jury question violated his Fifth Amendment and Sixth Amendment rights under the United States Constitution.

The WA Supreme Court reasoned that the Fifth Amendment does not extend to the jury’s generic reference to “actions-demeanor,” and the Sixth Amendment does not transform all evidentiary errors into errors of constitutional magnitude. Consequently, no constitutional error occurred.

Additionally, the Court said that the “silence” on Barry’s demeanor makes it impossible to determine that Barry was prejudiced. Thus, neither party can “prove” one way or another whether the error was prejudicial. The court also emphasized the following:

“The trial court instructed the jury that ‘the fact that the defendant has not testified cannot be used to infer guilt or prejudice against him in any way,’ and that its instructions are to be taken as a whole. A jury is presumed to follow the court’s instructions, and the record presents no indication that the jury failed to heed the court’s instruction regarding the defendant’s failure to testify in this case.”

 With that, the WA Supreme Court upheld the trial court and found Mr. Barry guilty.

My opinion? I agree with Justice Johnson’s dissent. Although there’s no record of Barry’s demeanor during trial, we do know that before trial began, the court advised Barry that he should refrain from any display of emotion. It advised that everyone in the courtroom remain stone-faced throughout the trial and that no one should show any reaction to the children’s testimony. The court explained to Barry that such a showing of emotion could ”backfire” on his case.

Justice Johnson reasoned that assuming Barry complied with that instruction, his observable lack of remorse throughout trial likely prompted the question from the jury.

“By then instructing that the jury could consider Barry’s demeanor throughout trial as evidence of his guilt, the court put him in the constitutionally intolerable position of either waiving his constitutional right to refuse to testify, so that he could explain his remorseless attitude throughout trial or leave the jurors to formulate their own inferences about his behavior.”

I agree. The defendant was placed between a rock and a hard place. His unenviable posititon probably may have affected the quality of his defense. Unfortunately, we don’t know because the court record says nothing about his demeanor. More than anything, it’s THIS – the lack of court record regarding the defendant’s demeanor – which is so disturbing. Justice Johnson articulated this same belief:

After the defense has rested its case, and after closing arguments, the trial court cannot instruct that those observations may be treated as “evidence” bearing on the determination of guilt or innocence when the defendant has had no opportunity to challenge or explain that evidence. This is akin to allowing a prosecutor to argue evidence not presented at trial or allowing a witness to testify privately without cross-examination, to the jury during its deliberations. It deprives the defendant his right to confront the evidence, and at the very least, it deprives Barry an opportunity to challenge the propriety of the use of this “evidence” in the determination of guilt.

Exactly. At best, this is a murky opinion. At worst, it violates the defendant’s rights at 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.