Category Archives: Whatcom County Criminal Defense

Defendants Can’t Be Forced to Appear in Court from Jail Cells

Bellingham Defense Attorney, Jail, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , , ,

US reporter Evan Gershkovich appears in Russian court to appeal detention | The Times of Israel

Photo courtesy of NATALIA KOLESNIKOVA / AFP)

In State v. Luthi, the WA Supreme Court held that defendants who appear in an in-courtroom holding cells at jails are essentially shackled, and as such, they may not be placed in holding cells without a specific inquiry into why that’s necessary.

FACTUAL BACKGROUND

In order to fully appreciate the particular restraint at issue in this case, we must first describe the in-court holding cell at the Cowlitz County Jail courtroom used for Ms. Luthi’s hearing.

The Cowlitz County Superior Court often employs a courtroom in the Cowlitz County Jail for short criminal proceedings without witnesses. When the defendant appears for such a hearing, they enter the in-court holding cell directly from a “secured area of the jail.” The holding cell appears to be located at the back or side of the Cowlitz County Jail courtroom, away from the table where counsel sits.

The interior of the holding cell is roughly five feet wide, five feet deep, and eight feet long, with a “mesh window” on the right to allow defendants to speak with their attorneys, and a glass window on the left. Id. (internal quotation marks omitted). Viewed from the courtroom, the in-court holding cell looks like this:

Defendants can't be forced to appear in court from jail cells, WA Supreme Court rules | The Seattle Times

In 2021, Luthi pleaded guilty to Drug Offense. She was given a mental health sentencing alternative (MHSA) of 36 months’ parole. Following two parole violation notices in 2022, the State petitioned to revoke the MHSA. Luthi was taken into custody at the Cowlitz County Jail on December 20, 2022. She was held without bail until her MHSA revocation hearing in February 2023.

Luthi’s defense counsel was already very familiar with the in-court holding cell, which counsel refers to as “a cage on the side of the  courtroom.” According to defense counsel, the incourt holding cell was a dehumanizing restraint comparable to shackling. As a form of restraint, shackling cannot be imposed unless a judge finds it necessary. Through counsel, Luthi filed a motion before her MHSA revocation hearing to appear in court without restraints. Counsel argued there was no reason to place Ms. Luthi inside of a cage and for her to be physically separated from the court proceedings. She was not a flight risk, and she was not going to harm herself or others.

The judge denied Luthi’s hearing to be released from the holding cell during court hearings. After her hearing, Luthi wrote an e-mail to defense counsel. She explained how difficult it was to participate from the in-court holding cell. Among other things,  it was “almost impossible to speak” to her attorney. Luthi also described feeling as though she was “on display” in the holding cell and “not a part of her own court hearing.”

COURT’S RATIONALE & CONCLUSIONS

Justice Yu wrote the court’s opinion. She held the superior court failed to conduct a  individualized inquiry before requiring Luthi to appear in an in-court holding cell. Consequently, Justice Yu reasoned that in-court holding cell violated Luthi’s due process right to appear at all courtroom proceedings without unjustified restraints:

“Requiring defendants to attend court hearings while in a holding cell undermines the presumption of innocence, interferes with a defendant’s ability to communicate with counsel, and violates the dignity of the defendant and the judicial proceedings.” ~WA Supreme Court Justice Mary Yu

Moreover, Justice Yu reasoned the physical separation between the defendant and everyone else in the courtroom created undue biases and assumptions from others:

“Applying reason, principle, and common human experience, we must conclude that this constant reminder of the accused’s condition could invite any decision-maker to draw negative, prejudicial inferences, even at a subconscious level.” ~WA Supreme Court Justice Mary Yu

Finally, Justice Yu reasoned the in-court holding cell is contrary to the courtroom’s formal dignity, which includes the respectful treatment of defendants:

“In the United States, defendants traditionally sit next to their counsel at counsel table, and courtrooms have historically been built without docks or incourt holding cells . . . Compelling a defendant to appear from an in-court holding cell without justification creates the perception that the rest of the courtroom is really a theater . . . making the defendant an exhibit or spectacle in the trial.” ~WA Supreme Court Justice Mary Yu

With that, Justice Yu and the majority court reversed and remanded Ms. Luthi’s MHSA revocation to the superior court for a new hearing.

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.

Why Americans Think Crime Is Increasing

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What the public thinks – and data shows – about violent crime in U.S. | Pew Research Center

In Vox, Journalist Abdallah Fayyad offers theories on why politicians from both parties have sounded the alarm about rising crime.

THE TRUTH

In truth, the pandemic-era spike in crime actually seems to have subsided. The first three months of 2024 showed a historic decline in crime rates compared with the same period last year, according to the latest data from the FBI. Murder, for example, is down 26 percent, and robberies dropped 18 percent. Crime rates now look more like they did pre-Covid, steadily declining as they had been since the 1990s.

And yet, the majority of Americans still believe that crime is only getting worse. A 2023 Gallup poll showed that 77 percent of Americans believed that crime was increasing across the country. That might help explain why lawmakers have been overreacting to the short-lived rise. Many take a tough-on-crime approach to public safety. Their measures include imposing harsher penalties and increasing police surveillance.

So what could be driving the big, consistent gap between public perception and reality? Here are three theories:

1. FEARMONGERING CAUSED BY POLITICIANS

For decades, American politicians — and especially Republicans — have run political campaigns that put crime front and center, even when crime rates are on the decline. This style of campaigning dates back to the 1960s, when Arizona Sen. Barry Goldwater launched a “law-and-order” presidential campaign against Lyndon Johnson and used crime as a way to implicitly talk about race.

Republican presidents like Richard Nixon, George H. W. Bush, and Donald Trump all focused on urban crime as a way to stir up white suburban voters in particular. National media — especially opinion and commentary publications — also took the theory and ran with it. According to the Marshall Project, the country’s leading newspapers and magazines used the term “superpredator” nearly 300 times between 1995 and 2000, when crime had started to decline. The majority of times, the term was used uncritically.

“It’s a vicious cycle . . . There’s a latent concern about crime — it always sits there as a second-tier issue for voters. And if you play upon that as a politician, and you campaign and you really spark fear around the issue, you watch it grow as a top voting issue. That’s absolutely what happens.” ~Insha Rahman, vice president of advocacy and partnerships at the Vera Institute of Justice.

2. MEDIA COVERAGE OF CRIME DISTORTS REALITY

Media outlets dedicate entire sections to coverage of crime, making it a significant part of Americans’ news digest. Its constant coverage makes people feel like it’s a problem that never subsides. Today, there’s also the added layer of social media.

3. WHEN CRIME IS SENSATIONALIZED, AMERICANS CAN’T LOOK AWAY.

According to journalist Abdallah Fayyad, when crimes that might be relatively rare are given outsized weight in the media, people start to believe that they’re more common than they actually are. It also leads to a vicious feedback loop. Tough-on-crime politicians repeatedly talk about a case, media outlets cover it, and people become extremely interested in it. This encourages politicians to continue exploiting the case and more media coverage.

Take the case of Laken Riley, a 22-year-old nursing student who was killed earlier this year. The story played into Republicans’ narrative about immigration — Trump started his 2016 campaign talking about how people crossing the southern borders were criminals and rapists — because the alleged killer had entered the United States illegally. The case became so prominently featured in Republican campaigns that President Joe Biden mentioned it in his State of the Union address, after Republican Rep. Marjorie Taylor Greene confronted him about it.

Studies show, however, that immigrants aren’t more likely to commit crimes than native-born citizens. In fact, some studies show that immigrants might be less likely to commit crimes than people born in the US. But when one horrific incident like Laken Riley’s is sensationalized, it can quickly affect public opinion: One poll, for example, showed that the majority of Americans believe that migration is leading to more crime, despite all evidence that points to the contrary.

So while law-and-order campaigns feed off sensationalizing crime, they are often actually about something else: stirring up fear of a changing society.

CRIME WILL KEEP GETTING DISCUSSED AS A 2024 CAMPAIGN ISSUE

According to journalist Abdallah Fayyad, Trump has spent a lot of time talking about crime. despite falling crime rates, and he’s likely to bring it up during his debates with Biden. Regardless of where crime rates actually stand, the fact that so many people believe that crime is not only a serious problem but one that’s actively getting worse has resulted in Republicans and Democrats trying to prove their tough-on-crime bona fides. Even officials in the Biden administration, for example, have told progressives that they went “too far” on criminal justice reforms and that they should look for a more “sensible approach.”

But whatever candidates will say about combating crime, one thing is clear: Crime isn’t actually getting worse – even if the majority of Americans think it is.

Excellent reporting by journalist Abdallah Fayyad. 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.

U.S. Supreme Court Upholds Domestic Violence Gun Ban

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Supreme Court upholds federal gun ban for those under domestic violence restraining orders | Fox News

In United States v. Rahimi, the U.S. Supreme Court handed down its most significant gun control ruling in two years. It upheld a federal law that bars people who are the subject of domestic violence restraining orders from owning weapons.

With conservatives and liberals joining the 8-1 majority, the decision was a major win for gun safety groups and victims of domestic violence. It limited a controversial standard the high court’s conservatives had set down in 2022 that required gun prohibitions to have a connection to history to survive constitutional scrutiny.

The case centered on a 1994 law that bars people who are the subject of domestic violence restraining orders from possessing guns. A Texas man, Zackey Rahimi, was convicted for violating that law following a series of shootings.

SUPREME COURT’S PRECEDENT ON GUN CONTROL 

Two years ago, in New York State Rifle & Pistol Association v. Bruen, the Supreme Court said that to survive a challenge, gun laws must have some connection to the nation’s history and tradition.

In Bruen, Justice Thomas wrote on behalf of the Supreme Court’s majority as the court charted a new approach to the Second Amendment. The sweeping “history and tradition test” Thomas put forth in that opinion declared that modern gun-control laws are invalid unless similar restrictions existed in early American history.

Unfortunately, Justice Thomas’s opinion in Bruen sent lower federal courts dumbfounded on whether modern gun laws had some connection to the 18th Century.

RAHIMI ADDRESSES THE CONFUSING PRECEDENT CREATED BY BRUEN.

Chief Justice John Roberts, who wrote Rahimi’s majority opinion, sought to minimize the Court’s disagreements with Justice Thomas, who was the lone dissenter (and wrote Bruen, remember). However, not all the justices were so restrained, with two calling Thomas’ approach “useless.”

Justice Amy Coney Barrett, a conservative who has been raising concerns about the Supreme Court’s approach on history in recent cases, penned a brief concurrence criticizing how some lower courts were looking for near-identical historical gun laws when examining modern regulations.

“Imposing a test that demands overly specific analogues has serious problems. It forces 21st-century regulations to follow late-18th-century policy choices, giving us ‘a law trapped in amber.’” ~Justice Barrett

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

U.S. Supreme Court to Decide Influential Criminal Cases

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In Death Penalty Cases, a Texas Court Tests the Supreme Court's Patience - The New York Times

The Associated Press reports the Supreme Court is headed into its final few weeks with nearly half of the cases heard this year still undecided. Some of the criminal cases are quite influential, including ones that could reshape the law on Obstructing, Firearms Offenses and Domestic Violence cases.

Here’s a look at some of the major undecided cases:

Jan. 6, 2021 Riots

A former Pennsylvania police officer is challenging the validity of obstruction charges brought against hundreds of people who took part in the violent assault on the Capitol on Jan. 6, 2021. Former President Donald Trump faces the same charge of obstructing an official proceeding.

The legal issue is whether a law meant to discourage tampering with documents sought in investigations can be used against the Capitol rioters.

The federal charge of Obstruction of an Official Proceeding carries up to 20 years behind bars. It is among the most widely used felony charges in the Jan. 6 cases. It has been brought against extremists accused of plotting to stop the transfer of presidential power from Republican Donald Trump to Democrat Joe Biden as well as in dozens of less serious cases.

Guns & Domestic Violence

The justices are weighing whether to uphold a federal law that seeks to protect Domestic Violence victims by keeping guns away from the people alleged to have abused them.

The case, United States v. Rahimi, made its way up to the Supreme Court after the Biden administration asked the justices to review a decision earlier this year by the U.S. Court of Appeals for the 5th Circuit that struck down a federal law that bars people under domestic violence orders from having firearms.

An appeals court struck down a law that prohibits people under domestic violence restraining orders from possessing firearms. That court found that the law violated the 2nd Amendment right to “keep and bear arms” following the Supreme Court’s 2022 ruling that expanded gun rights and changed how courts are supposed to evaluate gun restrictions.

Homelessness

The most significant Supreme Court case in decades on homelessness centers on whether people can be banned from sleeping outdoors when shelter space is lacking.

A San Francisco-based appeals court decision said that amounts to cruel and unusual punishment. Leaders from California and across the West say that the ruling makes it harder for them to regulate homeless encampments encroaching on sidewalks and other public places. Advocates say it would criminalize homelessness just as rising costs have pushed the number of people without a permanent place to live to record levels.

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.

U.S. Supreme Court Declares Unlawful a Federal Ban on “Bump Stock” Devices

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FILE - Shooting instructor Frankie McRae demonstrates the grip on an AR-15 rifle fitted with a "bump stock" at his 37 PSR Gun Club in Bunnlevel, N.C., on Oct. 4, 2017. Gun accessories known as bump stocks hit the market more than a decade ago. The U.S. government initially concluded that the devices that make semi-automatic weapons fire faster didn't violate a federal ban on machine guns. That changed after a gunman with bump stock-equipped rifles killed 60 people and wounded hundreds in Las Vegas in 2017. (AP Photo/Allen G. Breed, File)

AP Photo/Allen G. Breed

In Garland v. Cargill, the U.S. Supreme Court has struck down a Trump-era regulation that effectively banned bump stocks. These aftermarket accessories make semiautomatic rifles fire more like machine guns. The devices were used in the deadliest mass shooting in American history.

A majority of the justices reasoned that the definition of machine gun in federal law does not apply to bump stocks. As a result, the Bureau of Alcohol, Tobacco, Firearms and Explosives exceeded its authority to regulate them, the court ruled.

“A bump stock does not convert a semiautomatic rifle into a machinegun any more than a shooter with a lightning-fast trigger finger does.” ~U.S. Supreme Court Justice Clarence Thomas.

Semiautomatic weapons, which fire one bullet per trigger pull, are legal and don’t need to be registered with the federal government. When a bump stock is employed, it uses a semiautomatic’s natural recoil to quickly re-engage the trigger as long as the shooter maintains pressure. That enables an increased rate of fire — one that can nearly match that of a machine gun.

The court’s liberal justices signed onto a dissent penned by Justice Sonia Sotomayor, which panned the majority’s reasoning:

“This is not a hard case. All of the textual evidence points to the same interpretation. A bump-stock-equipped semiautomatic rifle is a machinegun because (1) with a single pull of the trigger, a shooter can (2) fire continuous shots without any human input beyond maintaining forward pressure.” ~U.S. Supreme Court Justice Sonia Sotomayor.

ARE BUMP STOCKS NOW LEGAL IN WASHINGTON STATE?

No. Garland v. Cargill narrowly applies only to the ATF’s rulemaking authority and interpretation of federal statutes. Therefore, Washington’s ban on bump stocks shall remain in effect. Also, it is still a Class A felony in WA State to possess a bump-stocked firearm in the commission of a felony. Washington State joins 16 other states and the District of Columbia in preserving their bump stock bans.

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

The “Second Look” Movement

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rear view of a silhouette man in window

Photo by Donald Tong on Pexels.com

A recent article in the Sentencing Project reports that numerous states have enacted “second look” judicial review policies to allow judges to review sentences after a person has served a lengthy prison sentence.

Titled, “The Second Look Movement: A Review of the Nation’s Sentence Review Laws,” the report provides a detailed analysis of second look legislation and court decisions in 12 states, the District of Columbia, and the federal government. It also delves into the implications of such laws on youth offenders and emerging adults, along with recommendations for enhancing their application.

“Research has clearly established that lengthy sentences do not have a significant deterrent effect on crime and divert resources from effective public safety programs. Nevertheless, existing parole systems, like executive clemency, are ineffective at curtailing excessive sentences in most states due to their highly discretionary nature, lack of due process and oversight, and lack of objective consideration standards,” ~Kara Gotsch, executive director of The Sentencing Project. 

Research has also established that lengthy sentences do not have a significant deterrent effect on crime and divert resources from effective public safety programs. Nevertheless, existing parole systems are ineffective at curtailing excessive sentences in most states due to their highly discretionary nature, lack of due process and oversight, and lack of objective consideration standards.

As a result, we’ve seen legislators consider and adopt second look legislation as a more effective means to reconsider an incarcerated person’s sentence in order to assess their fitness to reenter society. While much work remains, we’re thrilled to see this momentum across the country.

Key findings from the report highlight the provisions and recommendations necessary to ensure the effectiveness and fairness of second-look legislation. These include expanding eligibility criteria, implementing fully retroactive provisions, granting judicial discretion in sentence reduction, and providing timely and accessible review processes.

Among the states examined, six — Connecticut, Delaware, Maryland, Oregon, Florida, and North Dakota — and the District of Columbia allow courts to reconsider sentences under specified conditions, such as age at the time of the offense and duration of incarceration. Meanwhile, California, Colorado, and New York focus their reviews on specific populations, such as military veterans, habitual offenders, and domestic violence survivors, respectively.

In addition to California, four states – Illinois, Minnesota, Oregon, and Washington – have enacted prosecutor-initiated resentencing laws that allow prosecutors to request the court to reconsider a sentence.

Moreover, the report underscores provisions allowing for compassionate release for federal inmates based on extraordinary and compelling reasons, as well as for the elderly age alone for those incarcerated in the District of Columbia.

My opinion? Second look legislation is imperative to end mass incarceration, accelerate racial justice, and better invest in public safety.

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.

Police Can Pursue Again

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Police car chasing the offender on the road with flashing lights.

Featured image by Aleksandr_Kuzmin/Shutterstock.com.

Starting June 6, police officers in Washington state will have broader reign to chase drivers suspected of a crime. Under the previous iteration of the law, officers were only allowed to pursue a driver under very narrow circumstances. In short, the officer needed “reasonable suspicion” that someone in the car had committed a violent crime, sex crime, domestic violence or a vehicular assault, was attempting to escape custody or was driving under the influence. Now, after Initiative 2113 was passed in March, officers can pursue a car if they have reason to believe someone inside the vehicle violated the law in any way.

2021 PURSUIT LAW WAS CONTROVERSIAL

The initiative reverses changes made by a 2021 law, which limited police pursuits, among other restrictions on the amount of force that officers could use. Critics of the law said that it didn’t give law enforcement enough authority to pursue suspects and protect communities, pointing to rising crime in the state.

According to FBI data, Washington’s violent crime rate rose from 303 offenses per 100,000 people in 2019 (and 294 in a pandemic-affected 2020) to 336 in 2021 and 376 in 2022. Proponents of the reform, meanwhile, cited evidence that high-speed chases endanger the public and claim they should only be conducted when absolutely necessary.

According to the San Francisco Chronicle, over 3,000 people died nationwide in police chases between 2017 and 2022, including over 500 bystanders. More data found that the state saw 11 deaths as a result of police pursuits in the 15 months before the reforms took effect, and two deaths in the 15 months following the reforms.

WHAT ELSE DOES INITIATIVE 2113 CHANGE?

In addition to broadening the number of crimes that police are allowed to pursue a vehicle for, I-2113 lowers the standard needed to set off a pursuit. Before, a suspect needed to pose a “serious risk of harm to others” in order for police to start a pursuit. Now, they need to deem the suspect “a threat to the safety of others” in order to justify a chase.

The offense of Eluding is basically a driver intentionally disobeying a law enforcement officer’s command to stop. Some examples of “evading” include:

  • immediately speeding away from the officer
  • stopping but then driving off
  • driving several miles before pulling over
  • increasing the speed of the vehicle, or
  • extinguishing the vehicle lights.

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

Can Police Access Your Home Security Cameras?

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An illustration of an police badge-shaped eyeball placed on the top of a video doorbell with a blue background.

Photo Credit: Reviewed / Tara Jacoby

Home security systems are an excellent way to protect your loved ones and belongings from unwanted intruders. With a sophisticated security setup, you can ensure a sense of control, vigilance and assurance, allowing you to focus on the moments that truly matter. Privacy is a priority for most homeowners investing in smart home security devices, especially when it comes to worries about hacking or data theft.

Although beneficial, these devices raise other concerns. Can law enforcement legally capture and/or review your home surveillance video footage whenever they want? Would you even know if they did?

REQUESTING CLOUD VIDEO UNDER “EXIGENT CIRCUMSTANCES” EXCEPTION TO  SEARCH WARRANT REQUIREMENT.

First, law enforcement may request cloud video footage in case of an emergency, better known as “Exigent Circumstances.” Here an “emergency” typically means a life-or-death situation or something else high-stakes, such as a kidnapping or a manhunt for a violent criminal.

Most security companies that offer video storage in North America will obey these emergency requests. Here’s an explanation from Google Nest on how it handles sharing user data with law enforcement. It also exlaines how it may try to narrow the scope of the request for user privacy, and how it may or may not let users know about the request. Security users may not know that their cloud videos were accessed by police.

“Before complying with a request, we make sure it follows the law and Nest’s policies,” the company says. “We notify users about legal demands, when appropriate, unless prohibited by law or court order. And if we think a request is overly broad, we’ll seek to narrow it.” ~Google Nest

In these situations, law enforcement contacts the cloud video management organization directly (usually your security brand like Arlo or Ring), and requests specific video footage from an area through channels set up to allow for such requests.

SEEKING A WARRANT FOR HOME SECURITY DEVICES

Another option police have to seize cam footage is via a warrant or similar court order. Warrants allow police to take home security devices and examine them, including any local storage that you have, so avoiding cloud storage won’t help very much.

Typically, warrants are granted only when police can provide some evidence that a crime may have been committed on the property. It depends on the court and judge where the warrant is requested, but granting warrants is common. The warrant then becomes active and has a specific scope for where and what it applies to (which is why you should always ask to view a warrant if law enforcement wants your security cameras).

Warrants raise a further important question: Will you get your home cam back if it’s seized during a legal search? That’s a subject of some deliberation, although it’s generally agreed from cases like these that the Fourth Amendment prevents law enforcement from holding onto digital devices or data indefinitely. Getting your camera back during a real-world seizure may not be so cut and dried.

REGISTERING SURVEILLANCE EQUIPMENT WITH LAW ENFORCEMENT AGENCIES

There’s an interesting third option for law enforcement that’s been growing in popularity, especially in certain cities and states where police departments are looking to tap into smart home tech. Home security owners can register their cameras and similar devices with local police departments, letting them know there is a device at a specific property that’s recording. We’re seeing programs like this everywhere from Buffalo, New York’s SafeCam to the Bay Area in California.

These programs vary, but there are several important points. First, this isn’t the same thing as registering an alarm system via a local permit, it’s specifically for video recording devices. Second, registering does not mean police can look through your cams or view any recorded footage. They know where registered residential cameras are, so they can request footage directly from participants with cameras near a crime, etc.

Finally, if you do grant permission to police to access a registered camera, they’ll be able to view and copy video images, which can be used as evidence in a criminal proceeding. Often, registration programs have requirements like banning you from sharing video with the media and other fine print. Keep in mind, police may still be able to seek a warrant to take cams and video footage if you deny a request via a registration program.

POSTING HOME SECURITY FOOTAGE ONLINE

A number of security brands offer ways to post videos online through things like the Ring Neighbors app, dedicated forums, social media groups and so on. If you post a video in a public space like this, even if you’re only asking for advice, then it’s fair game for law enforcement to use as well. Just this year, however, Ring decided to end its more liberal sharing program with police, limiting them to the life-or-death requests discussed above.

Please review my Search & Seizure Legal Guide and contact my office if you, a friend or family member are charged with a crime involving home security footage. Hiring an effective and competent defense attorney is the first and best step toward justice.

Travelers Who Are More Likely To Get Stopped By TSA

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'Safe-list' travelers get fast track through airport security | CNN Business

Excellent article from journalist Erika Mailman gives advice on how not to draw a TSA agent’s attention when travelling by airplane.

AGGRESSIVE BEHAVIOR

The first thing that raises a red flag is aggressive behavior. Even if you’re justifiably upset about a canceled or delayed flight, you need to keep your cool and remain courteous. Tamp down that anger, or you might get a little more attention than you bargained for.

OVERLY FRIENDLY

On the other side of the coin, overly friendly passengers draw the TSA agent’s eye. No need to make small talk—this person is not your friend. And if you’re too chatty with the agent, you may appear to be trying to disarm them. It’s best to just be polite and neutral.

NERVOUS

Another sign that the agent looks for? People who act nervous. You might be a nervous flyer or filled with anxiety about other aspects of your trip. So, while you’re going through the checkpoint, try to avoid the indications of being aflutter: clearing your throat a lot, being pale or shaky, or being wide-eyed. How can you quell those signs? Try to meditate or visualize a pleasant space in your life that makes you feel calm.

AVOIDING EYE CONTACT

Avoiding eye contact is another telltale sign. Don’t be shifty-eyed; look at the agent directly when he or she is talking to you.

BAGGY CLOTHING

Believe it or not, baggy clothing can make an agent take a second look, because they may wonder if something is being concealed under those folds of fabric. That could inspire them to request a pat-down. Your clothes can also be a red flag if they are out of season. No, we don’t mean that you’re wearing last season’s runway; we mean that you’re wearing a parka in summertime. It could make the agent think a weapon’s hidden under all that goose down.

INTOXICATION

Another thing that makes you appear suspicious is being drunk (and, relatedly, unruly). The time you spend cocktailing in the airport bar may actually cause an agent to request a blood alcohol test…and if you don’t pass, you could be denied boarding. And even if you aren’t found to be tipsy or loaded, you might have drawn unwanted attention from TSA.

CARRYING LOTS OF CASH

If you are carrying a lot of cash, especially if it’s in different denominations, you could be seen as a potential trafficker. It’s best to convert your money back to American dollars before heading to the airport.

MISCELLANEOUS

The list of suspicious behaviors and appearances continues. They include transporting electronic and electrical items such as curling irons, having an intricate hairdo with pins and clips, bringing battery packs (those go in carry-on luggage only and can’t be in checked bags), trying to get by with larger liquid containers than the allowed 3.4 ounces, and talking about bombs and guns while in line. It may surprise you to know that you can be arrested for joking about bombs while in the TSA line. The best advice is to be chill, don’t talk other than when directly addressed, and follow all the rules to a tee.

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

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

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

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

Image from Shutterstock.

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

BACKGROUND FACTS

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

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

COURT’S ANALYSIS & CONCLUSIONS

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

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

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

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

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

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

With that, the COA upheld his convictions.

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