Tag Archives: Mt. Vernon Criminal Defense Attorney

Criminal Justice Bills Passed & Failed in the Senate

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Several bills recently passed and failed in the Senate, covering a wide array of issues related to criminal justice. These bills all now head to the House  in the coming weeks as the legislative session reaches month two. Here’s a  summary of some of the bills that passed and failed.

PASSED BILLS

Senate Bill 6442 would ban the operation of private, for-profit prisons in the state, as well as prohibiting the Department of Corrections (DOC) from contracting with these prisons. The bill also limits the circumstances under which the state can transfer an inmate from a Washington facility to an out-of-state private prison or detention facility.

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According to the text of the bill, the legislature found that for-profit prisons prioritize shareholder profits over the provision of health care, safety and nutrition to inmates, among other basic human needs, and that the operation of private prisons runs counter to the state’s mandate to ensure health, safety and welfare of those incarcerated in the state’s criminal justice system. If the bill passes, Washington would join 22 other states in banning for profit prisons.

Senate Bill 5488 would allow judges greater discretion when deciding cases involving adult defendants who are charged with committing a crime while under age 18. The bill grants judges the authority to consider the defendant’s age, lack of sophistication, susceptibility to peer pressure and age at the time the crime was committed.

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Judges overseeing these types of cases could refrain from imposing the mandatory sentencing requirements after considering the circumstances surrounding a defendant’s youth at the time the crime was committed, allowing the judge to impose a lesser sentence than what law requires.

FAILED BILLS

SB 6228, also called the “Felony Voting Rights Bill,” introduced legislation to automatically restore the voting rights of convicted felons when they are released from prison. However, the bill died unexpectedly in the Washington state Senate Wednesday. Majority Democrats abruptly ended debate on the controversial bill Wednesday evening when they realized they lacked the 25 votes needed to pass the measure.

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“We are extremely disappointed that the voting rights restoration bill did not pass,” said the ACLU of Washington in a statement Wednesday evening. “The right to vote is fundamental to our democracy and the time to tear down these barriers is long past due.”

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

Imprisoned At 7-11

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In  State v. Dillon, the WA Court of Appeals held that in Unlawful Imprisonment charges, the State must prove that the defendant knowingly restrained another person, not that the defendant knowingly acted without legal authority.

BACKGROUND FACTS

On December 21 2017, the soon-to-be victim Mr. Favors entered a 7-Eleven after he got off his bus. Favors encountered the soon-to-be defendant Mr. Dillon standing near the entrance to 7-Eleven. Favors noticed that Dillon had scratches on his face, was bleeding, and intoxicated. Favors thought that Dillon was panhandling and told him he did not have change. Favors continued into the 7-Eleven.

Dillon entered the 7-Eleven 10 to 15 seconds after Favors. Favors finished making his purchase and started walking towards the exit. Dillon was standing three feet in front of the exit. Dillon told Favors in a slurred voice to “get your ass back over there” and threatened to cut and shoot him. Favors feared that the situation would escalate and went to the back of the store. Favors tried to leave a second time and Dillon said “I told you one time; get your ass back over there.” Favors, who is African-American, recalled hearing a racial slur. Favors discreetly called 911.

Police arrived and arrested Dillon. At one point he  “reared his head back” and hit a police officer on his forehead and the bridge of his nose. The officer recalled that Dillon was
intoxicated, his balance was poor, and was making incoherent statements.

The State initially charged Dillon with Third Degree Assault of the police officer and Harassment of Favors, but amended the information to include Unlawful Imprisonment of Favors.

The defense requested a jury instruction on Voluntary Intoxication and the State did not object. The jury acquitted Dillon of felony harassment, but convicted him of third degree assault and unlawful imprisonment.

Dillon appealed on the issue of whether State must prove beyond a reasonable doubt that Dillon knowingly acted without legal authority.

COURT’S ANALYSIS & CONCLUSIONS

The State presented sufficient evidence that a reasonable juror could find beyond a reasonable doubt that Dillon knew he was acting without legal authority when he committed the crime of Harassment.

“The threats that Dillon made had no lawful purpose. Depending on the level of intoxication, a person under the influence can still form the requisite intent to know that their actions are unlawful.”

Dillon made threats to “cut” and “shoot” Favors, both of which demonstrate that Dillon knew he was acting without legal authority. Dillon “jumped” at Favors to prevent him from exiting the 7-Eleven, further supporting a finding that Dillon knew his actions were unlawfully restraining Favors.

Regarding the Unlawful Imprisonment conviction, the WA Court of Appeals ruled that Dillon did not say anything that indicated he thought he had legal authority to restrain Favors. Also, the Court denied the argument denied the defense of Escape and held that that Mr. Favors could not have safely departed 7-11 due to Mr. Dillon’s actions:

“Viewed in the light most favorable to the State, Favor’s testimony is sufficient to find, beyond a reasonable doubt, that Dillon restrained Favors’s movement, in a manner that substantially interfered with his liberty through intimidation, threats of violence, and by blocking the 7-Eleven exit.”

With that, the Court of Appeals upheld Dillon’s convictions.

Please contact my office if you, a friend or family member face criminal charges like Assault, Harassment or Unlawful Imprisonment. It’s imperative to hire an experienced and effective criminal defense attorney who knows the law.

Unlawful Jury Selection

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In State v. Guevara Diaz the WA Court of Appeals held that seating a juror without questioning from either defense counsel or the court into her ability to be fair can never be harmless and requires a new trial without a showing of prejudice.

BACKGROUND FACTS

The State charged Mr. Diaz with one count of second degree rape and one count of third degree rape. At the beginning of trial, the judge explained to the jury that he and the attorneys would be asking them questions, first with a questionnaire and then orally. The judge told the potential jurors that counsel had prepared a questionnaire and pointed out that each juror had “the opportunity to be questioned outside the presence of the other jurors in the event that certain questions are answered yes.”

Thirteen jurors stated that they wished to be questioned outside the presence of other jurors. Seven of them had answered they could not “be fair.” Six others, including juror 23, who also answered that they “could not be fair” did not ask to be questioned outside the presence of other potential jurors.

At the conclusion of jury selection, the court seated two jurors who said that they could not be fair. One of those jurors included juror 23. The jury found Mr. Diaz guilty of one count of second degree rape and one count of third degree rape (this conviction was later overturned on double jeopardy grounds).

On appeal, Mr. Diaz argued that the trial court violated his constitutional right to a fair and impartial jury by allowing a biased juror to serve.

COURT’S ANALYSIS & CONCLUSIONS

First, the WA Court of Appeals held that the trial court should not have allowed juror 23 to serve because she expressed actual bias without further inquiry.

“A criminal defendant has a federal and state constitutional right to a fair and impartial jury. Seating a biased juror violates this right. Because the presence of a biased juror cannot be harmless, seating an actually biased juror requires a new trial without a showing of actual prejudice.”

Second, the Court held that juror 23 demonstrated actual bias when she answered “No” to the fairness question.

The Court explained that the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution both guarantee a criminal defendant the right to trial by an impartial jury. To protect this right, a party may challenge a juror for cause. Actual bias provides a basis to challenge a juror for cause.

“The trial court should have addressed this actual bias by questioning juror 23 or allowing defense counsel to question her outside the hearing of other jurors,” said the Court. “Under the circumstances of this case, any court questioning also should have occurred outside the hearing of other jurors because of defense counsel’s viable concern over questioning potentially biased jurors in front of the jury pool.”

With that, the Court of Appeals reversed Mr. Diaz’s conviction and remanded his case for a new trial.

End ICE Courthouse Arrests

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Excellent article in Crosscut by  Lilly Fowler describes how the Washington state Legislature is considering a bill that would prohibit federal immigration agents without a warrant from making arrests within one mile of a courthouse.

If signed, the legislation – SB 6522 – would also require judicial warrants to be reviewed by a court before being used. And federal immigration agents would have to check in with local court staff before entering a courthouse. A website monitored by the state Administrative Office of the Courts would track all arrests made at courthouses.

Finally, the bill would prohibit court staff, including prosecutors, from sharing information with federal immigration officials. A recent report from the University of Washington Center for Human Rights revealed that county prosecutors have been sharing information with U.S. Immigration and Customs Enforcement (ICE) and Border Patrol agents to facilitate the arrests of undocumented immigrants at state and local courthouses.

As reported by Ms. Fowler, the outcry over immigrants being arrested at courthouses by plainclothes ICE and Border Patrol officials has been persistent. Washington state Attorney General Bob Ferguson sued the federal government last month in an attempt to stop such arrests, and the state Supreme Court is looking at rules that would bar the apprehensions.

At a hearing on the bill last week before the House Civil Rights and Judiciary Committee, legislators heard testimony in Spanish from a man named Carlos. He told lawmakers he and his wife recently visited the courthouse in Ephrata, Grant County, to renew his car’s license plates. While his wife waited in the vehicle, Carlos stood in line inside the courthouse and noticed a man staring at him. As Carlos exited the courthouse, another man with a gun approached him, introduced himself as a federal immigration official and, in Spanish, said, “Soy la migra” (or “I am ICE/Border Patrol”). Carlos was promptly arrested. Although he was eventually released by the ICE agent, the experience left him shaken and terrified.

Enoka Herat, an attorney with the American Civil Liberties Union of Washington, said the state would not be the first to protect its court system. In November, the Oregon Supreme Court barred warrantless arrests at courthousesCaliforniaNew York and New Jersey have also sought similar protections for immigrants. In Massachusetts, a federal judge barred courthouse arrests while a lawsuit makes its way through the court system.

My opinion?

I hope SB 6522 gains support and passes. The bill  isn’t about hampering the work of law enforcement. It’s about but ensuring the public can use courts to pay fines, serve as witnesses, seek protection orders and pursue other matters related to the justice system, without the fear of unexpected encounters with law enforcement.  Equal access to courts is something both Democrats and Republicans should be able to agree upon.

Felony Voting Rights Bill Pending in WA Legislature

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Excellent article in the Tacoma News Tribune by reporter James Drew describes how Senate Bill 6228 would make about 9,000 felons eligible to vote is moving ahead in the Washington state Legislature, as Democratic senators vow to expand democracy by removing a barrier they say is rooted in systemic racism.

Senate Bill 6228 would make felons automatically eligible to vote once they are released from state prison. Under current law, they are eligible once they have completed community custody — formerly known as probation — and that can take several years.

“The very essence of community custody is to get people back on the right track, to reintegrate them into society and to reduce the chances of re-offending,” said the bill’s sponsor, state Sen. Patty Kuderer, a Bellevue Democrat. “Restoring the right to vote and the right to participate in our democracy is an important tool for that reintegration process.”

“Until someone can show me that there’s a good reason to deprive someone of the right to vote because of the commission of a crime, then I will rethink that. But for now, I have seen zero evidence for that.”    ~Senator Patty Kuderer.

Stressing that her bill addresses a “major equality and social justice issue,” Kuderer said blacks and Native Americans are overly represented in the criminal justice system. As a result, they are “disproportionately stripped of their voting rights, diminishing their representation,” she said.

A Senate committee on Friday approved the bill, putting it one step closer to a vote by the Democratic-controlled Senate. If it becomes law, the measure would take effect in 2021.

Senate GOP Leader Mark Schoesler, R-Ritzville, is opposed to the bill, saying it removes an incentive for felons to fulfill obligations under community custody such as making restitution to crime victims. The bill states that sanctions for violating community custody requirements or failure to pay court costs, restitution to victims, or fines and fees would not take voter eligibility away from a former inmate.

Samuel Merrill, clerk of the criminal justice working group for the Olympia-based Quaker Voice on Washington Public Policy, said whites after the Civil War and Reconstruction adopted laws targeting former slaves for felonies to deprive them of their voting rights. The practice continued into the voter suppression laws under Jim Crow — “vestiges of which continue today,” Merrill said.

Supporters of the bill include the Washington Association of Prosecuting Attorneys, the state Department of Corrections, the ACLU of Washington, and Attorney General Bob Ferguson.

Meth Hurts Opioid Treatment

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The Journal of Substance Abuse Treatment  published a new study which found that methamphetamine use was associated with more than twice the risk for dropping out of treatment for opioid-use disorder.

The origins of the study are interesting. Apparently, Judith Tsui, a UW Medicine clinician specializing in addiction treatment, was seeing more and more patients she was treating for opioid-use disorder also using methamphetamines, a powerful, highly addictive stimulant that affects the central nervous system.

She would start the patients on buprenorphine, a medication to treat opioid use disorder, but they would often drop out. So she and colleagues wanted to see if this was a common problem. They conducted a large study (799 people) at three sites — Harborview Adult Medicine Clinic in Seattle and Evergreen Treatment Services in Olympia and Grays Harbor.

“This study confirms anecdotally what we sensed,” said Tsui. “The next step is to build into treatment models how we can help those patients who struggle both with opioids and methamphetamines to be successful.”

“A substantial proportion of these patients are homeless and may use meth to stay awake at night just to stay safe and keep an eye on their belongings.”              ~Judith Tsui, UW Medicine Clinician

Dr. Tsui also said patients also tell her the streets are flooded with the drug and it’s hard for them to say no. Some patients have requested treatment with prescribed stimulant medications like Adderall and Ritalin to help them stop using methamphetamines.

Please contact my office if you, a friend or family member face criminal charges for illegal possession and/or distribution of unlawful drugs. The Fourth Amendment to the United States Constitution protects individuals against unreasonable searches and seizures by the government. In many cases – including drug cases in particular – the legality of how law enforcement officials obtained the evidence used to support the State’s case is a central and debatable issue. If the government’s conduct violated a person’s rights, the evidence is deemed inadmissible. And without the necessary evidence to prove the criminal charges, the judge may dismiss the State’s case.

Support Legislation Ending Felony Charges for Missing a Court Hearing

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Did you know that a person who misses just one court hearing can be charged with Bail Jumping and be convicted of a new felony simply for missing that court hearing?

Fortunately, legislation proposed by WA Representative Mike Pellicciotti could possibly end this travesty.

THE PROBLEM

When the Legislature enacted the “Bail Jumping” statute, the intent wasn’t to criminalize every missed court date or failure to appear (FTA), rather lawmakers wanted to give the courts a tool to deter people charged with serious crimes from fleeing.

The legislature gave discretion to prosecutors to add a felony charge if someone “jumped bail.” Sadly, this prosecutorial discretion is being overused. The charge of “Bail Jumping” has now led to a long list of unintended consequences that disproportionately harm Washington’s low income and most marginalized citizens.

Research shows that most people charged with “Bail Jumping” were not intentionally avoiding court. Many had difficult life circumstances that made it hard or impossible to attend a court hearing on a particular day. They were not fleeing from the court, and they wanted to resolve their cases.

Research also shows that many people who miss court are experiencing difficulties with transportation, childcare, job disruption, homelessness, health problems, mental illness and other challenges related to poverty. Under current “bail jumping” laws, Washington disproportionally and unjustly allows for longer criminal sentences for people who are low-income or experiencing a crisis for the charge of “Bail Jumping” even though that was never the legislature’s intent.

THE SOLUTION

WA HB 2231 is legislation would would amend the current Bail Jump statute in two ways: (1) it makes bail jumping a misdemeanor, and (2) it requires the state to prove that a person received written notice of the court date that the person missed.

Here is a position paper about the bill. It is supported by the WDA, ACLU, WACDL, the Northwest Community Bail Fund and numerous other organizations.  This bill sponsored is by Mike Pellicciotti of the (Democratic Party). He is a member of the Washington House of Representatives, representing District 30-Position 1.

My opinion? This is great legislation.

Please contact my office if you face felony charges which include Bail Jumping. It is a nasty, unjust felony charge. They are often used by prosecutors to coercively leverage a plea. Although there are substantive defenses to the charge, those who face barriers getting to court are frequently subject to this coercive manner of resolving cases that results in an unjust and disproportionate number of convictions for the most vulnerable.

Sexsomnia

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In State v. Pratt, the WA Court of Appeals held that Sexsomnia is an abnormal activity, similar to sleepwalking, that involves people engaging in sexual acts during sleep.  However, the trial court’s exclusion of expert testimony regarding sexsomnia did not violate the defendant’s Sixth Amendment right to present a defense because no psychological evaluation could determine whether the defendant suffered from sexsomnia at the time of the offense or that the defendant had the disorder.

BACKGROUND FACTS

The State charged Mr. Pratt with child molestation in the first degree based on an allegation by the juvenile victim MB that Pratt had sexually assaulted her while they were both sleeping in a tent for her cousin’s birthday sleepover party. The party occurred at the home of Pratt’s aunt and uncle. MB is the daughter of Pratt’s aunt’s stepsister.

Before trial, Dr. C. Kirk Johnson, a psychologist, evaluated Pratt to determine if he suffered from a sleep disorder called sexsomnia. Sexsomnia is an abnormal activity, similar to sleepwalking, that involves people engaging in sexual acts during sleep. Johnson concluded that a possible explanation for Pratt’s actions included sexsomnia, but he could not confirm it happened.

At a pretrial evidentiary hearing, Pratt indicated he wanted Johnson to testify as an expert at trial about sexsomnia. Although Johnson could not conclude that Pratt had the disorder, he would testify that sexsomnia exists. Pratt wanted to use this testimony to support his general denial defense. Pratt wanted to argue at trial that if a person is asleep, they cannot be guilty because any touching would not have been done for the purpose of sexual gratification. Pratt viewed being asleep as a general denial.

The State moved to exclude the testimony on grounds of relevance. The judge was concerned that calling an expert to testify about sexsomnia could amount to “a back door diminished capacity.” The judge granted the State’s motion to exclude.

Pratt waived a jury. At a bench trial, court found Pratt guilty as charged. Over the State’s and the victim’s objections, the court imposed a SSOSA disposition. The State appealed the sentence. Pratt cross-appealed the exclusion of Dr. Johnson’s testimony.

COURT’S ANALYSIS & CONCLUSIONS

First, the Court of Appeals reasoned that in order to be eligible for a SSOSA sentence, a defendant must have a connection with the victim which is independent of the crime. Here, Pratt was not eligible for a SSOSA sentence because it is clear that Pratt did not have an “established connection” with MB. Other than the sexual molestation, their only connections involved Pratt giving MB a skewer with marshmallows and asking MB her name.

Second, regarding the defense of Sexomnia, the Court of Appeals reasoned that under State v. Utter, Washington courts have recognized a defense of involuntary action due to sleepwalking where, at the time of the crime, the offender was clearly unconscious.

Furthermore, the defense of involuntary action as a result of being asleep, therefore, should not be treated as one of diminished capacity. Instead, involuntariness due to sleep is an affirmative defense that must be proved by the defendant by a preponderance of the evidence.

In this case, however, the Court of Appeals reasoned that Dr. Johnson could not testify that Pratt suffered from sexsomnia either on the night of the sexual molestation or ever.

“The fact that this disorder exists is irrelevant without some tendency to make the existence of sexsomnia of consequence to the determination of the action more probable than it would without the evidence. No nexus existed between Pratt, sexsomnia, and his actions on the night of the molestation.”

Therefore, the Court of Appeals held that the trial court properly excluded Johnson’s testimony because it was irrelevant to both the general denial defense and to a defense of lack of volition. With that, the Court of Appeals affirmed Pratt’s conviction.

Please contact my office if you, a friend or family member are charged with a crime and the defense involves being unconscious due to sleepwalking, and/or experiencing a medical condition called “slow wave sleep.” I’ve successfully obtained dismissal of criminal charges for prior clients who were asleep and/or unconscious during the commission of crimes. Expert testimony might be necessary to educate the jury of a possible Diminished Capacity defense.

Holiday DUI Patrols

According to an article in the Skagit County Herald, law enforcement agencies across the state are participating in emphasis patrols that search for motorists driving under the influence of drugs and alcohol.

Drivers impaired by alcohol, marijuana and other drugs are involved in half of all traffic deaths in Washington, according to the state Traffic Safety Commission. From 2013-17, 1,268 people were killed in such crashes.

“These tragedies are completely preventable,” commission Director Darrin Grondel said in a notice of the emphasis patrols. “As a community, we can end DUI-related deaths. We are asking for help. If you are in the position to prevent someone else from driving impaired, please be bold. Offer to call them a ride or give them a safe place to sober up.”

In a recent commission survey, 81% of respondents said they would try to prevent someone from driving impaired.

The Washington State Patrol has investigated 18 fatal collisions year to date with the majority caused by impaired drivers. The Mobile Impaired Driving Unit (MIDU) will also be deployed in a central location for all law enforcement to use during this emphasis. There will be processors on board along with a phlebotomist for search warrant blood draws if necessary. This will allow for the suspected impaired drivers to be dropped off and allow law enforcement to return to patrol for additional impaired drivers.

The MIDU is a self-contained 36 foot motorhome that has been retrofitted as a mobile DUI processing center and incident command post. The MIDU is equipped with three breath testing instruments, two temporary holding cells, three computer work stations, an incident command computer terminal, a dispatcher console with wireless access to WSP dispatch centers and a microwave downlink tower for real time broadcasts from WSP aircraft. This is a full service police station on wheels.

Body Camera Evidence Admissible

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In State v. Clayton, the WA Court of Appeals held that police body camera evidence does not violate Washington’s Privacy Act because police interactions with a suspect and witnesses or victims of the crime are not private conversations.

BACKGROUND FACTS

The charges arose from a visit by law enforcement to a Spokane home. On the evening in question, multiple officers responded to the residence following a report of shots being fired. Mr. Clayton let officers in the residence and consented to a search. There were six people in the residence in addition to the officers who entered. Three officers had active body cameras recording the investigation, but none of the residents were advised of that fact.

An officer discovered two revolvers in a dresser and also observed bullet holes in a couch, wall, and the floor. Upon learning that Mr. Clayton was ineligible to possess the revolvers, officers arrested him for unlawful possession of the weapons. The prosecutor charged two counts of unlawful possession of a firearm based on the October arrest. Clayton’s girlfriend told officers that one month earlier, Clayton had fired a shot in the apartment that struck the couch on which she was sitting.

Ultimately, the prosecutor charged Clayton with one count of second degree assault and one count of unlawful possession of a firearm for the September incident, as well as two counts of unlawful possession of a firearm for the two weapons recovered in October.

After conducting a CrR 3.6 hearing on a defense motion to suppress the recordings, the court permitted the video evidence only to the point where the officer discovered the guns and arrested Clayton. Body camera footage from one of the officers was played for the jury at trial. The jury acquitted Clayton on the assault charge, but convicted him of all three
unlawful possession charges.

COURT’S ANALYSIS

On appeal, Mr. Clayton argues that the police body camera recording was made in violation of the “Privacy Act,” rendering the evidence inadmissible.

The Court of Appeals  ultimately ruled, however, that because the police interaction with Mr. Clayton and his family was not a private conversation, there was no error.

The Court described how the Privacy Act prohibits recording a private communication unless all parties to the communication consent. Consequently, any information obtained from unknown recordings is inadmissible in court.

More specifically, a communication is private under the act when (1) the parties have a subjective expectation that it is private, and (2) that expectation is objectively reasonable.  Among other things, the subject matter of the calls, the location of the participants, the potential presence of third parties, and the roles of the participants are relevant to whether the call is private.

When it comes to body-worn cameras, law enforcement may record people who have been arrested upon (i) informing the person that a recording is being made, (ii) stating the time of the beginning and ending of the recording in the recording, and (iii) advising the person at the commencement of the recording of his or her constitutional rights. In addition, (iv) the recording may be used only for valid police or court activities. Finally, the person must be told that he or she is being recorded. However, there is no requirement that the individual consent to the recording.

In short, the Court reasoned that conversations with uniformed, on-duty law enforcement officers are typically not private conversations.

“People understand that information they provide to officers conducting an investigation is going to turn up in written police reports and may be reported in court along with the observations made by the officers . . . The conversations took place in his apartment, a place where he had some subjective expectation of privacy, but they also occurred in the presence of five others. The subject matter of the visit—a report of a gun being fired and subsequent search for the weapon—was not a private one.”

Consequently, the trial court did not err in denying the defendant’s motion to suppress and upheld his convictions.

Please contact my office if you, a friend or family member face criminal charges and the evidence involves recordings from police body-worn cameras.