Tag Archives: Mount Vernon Criminal Defense

Racial Disparities & Homicide

Bellingham Defense Attorney, police, Race & Law, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

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Homicides involving white victims are significantly more likely to be solved with the arrest of a suspect than homicides involving victims of color, causing racial disparities in capital sentencing to begin as early as police investigations.

In a working paper, “Police, Race, and the Production of Capital Homicides,” Jeffrey Fagan of Columbia Law School and Amanda Geller of the New York University Department of Sociology examined national homicide data from 1976 to 2009. Researchers have previously shown that black defendants are more likely than their white counterparts to be charged with crimes eligible for capital punishment, to be convicted, and to be sentenced to death—and that racial disparities are largest for the small number of cases involving black defendants and white victims.

Fagan and Geller’s analysis concludes that compared to homicides involving white victims, those involving black victims are 23% less likely to be cleared and those involving other victims, mostly Latinos, are 17% less likely.

In a Washington Post story exploring similar findings, police pointed to urban residents’ concerns about retaliatory violence while civil rights leader Rev. William Barber stated: “There’s no big rush to solve a case when it’s considered ‘black on black.’ But if it is a black-on-white killing, then everything is done to make an arrest.”

Please contact my office if you, a friend or family member are charged with a crime and you suspect that the defendant or victim’s race or gender was a contributing factor in the investigation or filing of criminal charges. Our Constitution proclaims justice for all.

Federal Legislation to End Cash Bail

Bail, Bellingham Defense Attorney, Jail, Legislation, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

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Excellent news article by  of The Intercept discusses how Senator Bernie Sanders introduced legislation to end money bail on the federal level and create incentives for states to follow suit.

According to  , The No Money Bail Act is the latest example of the push from the Democrats to tackle criminal justice reform. It would prohibit money bail in federal criminal cases, provide grants to states that wish to implement alternate pretrial systems, and withhold grant funding from states that continue using cash bail systems.

Additionally, the bail reform “requires a study three years after implementation to ensure the new alternate systems are also not leading to disparate detentions rates,” according to a summary of the bill provided by Sanders’s office.

“It has always been clear that we have separate criminal justice systems in this country for the poor and for the rich,” the summary reads. “A wealthy person charged with a serious crime may get an ankle monitor and told not to leave the country; a poor person charged with a misdemeanor may sit in a jail cell. And this disproportionately affects minorities — fifty percent of all pretrial detainees are Black or Latino.”

In a statement accompanying the release of his bill, Sanders said the following:

“Poverty is not a crime and hundreds of thousands of Americans, convicted of nothing, should not be in jail today because they cannot afford cash bail. In the year 2018, in the United States, we should not continue having a ‘debtor prison’ system. Our destructive and unjust cash bail process is part of our broken criminal justice system – and must be ended.”

Also according to , the idea of eliminating money bail is controversial, even among Democrats, so it is unlikely that the legislation will soon be enacted into law. Indeed, Rep. Ted Lieu, D-Calif., introduced a similar measure in the House in 2016 and 2017, but his bills gained little traction. Last year, Sens. Kamala Harris, D-Calif., and Rand Paul, R-Ky., introduced a measure to encourage states to reform bail practices, though they did not go as far as calling to eliminate cash bail on the federal level.

Still, these efforts represent a growing sense of urgency among lawmakers to address the racial disparities that plague the criminal justice system. Senate Minority Leader Chuck Schumer last month introduced a bill to decriminalize marijuana at the federal level, removing the drug from the Controlled Substances Act. The House passed a tepid prison reform bill that was pushed by President Donald Trump’s son-in-law Jared Kushner in May, and the Senate has introduced similar legislation.

For-profit companies are “making a fortune” off indigent defendants, according to the summary of the Sanders bill. Indeed, the for-profit bail industry makes between $1.4 billion and $2.4 billion a year, the American Civil Liberties Union wrote in a 2017 report. An inability to afford bail leaves defendants across the country languishing in pretrial detention bars for extended periods of time; in 2014, about 60 percent of people in U.S. jails had not been convicted of a crime, the Department of Justice’s Bureau of Justice Statistics reported.

“Pretrial detention should be based on whether or not someone truly should not be freed before their trial,” the summary continued. “It should not depend on how much money they have, or what kind of mood the judge is in on a given day, or even what judge the case happens to come before. We also must insure that jurisdictions do not eliminate cash bail but find pretexts to continue unfairly locking people up before trial.”

State and local governments have made similar efforts in recent years. New Jersey has been at the forefront of the bail reform movement, largely eliminating its cash bail system last year. District attorneys in Brooklyn and Manhattan in January ordered prosecutors not to request bail in most misdemeanor cases. And Philadelphia District Attorney Larry Krasner also fulfilled one of his high-profile campaign promises when he announced an end of cash bail requirements for low-level offenses in February.

My opinion? The movement to end cash bail seems to be gaining momentum. If so, it’d eliminate a significant hurdle in gaining justice for defendants facing criminal charges.

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.

Backpage.com & Privacy

Bellingham Defense Attorney, Cell Phone, felony, Ineffective Assistance, Privacy, Prostitution, Search and Seizure, Search Warrant, Sex Crimes, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Online classified website Backpage.com takes down adult section amid government pressure | Fox 59

In In re Personal Restraint of Hopper, the WA Court of Appeals held that a defendant’s calls and text messages to the phone number listed in a Backpage.com advertisement were not private communications protected by the Washington Privacy Act.

BACKGROUND FACTS

In December 2012, Mr. Hopper searched Backpage.com with the intent of purchasing sex. Backpage operated an online classified advertising service, Its users created and posted their own ads, including ads in the adult category. This category included ads for prostitution activity, often under the guise of an adult escort or entertainment service. The ads often featured pictures of women identified by false names and ages, along with hourly rates.

Hopper saw an advertisement for a woman named “Whisper,” who he later learned was K.H. The ad stated that she was 19 years old. She was actually 16 years old. It listed a phone number that Hopper both called and contacted by text. When he contacted the number by text, he initially believed that he was communicating with K.H. But K.H.’s pimp, identified as Mr. Park, had listed his own number on the ad and was reading and responding to Hopper’s text messages.

In December 2012, police arrested Park and, with a warrant, searched his cell phone. K.H. told police that Hopper had paid to have sex with her and identified him from a photograph montage. The police located Hopper’s home address from the text messages stored on Park’s phone. The State charged Hopper with commercial sexual abuse of a minor. In March 2014, a jury convicted Hopper as charged.

Hopper appealed his conviction on arguments that his trial counsel gave ineffective
assistance by failing to move to suppress his text messages to K.H., which police found stored on Park’s cellular phone.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals reasoned that a privacy act violation occurs when “(1) a private communication transmitted by a device. . . was (2) intercepted or recorded by use of (3) a device designed to record and/or transmit (4) without the consent of all parties to the private communication.” Hopper claims that his text messages to K.H. were “private communications” under the act because he intended them for her alone and they concerned illegal activity. Whether communications are private is a question of fact but may be decided as a question of law where, as here, the parties do not dispute the facts.

The Court of Appeals noted the Act does not define “private.” Instead, Washington courts have adopted the dictionary definition. Nevertheless, Washington courts will generally presume that each of the two parties participating in the conversation intends it to be private.

“Hopper’s subjective expectation of privacy was objectively unreasonable,” said the Court of Appeals. The Court explained that Hopper responded to an ad on Backpage.com, a website notorious for advertising prostitution activity. The ad was titled “any way you want it 19” and featured an unidentifiable woman with a fictitious name. A reasonable person would not expect that contacting a stranger by text through the phone number listed in this advertisement would provide a legitimate opportunity for a private conversation with a known person. Even Hopper admitted that “the picture wasn’t a good enough picture to clearly identify a specific person.”

“And regardless of whether Hopper was initially aware of K.H.’s pimp, it is common knowledge that prostitutes often have pimps. Thus, even though Hopper subjectively intended for his text messages to K.H. to be private, his communications were not private
because this expectation was unreasonable. Park did not violate the act when he recorded and stored Hopper’s messages to K.H. on his cell phone.”

The Court of Appeals concluded that because Hopper does not establish that these text messages were “private communications” under the act, he does not show that his counsel’s performance fell below an objectively reasonable standard of care. His claim failed. The Court of Appeals upheld Hopper’s conviction and found his attorney was not ineffective.

Please contact my office if you, a friend or family member face criminal charges involving searches of cell phones. Depending on the circumstances, the evidence might be suppressible. And for more information on search warrants, please read my Legal Guide on Search & Seizure.

California Eliminates Cash Bail

Bail, Bellingham Defense Attorney, Jail, Legislation, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

America Is Waking Up to the Injustice of Cash Bail | The Nation

Great article by Madison Park and Cheri Mossburg of CNN news covers how California will end the cash bail system in a sweeping reform for the state. Rather than requiring defendants to pay in order to be released before trial, their release will hinge on an assessment of their risk to public safety.

On Tuesday, the California Money Bail Reform Act, also known as Senate Bill 10, passed in the State Senate with a vote of 26-12, and the General Assembly by 42-31.
“SB 10 puts all Californians on equal footing before the law and makes public safety the only consideration in pretrial detention. This critical reform is long overdue,” said Toni Atkins, Senate president pro tempore.
“Today, California reforms its bail system so that rich and poor alike are treated fairly,” Gov. Jerry Brown said in a statement.
Brown signed the bill Tuesday, and the new law goes into effect October 1, 2019. California is the first state to eliminate money bail completely, according to the Pretrial Justice Institute, an organization that advocates for pretrial justice reform.
According to reporter Madison Park, critics have long contended that the money bail system perpetuates inequality. While some people are able to quickly get out of jail by posting bail, people who aren’t able to afford it sit in jail until the court takes action, or until they work with a bail bond agent to secure their freedom, which can leave them in debt.
“Abolishing money bail and replacing it with a risk-based system will enhance justice and safety. For too long, our system has allowed the wealthy to purchase their freedom regardless of their risk, while the poor who pose no danger languish in jail,” said Assemblymember Rob Bonta, one the lawmakers who introduced the bill, in a statement.
Under the new law, a pretrial assessment would be done by either court employees or a local public agency that has been contracted to determine a defendant’s risk. That entity would assess the likelihood that the person will not appear in court or commit a new crime while released, and would make a recommendation for conditions of release. The defendant will be assessed as high, medium or low risk. A person who is deemed as high risk, including those arrested for violent felonies, will not be released.
Surprisingly, the ACLU in California expressed disappointment over the bill, saying it “is not the model for pretrial justice and racial equity that California should strive for.”
“It cannot guarantee a substantial reduction in the number of Californians detained while awaiting trial, nor does it sufficiently address racial bias in pretrial decision making,” said the three executive directors of the California ACLU affiliates, Abdi Soltani (Northern California), Hector Villagra (Southern California) and Norma Chávez Peterson (San Diego & Imperial Counties). “Indeed, key provisions of the new law create significant new risks and problems.”
Indeed, the ACLU pulled its support for the bill earlier this month as the it underwent changes in the state legislature.
My opinion? This is a bold, progressive step. The subject of cash bail has always been a cantankerous subject which underscores how justice applies to the privileged vs. the non-privileged. For the underprivileged, defendants who cannot afford to pay bail are more likely to plead guilty to criminal charges. Jail is a terrible place, and getting out as soon as possible is an overwhelming desire for most defendants who find themselves there. There’s no justice in pleading guilty to crimes that we would otherwise not plead guilty to simply to get out of jail.
Let’s wait and see how California does. The success of  California Money Bail Reform Act could determine whether other states adopt similar legislation.
Please contact my office if you, a friend or family member face criminal charges and are held in jail pending the outcome of the case. Chances are, a competent attorney can persuade the judge to lower the bail or even release the defendant without bail on their personal recognizance. For more information, please read my Legal Guide titled, “Making Bail.”

“Can I Have My Case File?”

Bellingham Defense Attorney, Discovery, Rules of Professional Conduct, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , ,

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In State v. Padgett, the WA Court of Appeals held that a defendant’s motion to compel production of his client file and discovery materials is governed by CrR 4.7(h)(3) and RPC 1.6(d).  Although disclosure shall be granted when a criminal defendant requests copies of his or her file, without any showing of need, disclosure is also subject to redactions.

BACKGROUND FACTS

In 2014, Mr. Padgett was convicted of several felonies. In November 2016, during
the pendency of his appeal, he filed a motion to compel production of his client file. The trial court held a hearing on Mr. Padgett’s motion. However, the prosecutor opposed the motion citing procedural issues and an interest in limiting Mr. Padgett’s access to sensitive
information in the discovery file. Ultimately, the trial court sided with the prosecutor and denied Mr. Padgett’s motion. He appealed.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that under CrR 4.7(h)(3), defense counsel is authorized to provide discovery materials to a defendant “after making appropriate redactions which are approved by the prosecuting authority or order of the court.” Furthermore, under RPC 1.16(d) the professional conduct rules also require defense counsel to “surrender papers and property to which the client is entitled” upon termination of representation unless retention is “permitted by other law.”

The Court of Appeals also reasoned that Washington State Bar Association (WSBA) has issued an ethics advisory opinion interpreting RPC 1.16(d) to mean that “unless there is an express agreement to the contrary, the file generated in the course of representation, with limited exceptions, must be turned over to the client at the client’s request” at the conclusion of representation.

“Under the combined force of CrR 4.7(h)(3) and RPC 1.16(d), some sort of disclosure must be made when a criminal defendant requests copies of his or her client file and relevant discovery at the conclusion of representation. Similar to a public records request, no showing of need is required for disclosure.”

Despite its reasoning, the Court also gave limits and parameters. It said that while CrR 4.7(h)(3) and RPC 1.16(d) require disclosure, they do not entitle a defendant to unlimited access to an attorney’s file or discovery. Counsel may withhold materials if doing so would not prejudice the client.

That said, examples of papers – the withholding of which would not prejudice the client – would be drafts of papers, duplicate copies, photocopies of research material, and lawyers’ personal notes containing subjective impressions such as comments about identifiable persons. In addition, materials may be redacted as approved by the prosecuting attorney or court order, in order to protect against dissemination of sensitive or confidential information. Finally, a protective order may also be entered, if appropriate.

Against that background, and given the foregoing rules, the Court of Appeals held the trial court was obliged to grant Mr. Padgett’s motion for disclosure of his client file. It reasoned that if a defendant is denied access to his client file and related discovery materials, he will be deprived of a critical resource for completing a viable appeal.

My opinion? Good decision. Personally and professionally speaking, it benefits everyone when all parties are clear and transparent as possible regarding access to a client’s case file. Clients have a right to know and attorneys have a duty to provide.

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.

Inadmissible & Irrelevant Evidence

Bellingham Defense Attorney, Constitutional Rights, ER 404(B), Evidence, felony, Homicide & Manslaughter, Jury Trial, Offer of Proof, Self-Defense, Sixth Amendment, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

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In State v. Burnam, the WA Court of Appeals held that the trial court correctly excluded evidence that the woman the defendant killed had four years earlier dated a man accused of murder and that she had hid the murder weapon.

BACKGROUND FACTS

Mr. Burnam was charged with first degree murder or, in the alternative, second degree murder and interfering with the reporting of domestic violence. As trial approached, Mr. Burnam wanted to testify in support of his self-defense claim. He also wanted to testify that the victim Ms. Sweet had been involved in a prior homicide.

Apparently, four years earlier, Ms. Sweet dated a man accused of murder and she had hid the murder weapon, which was a firearm. Sometime after the homicide, Ms. Sweet briefly gave the firearm away and then attempted to get it back. When law enforcement questioned her, she was evasive and misleading. She was charged and convicted of first degree rendering criminal assistance by means of concealing, altering, or destroying the gun.

Mr. Burnam claimed that this was character evidence and asked the court to analyze its admissibility under ER 404(b). Under this evidence rule, evidence of prior acts can be admissible for certain other reasons, including motive, opportunity, and intent

Mr. Burnam made a lengthy offer of proof in support of his motion. He argued that the evidence would help establish the reasonableness of his fear of serious harm or death during his struggle with Ms. Sweet. He repeatedly asserted the jury should know that Ms. Sweet was involved with a homicide or capable of being involved with a person who had committed a homicide.

Despite defense counsel’s offer of proof, the court nevertheless excluded all evidence of the homicide case that Ms. Sweet was involved in.

At trial, Mr. Burnam testified he responded in self-defense to Ms. Sweet. Despite his testimony, the jury found Mr. Burnam guilty of first degree murder and interfering with the reporting of domestic violence. Mr. Burnam appealed on arguments that the court should have admitted evidence that Ms. Sweet was involved in a murder from four years ago.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that both the United States Constitution and the Washington Constitution guarantee the right to present testimony in one’s defense. Furthermore, a defendant’s right to an opportunity to be heard in his defense, including the rights to examine witnesses against him and to offer testimony, is basic in our system of jurisprudence. However, defendants can present only relevant evidence and have no constitutional right to present irrelevant evidence. If relevant, the burden is on the State to show the evidence is so prejudicial as to disrupt the fairness of the fact-finding process at trial.

Admissibility of Self-Defense Evidence.

The Court further reasoned that in considering a claim of self-defense, the jury must take into account all of the facts and circumstances known to the defendant.

“Because the vital question is the reasonableness of the defendant’s apprehension of danger, the jury must stand as nearly as practicable in the shoes of the defendant, and from this point of view determine the character of the act,” said the Court. “Thus, such evidence is admissible to show the defendant’s reason for fear and the basis for acting in self-defense.”

Moreover, evidence of a victim’s violent actions may be admissible to show the defendant’s state of mind at the time of the crime and to indicate whether he had reason to fear bodily harm. Thus, a defendant may, in addition to the character evidence, show specific acts of the victim which are not too remote and of which the defendant had knowledge at the time of the crime with which he is charged. Evidence of specific acts may be admissible for the limited purpose of showing the defendant had a reasonable apprehension of danger.

Finally, the court reasoned that an offer of proof should (1) inform the trial court of the legal theory under which the offered evidence is admissible, (2) inform the trial judge of the specific nature of the offered evidence so the court can judge its admissibility, and (3) create an adequate record for appellate review.

The Court of Appelas concluded that Mr. Burnam’s offer of proof failed to inform the trial judge of the specific nature of the offered evidence.

“Mr. Burnam’s offer of proof was lengthy but repeatedly vague on the specific nature of the offered evidence.”

The Court further concluded that Ms. Sweet merely pleaded guilty to rendering criminal assistance by disposing of a firearm used previously in a homicide. Nevertheless, rendering criminal assistance is a nonviolent felony.

“The mere fact that Ms. Sweet dated a man accused of murder and hid the murder weapon does not strongly imply that Ms. Sweet was violent. The prejudicial effect of excluding this questionable evidence is minimal. We conclude the trial court did not violate Mr. Burnam’s constitutional right to present a defense when it excluded this evidence.”

Consequently, the Court of Appeals upheld the trial court’s decision to exclude evidence that Ms. Sweet was indirectly involved in a homicide from four years earlier.

Please contact my office if you, a friend or family member are involved in cases involving assault or self-defense. Generally speaking, evidence that the victim had prior bad acts and/or had violent tendencies is admissible. However, court must undergo a balancing test under the evidence rules to determine if the evidence being offered is relevant, probative and/or unfairly prejudicial. This case was fairly straightforward in determining that the dead victim’s prior conviction for a non-violent crime was irrelevant.

Facebook Photos Admissible

"No-Impeachment" Rule, Bellingham Defense Attorney, Business Record, ER 404(B), Evidence, Federal Crimes & Prosecutions, Firearm, Fourth Amendment, Search Warrant, Skagit County Criminal Defense, Social Media, Technology, Uncategorized, Whatcom County Criminal Defense, , , , ,

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The 6th Circuit Federal Court of Appeals‘ recent court decision United States v. Farrad gives a very comprehensive analysis regarding the admissibility of Facebook records. In short, the  Court held that (1) photographs from a Facebook account were properly authenticated by evidence that the photos in question came from a Facebook account registered to the defendant and the photos appeared to show the defendant in his own apartment, and (2) The Facebook photographs were self-authenticating as a business record.

Washington’s evidence rules are either identical to, or extremely similar, to the federal rules discussed in the opinion.

BACKGROUND FACTS

After serving time in prison for a previous felony, Farrad was released from federal
custody in January 2013. Farrad came to the attention of local law enforcement sometime after June 10 of that same year, when various confidential informants and concerned citizens evidently reported observing Farrad to be in possession of one or more firearms while in Johnson City, Tennessee.

Some time later, a Officer Garrison of the Johnson City Police Department used an undercover account and sent Farrad a friend request on Facebook. After Farrad accepted the friend request, Garrison was able to see more of Farrad’s photos. One photo in particular caught his interest: a photo that showed what appeared to be three handguns sitting on a closed toilet lid in a bathroom. The photo was uploaded on October 7, 2013.

Garrison brought the photo to the attention of Johnson City police officer and FBI task
force officer Matthew Gryder, who applied on October 25, 2013, for a warrant to search Farrad’s Facebook’s records. A federal magistrate judge granted the warrant. The warrant allowed execution “on or before November 6, 2013,” and the return executed by federal law enforcement indicates that the warrant was “served electronically” on Facebook on November 1, 2013.

The resulting data yielded a series of additional photos that were central to this case: some show a person who looks like Farrad holding what appears to be a gun, while others show a closer-up version of a hand holding what appears to be a gun.

While none of the photos shows a calendar, date, or one-of-a-kind distinguishing feature, the person in the photos has relatively distinctive tattoos, and some of the photos show, as backdrop, the décor of the room in which they were taken. Facebook records revealed that the photos had been uploaded on October 11, 2013.

In September 2014, a federal grand jury charged Farrad with having, on or about October 11, 2013, knowingly possessed a firearm, namely, a Springfield, Model XD, .45 caliber, semiautomatic pistol.

On March 26, 2015, Farrad filed a pro se motion seeking an evidentiary hearing, dismissal of the indictment against him, and suppression of the Facebook photos on Fourth Amendment grounds. The magistrate judge assigned to Farrad’s case denied that motion on April 9, 2015, on the grounds that Farrad already had appointed counsel and the local rules prohibited a represented party from acting in his or her own behalf without an order of substitution. Farrad’s trial counsel did not renew Farrad’s motion.

The parties did, however, litigate the admission of the photos on evidentiary grounds.
The Government argued that the Facebook photos qualified as business records under Federal Rule of Evidence 803(6) and that they were, as such, self-authenticating under Federal Rule of Evidence 902(11).

In support of its assertion, the Government introduced a certification by a Facebook-authorized records custodian, who attested that the records provided by Facebook—including “search results for basic subscriber information, IP logs, messages, photos, and other content and records for Farrad’s Facebook identity were made and kept by the automated systems of Facebook in the course of regularly conducted activity as a regular practice of Facebook and made at or near the time the information was transmitted by the Facebook user.

In addition to disputing admissibility under Federal Rules of Evidence 401, 402, 403, 404, 405, and 406, Farrad’s trial counsel argued that the photos, despite the custodian’s affidavit having been “done correctly under the federal rules,” were “hearsay within hearsay” and did not “authenticate who took the pictures, when the pictures were taken, by whom, at what time. All that the custodian could attest to, trial counsel emphasized, was that at some point these pictures were uploaded to what was allegedly Farrad’s Facebook account, the custodian could not testify as to who took the photos, when they were taken, where they were taken.

On June 15, 2015, the district court concluded that it had found no indication of a lack of trustworthiness and that the photos qualified as business records under Rules 803(6) and 902(11). It also determined that the photos were relevant.

The jury found Farrad guilty. He appealed his case to the 6th Circuit Court of Appeals.

ISSUES

Farrad raises seven arguments on appeal: (1) that there was insufficient evidence
introduced at trial to support his conviction; (2) that the Facebook photos should not have been admitted into evidence; (3) that Officers Hinkle and Garrison should not have been permitted to testify as experts; (4) that the district court should have granted Farrad’s motion for a new trial; (5) that Farrad did not in fact qualify as an armed career criminal under the ACCA; (6) that finding him to be an armed career criminal at sentencing violated his Fifth and Sixth Amendment rights; and (7) that the district court should have excluded the Facebook photos on Fourth Amendment grounds.

In this blog post, we focus on the issue of whether the Facebook photos were admissible at trial.

COURT’S ANALYSIS & CONCLUSIONS

Admissibility of Photos

The Court reasoned that like other evidence, photographs must be authenticated prior to being admitted into evidence. To satisfy this requirement, under federal evidence rule (FRE) 901, the person seeking to admit the evidence (proponent) must produce evidence proving that the item is what the proponent claims it is. This authentication rule requires only that the court admit evidence if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification.

The Court further reasoned that under FRE 902, some items – like, apparently Facebook posts – are self-authenticating. In other words, they require no extrinsic evidence of authenticity in order to be admitted. This category of self-authenticating evidence includes “certified domestic records of a regularly conducted activity”—that is, a business “record that meets the requirements of Rule 803(6)(A)–(C), so long as properly certified by a custodian or other qualified person  and so long as the evidence is subject to challenge by  the opposing party.

“The question, then, is the central one: the authentication of the photos,” said the Court. “They appeared to show Farrad, his tattoos, and (perhaps most probatively) distinctive features of Farrad’s apartment, as confirmed by police investigation . . . The district court was correct to admit them.”

Fourth Amendment Suppression

After addressing the admissibility issue, the Court went on to reject Farrad’s claim that admitting the Facebook photos violated the Fourth Amendment. The Court reasoned that while a search made by a private entity acting at the direction of law enforcement agents must comport with the Fourth Amendment, Farrad has pointed to no authority or rationale to suggest that a date of execution similarly binds a third party’s certification of its records for evidentiary purposes. “This argument lacks merit,” said the Court.

“The bottom line in this case—that Farrad has been sentenced to serve 188 months in prison because the Government found Facebook photos of him with what appears to be a gun—may well raise a lay reader’s hackles. There are likewise aspects of Farrad’s trial and
conviction—the date issue, Officer Garrison’s testimony—that are at least debatably troubling from a legal perspective. Nevertheless, we are not empowered to grant relief based on arguments not made or where errors were harmless.”

With that, the Sixth Circuit affirmed Farrad’s conviction and sentencing.

My opinion? Today’s defense attorney must be proficient in the admissibility of social media evidence. And the answers are fairly straightforward. Although the general rule is that hearsay is not admissible, and that social media evidence is hearsay, some hearsay evidence is admissible under the business record exception. Clearly, anything and everything that social media outlets like Facebook produces – from profiles to posts – are business records, arguably.

This is a classic example telling us to watch what we post on Facebook and other social media. Information is private until its not.

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.

Pretext Traffic Stop

Bellingham Defense Attorney, Constitutional Rights, Fourth Amendment, law enforcement, No Contact Order, police, Pretext, Search and Seizure, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

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In State v. Hendricks, the WA Court of Appeals held that a traffic stop for Failure to Transfer Title was not unlawfully pretextual because the stop was initiated based upon running license plates as vehicles passed him and the deputy did not recognize the vehicle’s occupants until after initiating the traffic stop.

BACKGROUND FACTS

Ms. Ciulla was named as a protected party in a no contact order issued against
Hendricks. On September 8, 2016, the State charged Hendricks with Violation of a No-Contact Order, alleging that he knowingly had contact with Ciulla. Hendricks filed a CrR 3.6 motion to suppress evidence seized from the traffic stop leading to his arrest, asserting that there was no lawful basis for the traffic stop.

At the CrR 3.6 hearing, Clallam County Sheriff’s Deputy Federline testified that he
was on duty on the evening of September 7, 2016 when he saw a Mazda pickup truck and ran the license plate of the vehicle. Upon his check of the truck’s license plate, Deputy Federline found that more than 15 days had passed since ownership of the vehicle had changed, but the title had not been transferred.

When the truck passed, Deputy Federline also saw that the truck’s back license plate was partially obscured by a trailer hitch. Deputy Federline conducted a traffic stop of the truck. When Deputy Federline made contact with the vehicle’s occupants, he recognized Ciulla in the front passenger seat and Hendricks in the back seat. Deputy Federline arrested Hendricks. Following this testimony, Hendricks argued that Deputy Federline lacked authority to stop the truck based either on a failure to timely transfer title or on an obscured license plate.

The trial court denied Hendricks’s motion to suppress. Following the trial court’s denial of his CrR 3.6 suppression motion, Hendricks waived his right to a jury trial, and the matter proceeded to bench trial on a stipulated record. The trial court found Hendricks guilty of violation of no contact order. The trial court also found that Hendricks committed his offense against a family or household member. Hendricks appealed from his conviction.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution generally prohibit searches and seizures absent a warrant or a recognized exception to the warrant requirement. One such exception to the warrant requirement is an investigative stop as set forth in Terry v. Ohio, a landmark search and seizure case which applies to traffic violations. Also, a law enforcement officer may conduct a warrantless traffic stop if the officer has a reasonable and articulable suspicion that a traffic violation has occurred or is occurring.

The court rejected Hendricks’s arguments that the failure to comply with RCW 46.12.650(5)(a)’s requirement of transferring title within 15 days of delivery of a vehicle does not constitute a traffic infraction under RCW 46.63.020 because the failure to timely transfer title is not a parking, standing, stopping, or pedestrian offense.

“The plain language of RCW 46.63.020 shows that the legislature intended to treat the failure to timely register a vehicle’s title as a traffic infraction and, thus, the trial court correctly concluded that Deputy Federline had an articulable suspicion justifying his stop of the vehicle in which Hendricks was riding as a passenger.”

Next, the Court of Appeals addressed whether the stop was unlawfully pretextual.

Pretextual Traffic Stops

The Court reasoned that Article I, section 7 of the Washington Constitution prohibits pretextual traffic stops. State v. Ladson, 138 Wn.2d at 358. A pretextual traffic stop occurs when a law enforcement officer  stops a vehicle in order to conduct a speculative criminal investigation unrelated to enforcement of the traffic code. Ladson, 138 Wn.2d at 349. Whether a given stop is pretextual depends on the totality of the circumstances, “including both the subjective intent of the officer as well as the objective reasonableness of the officer’s behavior.” Ladson, 138 Wn.2d at 359.

I t further reasoned that a traffic stop is not pretextual even where the officer has an additional motivation for conducting the stop apart from a suspected traffic violation, so long as the officer’s purported motive in investigating a suspected traffic violation was an actual, conscious, and independent reason for the stop. State v.
Arreola, 176 Wn.2d 284, 299-300, 290 P.3d 983 (2012).

“Hendricks suggests that Deputy Federline had suspected the vehicle’s occupants of being
involved in drug activity and used the failure to timely transfer title as a pretext to investigate the vehicle and its occupants for drug related offenses,” said the Court. “This is pure speculation without any support in the record.”

The Court reasoned that Deputy Federline was the only witness at the CrR 3.6 hearing. Furthermore, the deputy testified that he was parked at an intersection running the license plates of southbound traveling vehicles when he saw the vehicle at issue. Deputy Federline began to initiate his traffic stop after finding that the title to the vehicle at issue was not timely transferred following a change in ownership. Finally, Deputy Federline recognized Hendricks and Ciulla only after initiating the traffic stop and contacting the driver of the vehicle.

“In short, Hendricks fails to identify any evidence in the record that would have supported a claim that Deputy Federline’s traffic stop was a pretext to investigate a crime unrelated to a suspected traffic infraction.”

Consequently, the Court held that because the record lacked of any evidence supporting a claim that Deputy Federline conducted a pretextual traffic stop, Hendricks can show neither deficient performance nor resulting prejudice from defense counsel’s decision to decline raising the issue at the CrR 3.6 hearing.  Accordingly, the Court of Appeals affirmed Hendrick’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.

Praying While Arrested

42 U.S.C. § 1983, Bellingham Defense Attorney, Constitutional Rights, Disorderly Conduct, First Amendment, Fourth Amendment, Obstructing, Qualified Immunity, Search and Seizure, Skagit County Criminal Defense, Uncategorized, United States Supreme Court, Whatcom County Criminal Defense, , , , ,

Image result for praying while handcuffed

In Sause v. Bauer, the United States Supreme Court held that a police officer may lawfully prevent a person from praying at a particular time and place, such as when a suspect who is under arrest seeks to delay the trip to the jail by insisting on first engaging in conduct that, at another time, would be protected by the First Amendment.

BACKGROUND FACTS

Petitioner Mary Ann Sause filed this civil rights action under U. S. C. §1983, and named the Louisburg, Kansas, police department as the defendant/respondent in the lawsuit.

The centerpiece of Ms. Sause’s complaint was the allegation that two of the town’s police officers visited her apartment in response to a noise complaint, gained admittance to her apartment, and then proceeded to engage in a course of strange and abusive conduct, before citing her for disorderly conduct and interfering with law enforcement.

At one point, Ms. Sause knelt and began to pray. However, one of the officers ordered her to stop. She also claimed that officers refused to investigate her complaint that she was assaulted by residents of her apartment complex, and that officers threatened to issue a citation if she reported this to another police department. In addition, she alleged that the police chief failed to follow up on a promise to investigate the officers’ conduct.

Ms. Sause’s complaint asserted a violation of her First Amendment right to the free exercise of religion and her Fourth Amendment right to be free of any unreasonable search or seizure. The defendants moved to dismiss the complaint for failure to state a claim on which relief may be granted, arguing that the defendants were entitled to qualified immunity. The Federal District Court granted the motion to dismiss her lawsuit.

Ms. Sause appealed, however, the Court of Appeals for the Tenth Circuit affirmed the decision of the District Court, concluding that the officers were entitled to qualified immunity.

COURT’S ANALYSIS AND CONCLUSIONS

“There can be no doubt that the First Amendment protects the right to pray,” said the Court. “Prayer unquestionably constitutes the “exercise” of religion.” The Supreme Court also reasoned that at the same time, there are clearly circumstances in which a police officer may lawfully prevent a person from praying at a particular time and place. “For example, if an officer places a suspect under arrest and orders the suspect to enter a police vehicle for transportation to jail, the suspect does not have a right to delay that trip by insisting on first engaging in conduct that, at another time, would be protected by the First Amendment.”

Furthermore, the Court also reasoned that when an officer’s order to stop praying is alleged to have occurred during the course of investigative conduct that implicates Fourth Amendment rights, the First and Fourth Amendment issues may be inextricable.

The court ruled that in this case, it was is unclear whether the police officers were in Ms. Sause’s apartment at the time in question based on her consent, whether they had some other ground consistent with the Fourth Amendment for entering and remaining there, or whether their entry or continued presence was unlawful. The Court found that Ms. Sause’s complaint contains no express allegations on these matters. “Nor does her complaint state what, if anything, the officers wanted her to do at the time when she was allegedly told to stop praying. Without knowing the answers to these questions, it is impossible to analyze petitioner’s free exercise claim.”

Despite agreeing with the Government on this issue, the Supreme Court nevertheless reversed the judgment of the Tenth Circuit which dismissed Ms. Sause’s case and remanded her case back to federal court for further proceedings consistent with this opinion.

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

Unlawful Opinion Testimony of Police Officer

Assault, Bellingham Defense Attorney, Eluding, ER 704, Jury Trial, Motions In Limine, Opinion Testimony, Skagit County Criminal Defense, Theft of Motor Vehicle, Washington Court of Appeals, Whatcom County Criminal Defense, , , ,

Chicago cops reluctantly testify against 1 of their own

In State v. Winborne, the WA Court of Appeals held that an officer’s use of the word “reckless” or “eluding” while testifying in a Felony Eluding trial was improper opinion testimony.

BACKGROUND FACTS

The State of Washington charged Tishawn Winborne with Theft of a Motor Vehicle, two counts of Attempting to Elude a Police Vehicle, one count of Second Degree Assault, and one count of Third Degree Assault. The assault charges arise from his resisting
of police officers.

At the start of trial, Tishawn Winborne made a motion in limine to prohibit the State’s witnesses from testifying regarding ultimate factual issues such as whether Winborne “eluded” or drove “recklessly.” However, the trial court denied the motion. For those who don’t know, a motion in limine is a pretrial motion asking that certain evidence be found inadmissible, and that it not be referred to or offered at trial.

During trial, State witnesses repeatedly testified to Tishawn Winborne’s driving “recklessly” or “eluding” law enforcement. At the close of the State’s case, the trial court dismissed the Theft of a Motor Vehicle charge because of insufficient evidence.

The jury found Tishawn Winborne guilty of both counts of Attempting to Elude a Police Vehicle, but acquitted Winborne of both assault charges.

Winborne appealed. Among other issues, he challenged the trial court’s denial of his motion in limine to prohibit any witness from testifying that Winborne drove “recklessly” or “eluded” police.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that no witness, lay or expert, may testify to his or her opinion as to the guilt of a defendant, whether by direct statement or inference. Whether testimony provides an improper opinion turns on the circumstances of the case, including (1) the type of witness involved, (2) the specific nature of the testimony, (3) the nature of the charges, (4) the type of defense, and (5) the other evidence before the trier of fact.

Next, the Court held this case was similar to the controlling precedent of State v. Farr-Lenzini:

“The state trooper in State v. Farr-Lenzini did not employ the word “reckless” in his testimony as did officers in Tishawn Winborne’s trial. Nevertheless, the same reasoning behind excluding the testimony applies. An officer can testify to his observations of the driving of the defendant without drawing conclusions assigned to the jury.”

Finally, the Court of Appeals held that the trial court abused its discretion by denying Tishawn Winborne’s motion in limine. It reasoned that the State’s police officer witnesses testified by direct statements to Tishawn Winborne’s guilt. “Whether Tishawn Winborne drove ‘recklessly’ or ‘eluded’ the officer is an element of attempting to elude a police vehicle,” said the Court. “A law enforcement officer’s improper opinion testimony may be particularly prejudicial because it carries a special aura of reliability.”

With that, the Court of Appeals reversed Tishawn Winbome’s convictions for Felony Eluding a Police Officer and remanded for a new trial.

My opinion? Good decision. The Court of Appeals is correct in saying that a police officer’s improper opinion testimony may be particularly prejudicial because it carries a special aura of reliability. This is true. Instinctively, most jurors give much weight to the testimony of police officers. And the police officers know that. For those reasons, it is imperative for defense attorneys to argue pretrial motions in limine asking the trial judge to prohibit the police officers from offering their opinions at trial and to take exception to the court’s adverse rulings; thus preserving the issue for appeal. Kudos to the defense attorney in this case.

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