Tag Archives: Mount Vernon Criminal Defense Attorney

“Am I Free To Leave?”

Bellingham Defense Attorney, Driving While License Suspended/Revoked, Firearm, Fourth Amendment, Jury Trial, law enforcement, Mount Vernon Criminal Defense Attorney, police, Reasonable Suspicion, Search and Seizure, Skagit County Criminal Defense, Terry Stop, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

RAW VIDEO: Camaro vs Police Cars After Game Stop Robbery in Houston - YouTube

In State v. Johnson, the WA Court of Appeals held that a “seizure” of a person occurs when an officer’s words and action would have conveyed to an innocent person that his or movements are being restricted. Officers need not create a complete obstruction of an individual’s movements in order for the encounter to become a seizure.

BACKGROUND FACTS

Officer Yates and Officer George of the Lynnwood Police Department were engaged in a proactive patrol late at night in an area known to have a high rate of criminal activity. The officers observed a silver vehicle enter a motel parking lot and park in a stall. After the vehicle came to rest, about a minute and a half passed without any person entering or leaving the vehicle. The officers became suspicious that its occupants were using drugs.

The officers, both of whom were armed and in uniform, approached the vehicle on foot and stood on opposite sides adjacent to the driver’s and passenger’s doors. They shined flashlights into the vehicle’s interior to enable them to see the vehicle’s occupants and ensure that neither was holding anything that could put the officers in danger. Because the vehicle was also flanked on both sides by cars parked in adjoining stalls, the officers had minimal space to move.

Officer Yates did not see any drugs or drug paraphernalia when he shined his flashlight inside the passenger compartment. Inside were the defendant Mr. Johnson and a female passenger.

Officer Yates stood on the passenger side while Officer George stood adjacent to the driver’s door. Yates sought to start a conversation with Johnson, who was in the driver’s seat, and did so by asking, “Hey, is this Taylor’s vehicle?” In fact, there was no “Taylor”; the ruse was intended to make Johnson feel more comfortable, in the hope that he would talk with the officer. Johnson appeared confused by the question, and Yates asked, again, whether the vehicle was “Taylor Smith’s vehicle.” In response, Johnson stated that the vehicle was his own and that he had recently purchased it.

Meanwhile, Officer George, who was leaning over the driver’s side door, noticed a handgun placed between the driver’s seat and the door.

George alerted Yates to the presence of the firearm, drew his own handgun, opened the driver’s door and removed the weapon from Johnson’s vehicle. Subsequently, Johnson was removed from the vehicle. Meanwhile, police dispatch informed the officers that Johnson’s driver’s license was suspended in the third degree, and that he had an outstanding arrest warrant and a felony conviction. The officers then informed Johnson that he was being detained but not placed under arrest and advised him of his Miranda rights.

Eventually, Johnson was charged with unlawful possession of a firearm in
the first degree.

Before trial, Johnson moved to suppress the evidence of the gun found in his possession, contending that it was found attendant to his unlawful seizure. After an evidentiary hearing, the trial court granted Johnson’s motion. However, the judge did not make a determination as to whether Johnson was seized prior to the discovery and removal of the firearm, instead ruling that the encounter was a “social contact” and that “law enforcement had an insufficient basis to initiate a social contact.” The trial court further acknowledged that granting the motion to suppress essentially terminated the State’s case. The State appeals from the order granting Johnson’s motion.

COURT’S ANALYSIS & CONCLUSIONS

“In a constitutional sense, the term “social contact” is meaningless. The term has been adopted by lawyers and judges to describe circumstances that do
not amount to a seizure.”

The Court of Appeals further reasoned that term has been adopted by lawyers and judges to describe circumstances that do not amount to a seizure. It explained, for example, that a social contact is said to rest someplace between an officer’s saying ‘hello’ to a stranger on the street and, at the other end of the spectrum, an investigative detention (i.e., Terry stop).

“Fortunately, seizure jurisprudence is well-developed,” said the Court. It said the WA Constitution does not forbid social contacts between police and citizens. A police officer’s conduct in engaging a defendant in conversation in a public place and asking for
identification does not, alone, raise the encounter to an investigative detention. Not
every encounter between a police officer and a citizen is an intrusion requiring an
objective justification. Thus, the police are permitted to engage persons in conversation and ask for identification even in the absence of an articulable suspicion of wrongdoing.

“However, officers need not create a complete obstruction of an individual’s movements in order for the encounter to become a seizure. The test is whether a reasonable person faced with similar circumstances would feel free to leave or otherwise terminate the encounter.”

The Court of Appeals held the search and seizure unlawful. In the instant case, the defendant was seized when officers asked for proof of his identity under a totality of the circumstances analysis as (1) the defendant was seated in a parked car that was flanked by cars parked in each of the adjoining spaces when the two uniformed officers stood adjacent to the vehicle’s doors, such that neither the defendant nor his passenger would have been able to open the doors and walk away from the vehicle without the officers moving or giving way; (2) the defendant could not move his vehicle in reverse without risking his car making contact with one or both of the officers and a barrier prevented the vehicle from pulling forward, (3) the officers illuminated the interior of the vehicle with flashlights, and (4) the officers used a ruse to begin the contact, asking “Is this Taylor’s car?” (5) when the officers approached the vehicle and initiated a conversation with Johnson, they saw him seated with a female passenger and neither officer observed any signs of drug use, (6) Johnson was cooperative with Officer Yates and answered his questions, and (7) beyond the aforementioned hunch, the officers were aware of nothing that constituted a reasonable, articulable suspicion of potential criminal activity.

With that, the Court of Appeals held that the trial court did not err in granting
Johnson’s motion to suppress evidence of the subsequently discovered firearm.

My opinion? Good decision. Please read my Legal Guide titled Search and Seizure and contact my office if you a friend or family member are arrested for a crime and believe a questionable search or seizure happened. Hiring an experienced defense attorney is the first and best step toward justice.

Suppress Evidence or Dismiss the Case?

Bellingham Defense Attorney, Constitutional Rights, Fourth Amendment, Mount Vernon Criminal Defense Attorney, Search and Seizure, Sex Crimes, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Image result for suppress evidence

In State v. McKee, the WA Supreme Court held that when an appellate court vacates a conviction that is obtained with illegally seized evidence, the remedy is remand to the trial court with an order to suppress evidence and not out-rightly dismiss the case in its entirety.

BACKGROUND FACTS

A jury convicted Mr. McKee of four counts of possessing Depictions of Minors Engaged in Sexually Explicit Conduct. The Court of Appeals reversed those convictions on the ground that police had used an overbroad search warrant to obtain the underlying cell phone photos and videos.

The Court of Appeals reversed the conviction. Although the Court of Appeals provided no reasoning to justify that remedy, it appears to have thought dismissal was warranted because once the cell phone evidence was suppressed, there would be insufficient evidence to sustain the convictions at a second trial.

The State appealed on arguments that the Court of Appeals mistakenly reversed the conviction. It argued that dismissal was inappropriate because that testimony—i.e., the evidence that was not tainted by the invalid search warrant— would be sufficient to sustain the Possessing Depictions convictions on retrial.

LEGAL ISSUE

Whether the Court of Appeals erred when it dismissed the convictions after suppressing the cell phone evidence, thus barring any possibility of a retrial.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court held that the typical remedy for a Fourth Amendment violation is suppression, not dismissal. Furthermore, the remedy of dismissal typically applies only when a conviction is reversed for insufficient evidence or the government’s misconduct has prejudiced the defendant and materially affected the possibility of a fair trial.

“The logic underlying this rule is that a reversal for insufficiency is tantamount to an acquittal, but a reversal for any other trial court error is not,” reasoned the WA Supreme Court. “A reversal for insufficiency indicates the government had its chance and failed to prove its case, while a reversal for another trial error indicates only that the defendant was convicted through a flawed process.”

This rule applies whenever the erroneous admission of evidence requires reversal, including when error stems from an illegal search or seizure.

“Thus, in a case like this one, an appellate court does not evaluate the sufficiency of the untainted evidence remaining after suppression. Provided the total evidence (tainted and untainted) was sufficient to sustain the verdict, the remedy is limited to reversal and suppression.”

With that, the WA Supreme Court reversed the Court of Appeals and remanded to the trial court for further proceedings consistent with the order to suppress evidence seized as a result of the faulty warrant.

Please read my Search and Seizure Legal Guide and contact my office if you, a friend or family member face criminal charges involving a questionable search and seizure. Briefing and arguing a well-supported 3.6 Motion to Suppress Evidence could ultimately result in the charges getting dismissed.

Neuroscience Defense

Bellingham Defense Attorney, Diminished Capacity, DNA, Evidence, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Studies, Whatcom County Criminal Defense, , , , ,
Illustration of man holding knife while being controlled by DNA puppet strings.
Incredibly interesting article by reporter Jon Schuppe of NBC News discusses how more criminal defendants are turning to brain science to argue that they shouldn’t face harsh punishment.

Mr. Schuppe’s story focused on the criminal defense of a man named Anthony Blas Yepez who was convicted of second degree murder and also suffered from a rare genetic abnormality linked to sudden violent outbursts. Here, Yepez discovered that a genetic deficiency — a variant of a gene named MAO-A, which regulates aggressive behavior in men — along with abuse he had suffered as a child were partly to blame for his crime. As of now, the New Mexico Supreme Court is considering whether Mr Yepez’ appeal on the issue of whether he was in control of himself when he committed the crime.

The court’s decision — still months away — could accelerate a trend in the criminal justice system: the use of behavioral genetics and other neuroscience research, including the analysis of tumors and chemical imbalances, to explain why criminals break the law. The rapidly developing field is forcing officials to confront new questions about how changes in the brain influence behavior — leading some to rethink notions about guilt and punishment.

According to Schuppe’s article, this cutting-edge evidence, collected through brain scans, psychological exams and genetic sequencing, has been deployed in a range of ways: to challenge whether a defendant was capable of premeditated murder, whether a defendant was competent to stand trial, whether a defendant should be put to death. Most of those attempts to use neuroscience as a defense have failed, researchers say. But some — about 20 percent, according to one study — have worked, winning defendants new hearings or reversals of convictions.

Mr. Yepez’s genetic mutation was first documented in 1993 in members of a Dutch family with a severe version that has since been found in a handful of families worldwide. There are less extreme, and less rare, versions that have been linked to an increased risk of criminal convictions — but only among men who also suffered from abuse as children. Some researchers began dubbing MAO-A the “warrior gene,” a term that was picked up by documentary filmmakers, talk show hosts and consumer-DNA testing companies.

Mr. Yepez’s defense attorney Ian Loyd went online and found a commercial genetic testing company, FamilyTreeDNA, that charges $99 to determine if someone has the MAO-A deficiency. He had one of his investigators visit Yepez at the Santa Fe County jail, where he swabbed Yepez’s cheek for cells. A few weeks later, the results came back positive.

At trial, attorney Loyd tried admitting the evidence to the jury. Unfortunately, the trial judge suppressed the evidence. Afterward, the jury ─ unaware of Yepez’s genetic mutation ─ convicted him of second-degree murder. The judge sentenced him to 22 years in prison. His lawyers said they hope the state Supreme Court will grant him a new trial, this time using the genetic evidence to help explain the killing.

Helen Bennett, the lawyer representing Yepez before the state Supreme Court, said the case will test how neuroscience is complicating determinations of whether someone intended to commit a crime.

“These genetic markers and the way we’re learning how they operate in the brain makes the determination of intent much more nuanced,” Bennett said.

A GROWING STRATEGY

According to Schuppe’s article, the growth of neuroscience evidence — typically in the form of brain scans and psychological tests — dates back about three decades. It has most often been used to seek leniency for juveniles or against the death penalty for killers. But the strategy has expanded to a wider set of cases.

Behavior is determined by a multitude of forces within the brain, with genes only providing a starting point, researchers say. A person’s experiences or environment play a large role. And it’s difficult to show a direct cause and effect involving a particular condition.

“Year after year, more and more criminal defendants are using neuroscience to bolster their claims of decreased responsibility for their criminal conduct and decreased moral culpability relevant to their sentencing,” said Nita Farahany, a law and philosophy professor at Duke University who wrote in a study published in the January issue of the Annual Review of Criminology.

Many scientists and researchers point out that prosecutors, too, might one day seize on neuroscientific evidence, using it to argue that a defendant is dangerous and should be punished harshly.

My opinion? It’s utterly fascinating how our advancements in science can magnify and cross over into actual defenses in criminal law. Is it nature, nurture or a combination of both which leads people to commit crimes?

Please contact my office if you, a friend or family member are charged with a crime and a brain abnormality may be the cause. I’ve achieved excellent results for clients having diagnosable brain injuries and/or suffered from other medical issues like slow-wave sleep,  which is a sleepwalking disorder associated with violent behavior. These medical ailments, and others like them, can support a Diminished Capacity defense.

Opioid Company Faces Federal Criminal Charges

Bellingham Defense Attorney, Drug Offenses, Federal Crimes & Prosecutions, Mount Vernon Criminal Defense Attorney, Opoids, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Image result for opioid company faces criminal charges

Great article from NBC by Tom Winter and Elisha Fieldstadt describes how a major opioid drug distribution company, its former chief executive and another top executive have been criminally charged in New York.
Rochester Drug Co-Operative, one of the top 10 largest drug distributors in the United States, was charged with conspiracy to violate narcotics laws, conspiracy to defraud the U.S., and willfully failing to file suspicious order reports. Laurence Doud III, the company’s former chief executive, and William Pietruszewski, the company’s former chief compliance officer, face these charges. Both Doud, 75, and Pietruszewski, 53, face life in prison.
“This prosecution is the first of its kind: Executives of a pharmaceutical distributor and the distributor itself have been charged with drug trafficking, trafficking the same drugs that are fueling the opioid epidemic that is ravaging this country,” U.S. Attorney Geoffrey Berman said. “Our office will do everything in its power to combat this epidemic, from street-level dealers to the executives who illegally distribute drugs from their boardrooms.”
According to the news article, between 2012 and 2016, Rochester Drug Co-Operative is accused of distributing tens of millions of doses of oxycodone, fentanyl and other opioids to pharmacies that its own compliance department found had no legitimate need for them.
The company identified about 8,300 “potentially suspicious ‘orders of interest,’ including thousands of oxycodone orders,” between 2012 and 2016, but only reported four, the U.S. attorney said.
In that time, Rochester Drug Co-Operative’s sales of oxycodone tablets grew almost nine-fold, from 4.7 million to 42.2 million, prosecutors said. Their fentanyl sales grew from approximately 63,000 dosages in 2012 to more than 1.3 million in 2016.
Also during that same time, Doud’s compensation ballooned to $1.5 million a year.
Rochester Drug Co-Operative announced it has entered into a plea agreement in the criminal case and a settlement in the civil case. The company has agreed to admit to the accusations, submit to supervision by an independent monitor, reform its compliance program and pay a $20 million fine.
My opinion? I hope these companies face justice. Every day, more than 130 people in the United States die after overdosing on opioids. The misuse of and addiction to opioids—including prescription pain relievers, heroin, and synthetic opioids such as fentanyl—is a serious national crisis that affects public health as well as social and economic welfare.
Please contact my office if you, a friend or family member are charged with a crime they allegedly committed while under the influence of opioids.  The defense of Diminished Capacity may exist to exonerate them of any crimes.

Books Banned in WA Prisons

Bellingham Defense Attorney, Department of Corrections, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , ,

WA Reverses Prison Book Ban After Failed Defense – Comic Book Legal Defense Fund

Excellent article by reporter of Bookriot.com discusses how the Washington State Department of Corrections adopted a policy which disallows books to be donated to prisons via nonprofit organizations.

“So quietly, in fact, that one of the largest nonprofits that works to get donated materials to prisoners was taken by surprise to discover the change,” reports Ms. Jensen. “They weren’t informed before it was implemented.”

Fortunately, Books to Prisoners, a nonprofit organization located in Seattle, is ready to fight it.

One of the reasons noted for this sudden policy change is the lack of staff in mail rooms to determine whether or not materials sent are appropriate or whether they’re hiding contraband. Likewise, additional funding and resources are not available to the Washington State Library (WSL).

“This highlights exactly why Books to Prisoners and similar nonprofits do the work that they do — these facilities are underfunded and that lack of funding impacts the individuals who use those books to improve themselves and their own literacy,” says Jensen. “These book donations, which are thoroughly inspected by those at the nonprofit for suitability, fill a critical role in helping those incarcerated who otherwise lack access to vital educational tools.”

Books to Prisoners has sent free books to prisoners across the country since 1973. They note in a tweet “Attempted bans pop up sometimes, most recently by Pennsylvania DOC in 2018, always using same vague “safety” justification. In 45 years, our books have never had contraband.” They added, “Given that we’ve sent books without issue since 1973, and currently send to 12,000 unique prisoners across almost every state in the country each year, it would be bewildering if after 46 years of work as an award-winning nonprofit we decided to start transporting contraband.”

According to Jensen, prison libraries are severely underfunded; and there’s a lack of staff as well. And as Books to Prisoners notes, “Furthermore, the reason that we send books directly to the hands of prisoners is that libraries are chronically underfunded and understaffed.” Barring access to literature, which is what this policy does, hinders those who need it most.

Other states, including New York, have tried similar bans and they’ve been rescinded. The ACLU has stepped in in similar attempted book bans in prison as well.  Criminal justice reform includes ensuring that those who are incarcerated have rights to literature and education, so steps like these by the Washington Department of Corrections are but steps backwards. To combat recidivism, literacy is one of the crucial steps forward, and yet, situations like these further hinder rehabilitation and self-development of those who most need it.

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.

Credit Card Value

Access Devices, Bellingham Defense Attorney, Drug Offenses, Identity Theft, Methamphetamine, Mount Vernon Criminal Defense Attorney, Possession of Stolen Motor Vehicle, Possession of Stolen Property, Sixth Amendment, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Image result for cancelled credit card

In State v. Sandoval, the WA Court of Appeals held that an access device (credit card) need not be able to obtain something of value at the time it is found on a defendant. The access device need only be able to obtain something of value at the time it was last in the possession of its lawful owner.

BACKGROUND FACTS

Ms. Sandoval entered into an agreement with a car dealership. The agreement allowed Sandoval to take home and use a vehicle for three days to determine whether she wanted to purchase it. After three days, the dealership lost contact with Sandoval and made unsuccessful attempts to retrieve the vehicle. The dealership reported the vehicle stolen.

Eventually, the police found Sandoval and her husband in the stolen vehicle at the address
listed in the agreement. The police arrested Sandoval for possession of a stolen vehicle and
searched her incident to that arrest. In Sandoval’s purse, the police found a credit card with somebody else’s name on it, Sandoval’s sister’s birth certificate, and a pipe with methamphetamine residue.

The credit card had been stolen in early February. At that time, the card was active and could have been used to buy goods. Shortly thereafter, the card’s owner cancelled the card.

The State charged Sandoval with possession of a stolen vehicle, possession of stolen property in the second degree, identity theft in the second degree, and possession of a controlled substance.

At trial, the court instructed the jury on the elements of possession of stolen property in the second degree. The court told the jury that the State had to prove beyond a reasonable doubt that the stolen property was an access device.

The court defined an access device as, “any card, plate, code, account number, or other means of account access that can be used alone or in conjunction with another access device to obtain money, goods, services, or anything else of value. In the same instruction, the court stated, “The phrase ‘can be used’ refers to the status of the access device when it was last in possession of its lawful owner, regardless of its status at a later time.

The jury convicted Sandoval on all charges except identity theft in the second degree. The
State dismissed that charge.

Sandoval appealed on the argument that an access device must be able to obtain something of value at the time it is found on a defendant, not at the time it was last in the possession of its lawful owner.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that RCW 9A.56.010(1) defines “access device” as any card, plate, code, account number, or other means of account access that can be used alone or in conjunction with another access device to obtain money, goods, services, or anything else of value, or that can be used to initiate a transfer of funds, other than a transfer originated solely by paper instrument.

Here, the Court of Appeals upheld the trial court’s definition containing the phrase “can be
used,” a phrase which is not statutorily defined. It reasoned that under State v. Schloredt, it was irrelevant whether a victim cancelled his or her account prior to a defendant’s arrest in determining whether stolen credit cards were “access devices” under the statute. Similar to the facts in Schloredt, it was irrelevant that the credit cards Ms. Sandoval possessed were cancelled by its lawful owner.

Also, the Court of Appeals rejected Sandoval’s argument that she received ineffective assistance of counsel when her attorney failed to request a jury instruction for unwitting possession as an affirmative defense for her possession of a controlled substance charge.

The Court reasoned that the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington State Constitution guarantee the right to effective assistance of counsel. Furthermore, in an ineffective assistance of counsel claim, prejudice exists if there is a reasonable probability that, except for counsel’s errors, the results of the proceedings would have differed.

Here, the Court reasoned that Sandoval testified that she obtained the credit card and methamphetamine pipe at the same time, and both items were found on Sandoval in the same location. Therefore, if the jury found that the State carried its burden in showing beyond a reasonable doubt that Sandoval knowingly possessed the credit card, then it is doubtful that Sandoval could have carried her burden to show, by a preponderance of the evidence, that she unwittingly possessed the methamphetamine pipe.

“Thus, we conclude that it was not reasonably probable that the jury would have found Sandoval not guilty of possession of a controlled substance if they had been instructed on the unwitting possession defense.”

Therefore, the Court reasoned that Sandoval was not prejudiced by her counsel’s failure to request the instruction. Because Sandoval has not met her burden to prove prejudice, her ineffective assistance of counsel claim fails.

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.

Washington Crime Report Released

Bellingham Defense Attorney, Domestic Violence, Drug Offenses, felony, Homicide & Manslaughter, law enforcement, marijuana, misdemeanor, Mount Vernon Criminal Defense Attorney, Sex Crimes, Skagit County Criminal Defense, Studies, Uncategorized, Violent Crime, Washington State Patrol, Whatcom County Criminal Defense, , , , ,

Crime Report — The Downey Patriot

The Washington Association of Sheriffs and Police Chiefs (WASPC) just released its 2017 Crime in Washington Annual Report.

It was compiled from data submitted to the Washington State Uniform Crime Reporting Program of the WASPC by Washington State law enforcement agencies.

FACTS AT A GLANCE

  • In 2017, Crimes Against Persons showed an increase of 0.4% with 84,145 offenses reported; compared to 2016 offenses reported of 83,771.
  • In 2017, Crimes Against Property showed an decrease of 6.7% with 295,274 offenses reported; compared to 316,361 offenses reported in 2016.
  • In 2017, Crimes Against Society showed an increase of 5.9% with 32,011 offenses reported; compared to 30,230 offenses reported in 2016.
  • Group A offenses were cleared by arrest or exceptional means 25.6% of the time.
  • The crime rate (per 1,000 in population) for Group A offenses was 69.1.
  • The total arrest rate per 1,000 in population was 25.6.
  • Juveniles comprised of 6.9% of the total arrests.
  • Domestic Violence offenses made up 50.4% of all Crimes Against Persons.
  • A total of 25,400 persons were arrested for DUI, including 163 juveniles.
  • A total of 531 hate crime incidents were reported.
  • There were a total of 1,643 assaults on law enforcement officers and no officers killed in the line of duty.
  • Full-time law enforcement employees totaled 15,873; of these 11,078 were commissioned officers.
  • There were 11,986 arrests for drug abuse violations; of that number, 10.2% were persons under 18 years of age.
  • Possessing/concealing of marijuana constituted 16.7% of the total drug abuse incidents; the distributing/selling of marijuana accounted for 1.1% of incidents(type of criminal activity can be entered three times in each incident).
  • Possessing/concealing of heroin constituted 32.2% of the total drug abuse incidents; the distributing/selling of heroin accounted for 4.6% of incidents (type of criminal activity can be entered three times in each incident).
  • The weapon type of “Personal Weapons” (hands, fists or feet) was reported in 51,817 incidents; firearms were reported in 8,465 incidents (up to three weapons can be reported in each incident).
  • There were 6,212 sexual assault (forcible and non-forcible) incidents reported in 2017. There were a total of 6,212 victims in these incidents; with a total of 6,300 offenders.
  • There were a total of 54,294 domestic violence incidents reported; 12,023 of these incidents were Violations of Protection or No Contact Orders.

Overall, the data is very interesting.

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.

Marijuana & Necessity

Bellingham Defense Attorney, Continuance, Discovery, Drug Offenses, Evidence, Expert Testimony, felony, marijuana, Motions In Limine, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Image result for marijuana medically necessary

In State v. Ruelas, the WA Court of Appeals held that a defendant in possession of more than 40 grams of marijuana who asserts a necessity defense must present a medical expert witness to support the defense.

BACKGROUND FACTS

On November 10, 2015, Sergeant Garcia stopped Mr. Ruelas for speeding. Mr. Ruelas rolled down his window and gave Sergeant Garcia his license and registration. Sergeant Garcia smelled marijuana coming from the pickup truck. He asked Mr. Ruelas about the smell and asked him to roll down his rear window. Mr. Ruelas complied, and Sergeant Garcia saw a large garbage bag containing marijuana. Sergeant Garcia then arrested Mr. Ruelas for felony possession of marijuana.

Mr. Ruelas said he had a medical marijuana card but did not provide one. Sergeant Garcia then read Mr. Ruelas his Miranda rights.

On February 26, 2016, the State charged Mr. Ruelas with one count of possession of marijuana over 40 grams.

On June 13, 2016, the trial court held a CrR 3.5 hearing. The court found that Mr. Ruelas’s initial pre-Miranda statement was the result of a routine processing question and that his additional statements were made either spontaneously and not in response to a question likely to produce an incriminating response. The court denied Mr. Ruelas’s suppression motion. After the court’s ruling, Mr. Ruelas requested a continuance to find an expert witness.

After two more continuances, on October 18, 2016, Mr. Ruelas filed his final witness list. However, the list did not include a medical expert.

On October 25, 2016, trial began. The court addressed motions in limine and questioned Mr. Ruelas about his defense of medical necessity. Mr. Ruelas explained that he was asserting the common law defense of medical necessity, not the statutory defense under the Washington State Medical Use of Cannabis Act. The State objected to the defense on the basis that Mr. Ruelas could not lay a proper foundation without having a medical expert testify. The court agreed, and did not allow testimony from Mr. Ruelas’s expert.

The trial resumed, closing arguments were given, and the jury found Mr. Ruelas guilty. He appealed.

COURT’S ANALYSIS & DISCUSSION

The WA Court of Appeals found that the Necessity defense required medical testimony. It reasoned that a defendant asserting the necessity defense must prove four elements by a preponderance of the evidence. The four elements are: (1) the defendant reasonably believed the commission of the crime was necessary to avoid or minimize the harm, (2) the harm sought to be avoided was greater than the harm resulting from a violation of the law, (3) the threatened harm was not brought about by the defendant, and (4) no reasonable legal alternative was available that is as effective as marijuana.

Here, the Court of Appeals reasoned that the defendant was required to show corroborating medical evidence that no other legal drugs were as effective in minimizing the effects of the disease. Furthermore, it reasoned that it made sense that the expert could testify to knowing the qualities of other drugs, not just the personal preference of the defendant.

The Court of Appeals also disagreed with Mr. Ruelas’s arguments that the trial court wrongfully disallowed Mr. Ruelas’s expert witness from testifying. In fact, the Court actually addressed whether Mr. Ruelas himself should be sanctioned for violating the discovery rule that parties must disclose their witnesses well before trial begins:

“A trial court may sanction a criminal defendant under CrR 4.7(h)(7)(i) for failing to comply with discovery deadlines by excluding the testimony of a defense witness.”

Here, however, the trial court did not sanction Mr. Ruelas’s for the late disclosure of his expert witness.

“Our review of the record convinces us that Mr. Ruelas did not act willfully or in bad faith,” said the Court of Appeals. “Mr. Ruelas explained that it was difficult to obtain his mother’s medical records, which Dr. Carter needed to review. Mr. Ruelas also expressed difficulty in communicating with Dr. Carter, who he described as very busy.”

Nevertheless, the Court of Appeals also rejected Ruelas’s arguments that the trial court abused its discretion when it precluded Ruelas’s expert witness from testifying. “Mr. Ruelas does not cite any authority that holds that a trial court abuses its discretion when it precludes an expert disclosed during trial from testifying,” said the Court of Appeals. “We presume there is no authority.”

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.

Car Stop & Purse Search

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, felony, Fourth Amendment, law enforcement, Mount Vernon Criminal Defense Attorney, police, Reasonable Suspicion, Search and Seizure, Skagit County Criminal Defense, Terry Stop, Traffic Infractions, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Should Cops Be Allowed to Rip Up Your Stuff While Looking for Drugs? | The New Republic

In State v. Lee, the WA Court of Appeals held that a passenger’s consent to a search of her purse was not spoiled by police conduct during the traffic stop.

BACKGROUND FACTS

Defendant Ms. Lee was the front seat passenger in a car driven by Mr. Peterman. Detective Tilleson initiated a traffic stop for two traffic infractions. Detective Tilleson asked Peterman for his identification, learned his license was suspended, and arrested him for first degree driving while license suspended or revoked. Peterman consented to a search of the car.

Detective Tilleson told Ms. Lee to step out to facilitate his search of the car. She left her purse inside the car. Detective Tilleson ran Lee’s identification information to determine if she had a driver’s license so she could drive the car if it was not impounded. He learned Lee had a valid driver’s license and a conviction for possession of a controlled substance.

Lee began to pace back and forth near the car. At some point, Detective Fryberg directed Lee to sit on a nearby curb. During a conversation, Lee told Detective Tilleson the purse in the car was hers. Detective Tilleson asked Lee for permission to search her purse, telling her that he was asking “due to her prior drug conviction.” He also gave Lee warnings pursuant to State v. Ferrier that she was not obligated to consent and that she could revoke consent or limit the scope of the search at any time.

Lee consented to the search. When Detective Tilleson asked Lee if there was anything in her purse he should be concerned about, she said there was some heroin inside. Detectives found heroin and methamphetamine in her purse, advised Lee of her Miranda rights, and arrested her for possession of a controlled substance with intent to manufacture or deliver.

Before trial, Lee moved to suppress the evidence obtained from the search of her purse. The trial court denied Lee’s motion to suppress the results of the search of her purse. The court found “the testimony of the detectives involved was more credible than the defendant’s testimony. The trial court also determined that all of Lee’s statements were voluntary and that none were coerced. Finally, the court concluded that Lee validly consented to a search of her purse.

At the bench trial, the judge found Lee guilty as charged. Lee appealed on arguments that she did not validly consent to the search of her purse because the detectives unlawfully seized her.

LEGAL ISSUE

Whether police exceeded the reasonable scope and duration of the traffic stop by asking Ms. Lee’s consent to search her purse while mentioning her prior drug conviction.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals stated that both the Fourth Amendment of the United States Constitution and article 1, section 7 of the Washington Constitution prohibit a warrantless search or seizure unless an exception applies. Voluntary consent is an exception to the warrant requirement.

“But an otherwise voluntary consent may be vitiated by an unlawful seizure,” reasoned the court of Appeals. “When analyzing a passenger’s consent to search the purse she left in
the car, we start with the traffic stop that led to the search.”

Here, the Court said the Fourth Amendment and WA Constitution both recognize an
investigative stop exception to the warrant requirement as set forth in the landmark U.S. Supreme Court case, Terry v. Ohio. “The rationale of Terry applies by analogy to traffic stops applies by analogy to traffic stops,” said the Court of Appeals.

The Court of Appeals explained that the proper scope of a Terry stop depends on the purpose of the stop, the amount of physical intrusion upon the suspect’s liberty, and the length of time the suspect is detained. A lawful Terry stop is limited in scope and duration to fulfilling the investigative purpose of the stop. “Once that purpose is fulfilled, the stop must end,” reasoned the Court.

Ultimately, the Court found that once the arrested driver consented to a search of the vehicle, it was not unreasonable for the detective to ask the passenger – here, Ms. Lee – if she consented to a search of the purse she left in the car. The detectives legitimately checked Lee’s identification to determine whether she was a licensed driver and could drive the car from the scene following Peterson’s arrest. And the search of the purse occurred roughly 18 minutes after the traffic stop began.

“We conclude Lee’s voluntary consent to search her purse was not vitiated by police conduct at the traffic stop. Specifically, under the totality of the circumstances, the police did not exceed the reasonable scope and duration of the traffic stop.”

In addition, the Court reasoned that the mention of Lee’s prior drug conviction must also be considered as part of the totality of the circumstances. “Here, there was a single mention of the conviction in passing,” said the Court. “There was no physical intrusion upon Lee.”

With that, the Court of Appeals concluded that the police did not exceed the reasonable scope or duration of the traffic stop under the totality of the circumstances. Therefore, Lee failed to establish that her voluntary consent to search her purse was vitiated by police conduct. Her conviction was affirmed.

Please contact my office if you, a friend or family member are charged with a crime involving a questionable search and seizure by the police. Hiring competent and experienced defense counsel is the first and best step toward justice.

Report Offers Recommendations on Pretrial Release

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Washington courts have the opportunity, with more information and robust pre-trial services, to safely release citizens who are charged with criminal offenses and awaiting trial, according to a report released today by Washington’s Pretrial Reform Task Force.

Washington’s Pretrial Reform Task Force was launched in June, 2017. Its purpose was to examine factors driving pretrial decisions that lead to high detention rates, and to develop recommendations for improving pretrial justice in Washington.

“Under current practices in Washington, many courts have limited information about an individual when making pretrial release or detention decisions, and have limited pretrial services to offer as an alternative to jail,” the report states.

The final report of the Task Force lists 19 recommendations in three categories — pretrial services; risk assessment; and data collection.

“It is my hope that the report sparks dialogue within our trial  courts on what might be necessary improvements to the pretrial phase of the justice process,” said Washington Supreme Court Justice Mary Yu, Chair of the Washington Supreme Court Minority and Justice Commission, one of three sponsors of the Task Force. “We hope courts will review the recommendations and explore new partnerships   in their local communities to reinforce the constitutional presumption of innocence and our court rules that assume pretrial release. We believe the report will encourage alternatives to incarceration. ”

The Task Force is also headed by the Superior Court Judges’ Association and the District and Municipal Court Judges’ Association.

“There are a number of steps courts can take, with the help of the Legislature and local officials, to improve safety, promote justice and ensure that we have a pre-trial system that is fair and equitable,” said King County Superior Court Judge Sean O’Donnell, past-president of the Superior Court Judges’ Association and member of the Task Force’s Executive Committee.

The report details several major findings:

  • Pretrial Services: Governments should bear the cost of pretrial services rather than the accused: Accused persons cannot and should not be required to incur additional costs or debts as a result of their participation in pretrial services. Pretrial services include, but are not limited to: electronic monitoring, drug and alcohol monitoring, mental/behavioral health treatment, and court reminders.
  • Court Reminders: The available research consistently shows that pretrial court date reminders through texts, emails, mail or phone calls are an effective method to reduce the risk of failure to appear, and should be available to all defendants.
  • Voluntary Service Referrals: Referrals such as mental and/or behavioral health treatment, vocational services, or housing assistance should be offered to assist defendants maintain court attendance and supervision compliance, and prevent re-arrest. Referrals should be individualized, offered voluntarily rather than as a condition of release, and should involve little or no cost to the individual.
  • Stakeholder Involvement: A local stakeholder group can make actionable recommendations to improve the practices and outcomes of the pretrial system, and can ensure the success of reforms by soliciting input from all participants and by making informed decisions as a team, rather than separate and distinct entities.
  • Transportation support: Offering free or subsidized transportation to defendants for court appointments can help ensure low-income people and people with disabilities can attend their court-ordered appointments.

“We know courts are already using pretrial risk assessments across Washington,” said Spokane Municipal Court Judge Mary Logan, co-chair of the Trial Court Sentencing and Supervision Committee and a member of the Task Force’s Executive Committee. “Judges should have all the tools necessary to make informed pretrial release decisions. Courts considering use of risk assessment tools should also plan how to monitor impacts and incorporate evidence-based best practices.”

Membership in the Task Force includes 55 judges, prosecutors, public defenders, bail business owners, court administrators and officials, community members and researchers. The Task Force received training from the national Pretrial Justice Institute through its 3DaysCount Campaign, which is working across the U.S. to encourage evidence-based improvements in pretrial practices.

My opinion? This is good news.

While community safety is a paramount concern for trial judges, defendants are presumed to be released while awaiting trial under Washington Court Rule 3.2. However, pretrial detention nationwide has been on the rise, with many jail populations containing detainees that can be safely released while awaiting their trial date.

Pretrial detention can have severe consequences for accused persons, particularly in the areas of employment, housing and family. Unnecessary detention is also costly for taxpayers and communities, and conflicts with Washington’s constitution and judicial branch rules, which establish a presumption of release with the fewest conditions necessary.

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.