Tag Archives: Mt. Vernon Criminal Defense Attorney

When Victims Are Charged As Accomplices To Crimes

Accomplice, Bellingham Defense Attorney, Domestic Violence, Duress Defense, Mount Vernon Criminal Defense Attorney, Sex Crimes, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Photo courtesy of study.com

What happens when crime victims are prosecuted as accomplices to their abuser’s criminal conduct? A recent Marshall Project investigation found survivors of domestic violence and sexual offenses are particularly vulnerable to prosecution because of the control their abusers hold over them.

THE PROBLEM

Even if a person does not directly commit a crime, they can still be punished for it. That’s because every state in the U.S. – including WA State – has a version of “accomplice liability.” These are laws that allow someone to be punished for assisting or supporting another person who commits a crime. In some cases, accomplice liability is prosecuted on victims even if their participation is under the threat of violence.

In some states, it does not legally matter if a person helped with a crime because they were threatened with death or feared physical violence. As a result, evidence of domestic abuse may not be considered relevant. In other cases, a survivor’s history of abuse may be used to justify their punishment.

THE NUMBERS

A study of 72 women serving life in Michigan prisons found 60% were there for a murder they didn’t commit. Most of those crimes were connected to a man they had a relationship with. In a different survey of people serving time for murder or manslaughter in women’s prisons, 13% of the respondents said they had been convicted for a crime committed with their abuser.

Reviewing court documents, the Marshall Project found nearly 100 cases where prosecutors charged a person (almost always a woman) for supporting, taking part in or failing to stop a crime by their alleged abuser. The cases include a woman who is in prison because her boyfriend severely beat her child, even though she wasn’t home at the time. In another instance, a woman helped her abuser sell stolen goods after a murder because, she said, she was afraid he would kill her.

POSSIBLE SOLUTIONS

Lawmakers and advocates for survivors say there are two ways to tackle the problem. The first would be to limit accomplice liability so fewer people can be charged using those laws. Another approach some states have taken is to rethink how domestic violence victims are sentenced. New York’s Domestic Violence Survivors Justice Act, passed in 2019, allows judges to depart from mandatory minimums when sentencing (or resentencing) survivors. According to the Survivors Justice Project, which works to free victims of domestic violence from prison, 64 people have been resentenced in New York after filing applications.

DEFENSES AT TRIAL

In WA State, Duress is a substantive defense to criminal charges, including accomplice liability. The Duress defense exists if (1) The defendant participated in the crime under compulsion by another who by threat or use of force created an apprehension in the mind of the defendant that in case of refusal the defendant or another person would be liable to immediate death or immediate grievous bodily injury; (2) such apprehension was reasonable upon the part of the defendant; and (3) the defendant would not have participated in the crime except for the duress involved.

Please contact my office if you, a friend or family member are charged as an accomplice to a crime. Duress might be an available defense. Hiring an effective and competent defense attorney is the first and best step toward justice.

Is Today’s Marijuana Too Strong?

Bellingham Defense Attorney, Drug Offenses, DUI, marijuana, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Photo Courtesy of Emily Zaboski/Daily Free Press Staff

Excellent article in the Atlantic by Malcolm Ferguson reports that marijuana users are realizing marijuana has become noticeably stronger. A drug they once turned to for fun and relaxation now triggers existential dread and paranoia.

In 2022, the federal government reported that THC — the psychoactive compound in weed that makes you feel high—had more than tripled compared with 25 years earlier, from 5 to 16 percent. That may understate how strong weed has gotten. Walk into any dispensary in the country, legal or not, and you’ll be hard-pressed to find a single product advertising such a low THC level. Most strains claim to be at least 20 to 30 percent THC by weight; concentrated weed products designed for vaping can be labeled as up to 90 percent.

For the average weed smoker who wants to take a few hits without getting absolutely blitzed, this is frustrating. For some, it can be dangerous. In the past few years, reports have swelled of people, especially teens, experiencing short- and long-term “marijuana-induced psychosis.” The consequences include hospitalizations for chronic vomiting and auditory hallucinations of talking birds. Multiple studies have drawn a link between heavy use of high-potency marijuana, in particular. The development of psychological disorders, including schizophrenia, have increased.

WHY HAS MARIJUANA POTENCY INCREASED SO MUCH?

The simplest explanation for this is that the casual smokers  aren’t the industry’s top customers. Serious stoners are. Regular users tend to develop a high tolerance, and their tastes drive the industry’s cultivation decisions. The industry is not shy about this fact.

My opinion?The history of drug enforcement in America was long one of discriminatory, draconian enforcement. But the shift toward legal weed has tacked too far in the opposite direction. If marijuana is to be sold legally, consumers should know what they’re buying and have confidence that someone is making sure it’s safe.

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

Survey: Cannabis and Hallucinogen Use Remains At Historically High Levels

Bellingham Defense Attorney, Drug Offenses, DUI, marijuana, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Studies, Whatcom County Criminal Defense, , , , ,

weed-as-a-hallucinogent

Excellent article by CNN reporter Carma Hassan, says the use of cannabis and hallucinogens stayed at historically high levels among both younger and middle-age adults in the US in 2023. The data was released from a survey from Monitoring the Future, a study conducted by researchers at the University of Michigan since 1975 and funded by the National Institutes of Health.

THE NUMBERS

The survey showed that about 2 in 5 adults (42%) ages 19 to 30 reported using cannabis in the previous year. Nearly 10% of that group saying they used cannabis nearly every day. And for the first time, more women ages 19 to 30 reported cannabis use than men in the same age group. However, there was a higher prevalence of men using cannabis than women in the older age group. About 29% of midlife adults — people ages 35 to 50 — reported using cannabis at least once in the past year. Nearly 8% reporting using cannabis on a daily basis.

 “On average, a certain number of people in any group that’s a sizable portion are using marijuana on a daily or near-daily basis. And I think that bears watching, and those levels are at a historical high. Although they didn’t increase this year compared to the previous year, they’re still at quite high levels.” ~Dr. Wilson Compton, deputy director of the NIH’s National Institute on Drug Abuse.

CANNABIS VAPING

Cannabis vaping rose slightly among younger adults. Nearly 1 in 5 adults in that age group say they used it at least once in the past year. For midlife adults, about 9% of people in that group admitted vaping cannabis in the past year. Nicotine vaping also stayed high among both groups of adults, according to the report.

HALLUCINOGENS

The study discussed the use of hallucinogens – such as LSD, mescaline, peyote, PC and shrooms or psilocybin. In short, use of these drugs hovered around the same as in 2022, They landed at 9% for adults 19 to 30 (versus 8% the previous year) and 4% for adults 35 to 50 in 2023 and 2022.

“We have seen that people at different stages of adulthood are trending toward use of drugs like cannabis and psychedelics and away from tobacco cigarettes . . . These findings underscore the urgent need for rigorous research on the potential risks and benefits of cannabis and hallucinogens – especially as new products continue to emerge.” ~Dr. Nora Volkow, director of the National Institute on Drug Abuse.

ALCOHOL

The most-used substance among adults is still alcohol. Here, more than 4 in 5 younger adults (84%) reporting drinking in the past year. However, frequent drinking – either monthly, daily or binge drinking – all decreased in 2023 from the decade prior among 19- to 30-year-olds.

CIGARETTES, OPIOIDS & PRESCRIPTION DRUGS

The researchers also noted other decreases in drug use, reflecting a shift in habits. Cigarette smoking and use of opioid medications and prescription drugs for nonmedical reasons “maintained five- and 10-year declines” for both age groups.

n 2023, drug overdose deaths decreased for the first time since 2018, according to preliminary data from the US Centers for Disease Control and Prevention’s National Center for Health Statistics. About 107,500 people died from a drug overdose in 2023, the data showed, driven by fentanyl and synthetic opioids.

While only slight changes were observed compared with the previous year’s Monitoring the Future survey results, the researchers say the results still help inform the bigger picture — especially as the survey respondents age.

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

Expert Witness’s Misleading Statements at DUI Trial Were “Harmless Error.”

Bellingham Defense Attorney, DUI, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Uncategorized, , , , ,

Harmless Error Rule | Legal Terms

In State v. Wasuge, No. 85286-8-I (August 12, 2024)., the WA Court of Appeals (COA) held the trial court mistakenly admitted expert testimony in a DUI case that the general population metabolizes alcohol at a rate of .01 to .02 percent per hour. Also, the trial court erred when it admitted expert testimony that the American Medical Association (AMA) recommends that state legislatures lower the “per se” blood alcohol concentration (BAC) limit for driving under the influence (DUI) offenses from .08 to .05 percent. Despite the trial court’s errors, the COA nevertheless upheld Mr. Wasuge’s convictions because the errors were harmless.

FACTUAL BACKGROUND

On the morning of October 12, 2022, a 911 caller reported that a vehicle had abruptly stopped in the center of a residential road. Upon arriving at the scene at approximately 6:45 a.m., King County Sheriff’s Office Deputies saw a stationary vehicle in the southbound lane of the road with its headlights and taillights illuminated. The officers noticed the vehicle’s engine was running, the keys were in the ignition, and the transmission was in drive. The officers also observed Mr. Wasuge sitting in the reclined driver’s seat asleep with his feet resting on the floorboard.

The officers decided to “box the vehicle in” by parking their vehicles in front of and behind Wasuge’s vehicle. A deputy then knocked on the front driver’s side window and announced himself as a law enforcement officer. When Wasuge awoke, he looked at an officer and began rolling down the back driver’s side window before rolling down the front driver’s side window. A police officer immediately smelled “an odor of alcoholic beverages coming from the vehicle” and ordered Wasuge to put the gearshift in park and exit the vehicle, which he did.

When police asked Wasuge “why he was asleep in the middle of the roadway,” Wasuge said he was waiting for a friend and pointed at different houses in multiple directions. The officer suspected that Wasuge had been drinking alcohol because his breath smelled of alcohol; his speech was slurred; his eyes were bloodshot, glassy, and watery. Wasuge was also unbalanced when walking and standing; and he generally appeared “dazed and confused.” Police asked Wasuge if he had been drinking, which Wasuge denied. After Wasuge performed poorly on the field sobriety tests, he placed him under arrest for DUI. Farley then transported Wasuge to a hospital where a nurse drew his blood. Later testing of this blood determined that Wasuge’s BAC was .076 percent.

Mr. Wasuge was charged with DUI, Operating a Vehicle Without an Ignition Interlock Device, and Driving While License Revoked.

At trial, the jury convicted Wasuge of counts 2 and 3 as charged, but it did not reach a unanimous verdict on count 1. Instead, the jury convicted Wasuge of the lesser included offense of being in Actual Physical Control of a Motor Vehicle While Under the influence.

COURT’S ANALYSIS & CONCLUSIONS

Regarding the Expert Witness Testimony issue, the trial court abused its discretion in admitting the contested portions of Dougher’s testimony. Because the expert’s testimony about hypothetical per se BAC limit was not relevant to any issue in the trial, the trial court abused its discretion by admitting it.

“The State’s reliance on inadmissible testimony in this case is especially concerning, as it appears to be strategic. The State, as noted previously, did not seek to convict Wasuge under the “per se” prong of RCW 46.61.502(1)(a) or RCW 46.61.504(1)(a). Nor did it present a retrograde extrapolation, which might have been used to show that Wasuge’s BAC was .08 percent or higher while he was driving or in actual physical control of the motor vehicle.” ~WA Court of Appeals

Nevertheless, the COA found the errors harmless in light of the overwhelming evidence that Mr. Wasuge drove under the influence.

“These evidentiary errors would warrant reversal if this were a close case. But it is not. Under the nonconstitutional harmless error standard applicable to evidentiary errors, Wasuge is not entitled to a new trial unless he shows that within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected.” ~WA Court of Appeals

Here, police found Wasuge asleep behind the wheel of a vehicle sitting in the lane of travel with the engine idling and the gearshift in drive. Wasuge smelled of intoxicants. His speech was slurred, and his eyes were glassy, bloodshot, and watery. Wasuge performed poorly on the field sobriety tests. Lastly, Wasuge admitted to drinking multiple beers before driving the vehicle, and he had a BAC of .076 percent about two hours after he was first discovered behind the wheel of his vehicle.

“Because Wasuge has not shown that within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected, he is not entitled to a new trial on this basis,” said the COA. With that, the COA upheld Mr. Wasuge’s convictions.

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

Kratom: “Gas-Station Heroin” Known For Its Opioid and Stimulant-Like Effects

Bellingham Defense Attorney, Drug Offenses, DUI, Kratom, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

So-called 'gas station heroin' is easy to find, potentially dangerous to use

Journalist Marquise Francis wrote an excellent article in NBC News discussing Kratom, an herb with opioid and stimulant-like effects. Kratom is sold legally and widely at vape shops, gas stations and convenience stores in liquid, tablet or powder form. It is sometimes referred to as “gas station heroin.” The American Kratom Association, which advocates for consumer access to the substance, says it’s a roughly $1.5 billion-per-year industry.

Kratom contains a chemical compound called mitragynine, which stimulates the same brain receptors as opioids. That is partially why it can become addictive, according to experts. At high concentrations, the substance can cause nausea, seizures, vomiting, difficulty breathing and, in the most extreme cases, death.

Kratom is not regulated as a controlled substance. However, the Drug Enforcement Administration lists it as a “drug of concern.” The FDA has not approved kratom for any purpose, but supplements do not require the agency’s sign-off to be sold.

OVERDOSE DEATHS

Kratom was the cause of 91 overdose deaths from July 2016 to December 2017, according to a report from the Centers for Disease Control and Prevention. But some estimates put the toll far higher: An analysis by The Washington Post found kratom listed as the leading or partial cause of death in at least 4,100 deaths from 2020 to 2022, and an investigation by the Tampa Bay Times last year found that more than 580 people in Florida alone had died from kratom-related overdoses since 2013.

The DEA sought to temporarily reclassify kratom as a schedule 1 substance in 2016, but reversed course following a backlash. So in lieu of federal oversight, a growing number of states and cities have been cracking down on kratom on their own. at least six states — Alabama, Arkansas, Indiana, Rhode Island, Vermont and Wisconsin — have banned kratom entirely.

AN EMERGING ISSUE

In a letter published Monday in the journal Annals of Internal Medicine, a group of researchers called kratom an “emerging issue” and suggested that physicians consider asking patients about their kratom use, the same way they do about cannabis, cocaine, methamphetamines or heroin. The paper suggests that as of 2022, roughly 1.9 million people in the U.S. had used kratom, though the authors suggest that’s an underestimate.

FOUR GROUPS OF KRATOM USERS

Kratom users are classified into four primary groups. The first is people with opioid use disorder who buy kratom either to tide them over until they can get more opiates or as an attempt to wean themselves off even harder stuff. The second is people who say kratom helps them with pain management. The third are users with anxiety, depression or some other mood disorder. The fourth and final group are those who simply enjoy the stimulant effects.

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

Invoking The Right To An Attorney During Police Interrogations

Bellingham Defense Attorney, Fifth Amendment, Homicide & Manslaughter, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

What does a police interrogation/interview room usually look like? - Quora

In State v. Wilson, the WA Court of Appeals held that a Defendant invokes his right to an attorney when he says, “So, I’m going to have to ask for legal representation, not out of resistance or— or—anything,” when interviewed by police.

FACTUAL BACKGROUND

Mr. Wilson was investigated for the shooting death of his ex-wife. He was transported to the police station for an interview. The interrogation was video-recorded. During the interview, the following exchange took place:

DETECTIVE: “Yeah. Do you want me to call you Mr. Wilson or Wendell?”

MR. WILSON: “Whichever you’re comfortable with.”

DETECTIVE: “Okay. Okay. Go ahead.”

MR. WILSON: “Um . . . I know I can’t afford a lawyer.”

DETECTIVE EDWARDS: “Okay.”

MR. WILSON: “So I’m going to have to ask for legal representation, not out of resistance or—or—anything . . .”

DETECTIVE EDWARDS: “Mm-hmm.”

The interview proceeded. During the interview, Mr. Wilson described the argument that concerned installing a baby gate in the kitchen, which eventually escalated with Mrs. Wilson threatening to move out. The argument took place throughout the apartment, and the two were in the master bedroom before Mr. Wilson retrieved the gun from the adjacent bedroom. Mr. Wilson stated the gun was in a closet up on a shelf in a gun case.

Mr. Wilson stated he came out of the adjacent bedroom at the same time Mrs. Wilson came out of the master bedroom. The two stood about a foot apart. When asked if he intended to shoot Mrs. Wilson when they met, Wilson said, “I said yes earlier and . . . no,” but did say he intended to hurt her, though he further stated he intended to “more scare her.”

When asked what was his intention for using the gun, Mr. Wilson stated, “It comes down to the dominance thing.” Wilson explained it showed “who’s got the power.” He agreed with the Detective that Wilson’s use of the gun showed Mrs. Wilson that he had the last word. When Mr. Wilson shot Mrs. Wilson, she was well into the room because she started backing up, looked scared, and put her hands up in a defensive position. Mr. Wilson said when he went to get the gun, it was out of “rage,” and fear never crossed his mind.

The State charged Mr. Wilson with first degree murder. In a pretrial CrR 3.5 hearing, Wilson argued his statements “I know I can’t afford a lawyer” and “I’m going to have to ask for legal representation” were an unequivocal invocation of his right to counsel. However, the trial court ruled Wilson did not unequivocally invoke his right to counsel and the interview statements were admissible.

The State played the interview at trial. The jury convicted Wilson of first degree murder. 

COURT’S ANALYSIS & CONCLUSIONS

“Whether a criminal case unequivocally invoked Miranda rights is a mixed question of law and fact,” said the Court of Appeals (COA). “The question is whether, as a matter of law, it was reasonable for the detectives to conclude that the right to counsel was not invoked.”

The COA reasoned that before any custodial interrogation, a suspect must be informed that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning.’ (quoting Miranda) Once warnings have been given, the subsequent procedure is clear. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.

However, the suspect must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for counsel. If the suspect’s statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him.

The COA engaged compared  numerous prior rulings leading cases: State v. Whitaker (cited by the State) and State v. Pierce (cited by the defense).

“The point of the objective standard for invoking Miranda rights is to give law enforcement a bright line rule that can be applied without requiring questioning to cease merely if a suspect makes a statement that might be a request for an attorney. It is not enough to surmise from background circumstances that a suspect probably would want counsel, and by the same token surmise from circumstances that a suspect probably would not want counsel cannot defeat a clear statement that ‘I’m going to have to ask for legal representation.’ Having reviewed de novo Wilson’s statements, their context, and the video and audio recording of the interview, we conclude Wilson unequivocally invoked his right to counsel. The admission of the interview at trial was error.” ~WA Court of Appeals

The COA therefore reversed Mr. Wilson’s judgment of conviction. It also held that in the event of retrial, the interview with the detective must be excluded as substantive evidence under Miranda.

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

Is Chewing Tobacco a “Foreign Substance” That Affects DUI Breath Tests?

Bellingham Defense Attorney, DUI, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Vehicular Homicide, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Jake Peavy chews tobacco

Red Sox pitcher Jake Peavy chews tobacco during a match. Credit: Getty Images

The answer? It depends how much chewing tobacco we’re talking about . . .

In State v. Sliger, the WA Court of Appeals held that a “foreign substance,” as used for the purposes of breath testing, is a foreign substance in an amount that can affect the accuracy of breath test results.  Therefore, small strands of tobacco left in the mouth of the test subject, after he removed the main wad of tobacco, did not invalidate the breath results.

FACTUAL BACKGROUND

Mr. Sliger was charged with Vehicular Homicide. At the scene of the accident, Sliger removed a lump of chewing tobacco from his mouth. Prior to taking a breath test, when asked if he had any foreign substances in his mouth, he answered no. After checking his mouth, the officer noted strands of tobacco in his teeth that were not removed prior to taking the test.

Sliger filed a pretrial motion to suppress the breath test results. For a breath test to be admissible under RCW 46.61.506(4)(a)(iii), the State must produce prima facie evidence that the subject did not have any foreign substances in their mouth at the beginning of the observation period. This burden can be met with evidence that either the subject denied having anything in their mouth or evidence that a check of the mouth revealed no foreign substances.

Here, the trial court found that tobacco was a foreign substance, that Sliger removed the tobacco from his mouth before taking the test, but did not remove the strands of tobacco between his teeth. Based on Sliger’s denial of a foreign substance, the trial court concluded that the State met its burden of producing prima facie evidence that Sliger did not have a foreign substance in his mouth at the beginning of the observation period.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals (COA) stated the admissibility of a breath test is governed by case law, statute, and regulations. Specifically, RCW 46.61.506(4)(a) requires the State to produce prima facie evidence of certain facts before a test can be admitted as evidence. One of the facts is evidence that the person being tested “did not have any foreign substances, not to include dental work or piercings, fixed or removable, in his or her mouth at the beginning of the fifteen minute observation period.” RCW 46.61.506(4)(a)(iii).

“A ‘foreign substance’ is defined as a substance that ‘adversely affects the accuracy of test results.’ This definition leaves room for a substance such as tobacco to be considered a foreign substance based on the amount of the substance present. In other words, tobacco only becomes a foreign substance when it is present in an amount sufficient to adversely affect the test.”

“Reading the statute otherwise would lead to absurd results. If we were to hold that the presence of any amount of a substance that is foreign to the mouth renders a test inadmissible, then in theory the microscopic presence of any such substance would impact admissibility. Such a result is not required by the regulations or the statute.” ~WA Court of Appeals

With that, the COA affirmed the trial court’s denial of Mr. Sliger’s Motion to Suppress. Here, Sliger denied having any foreign substances in his mouth. And when the officer checked, he did not see any foreign substances. He did see strands of tobacco but did not consider them to be a foreign substance.

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

Enforce the U.S. Supreme Court’s Judicial Ethics Code

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, United States Supreme Court, Whatcom County Criminal Defense, , , , ,

Ethics for Justice: How boosting judicial ethics helps tackle corruption amongst judiciaries

Last week, Justice Elena Kagan proposed the Supreme Court’s newly-adopted a code of conduct should have an enforcement mechanism. She proposed that the justices shouldn’t do it amongst themselves but that lower federal court judges would probably be the best choice. Kagan suggested that in the alternative the Court could appoint an outside panel of highly respected, experienced judges to review allegations of wrongdoing by the justices.

“Rules usually have enforcement mechanisms attached to them, and this one, this set of rules, does not . . . However hard it is, we could and should try to figure out some mechanism for doing this.” ~U.S. Supreme Court Justice Kagan

Her recommendation comes as accusations of financial improprieties, undisclosed relationships, and conflicts of interest have cast a shadow over the court’s integrity. These controversies have sparked intense public debate and increased calls for rigorous oversight and ethical reforms.

Public confidence in the Supreme Court has been lower over the past 16 years than it was before. Between 1973 and 2006, an average of 47% of U.S. adults were confident in the court. During this 33-year period, no fewer than four in 10 Americans expressed high confidence in the court in any survey, apart from a 39% reading in October 1991 taken during the Clarence Thomas confirmation hearings.

How that arrangement would work and what penalties would be available are still open questions. And Kagan is just one voice among nine justices. Some would likely disagree, including justices at the center of recent controversies: Republican appointees Clarence Thomas and Samuel Alito.

But just like it’s important for President Joe Biden to press court reforms even if they won’t come soon. It’s important for Kagan to inform the public of her preference for accountability, even if her ideas don’t catch on with all the other justices. One of the reforms that Biden reportedly supports is an enforceable code. Unfortunately, that’s something that likely wouldn’t pass a Republican-controlled House and that the Republican-majority court might strike down as unconstitutional, anyway.

The court’s composition raises a larger issue in need of reform — whether by term limits, expanding the number of justices or both — something that was also evident from Kagan’s public appearance Thursday. She highlighted the importance of respecting precedent, in the wake of yet another term in which the majority overturned a big one, this time Chevron deference. That decision led to Kagan’s dissent in which she wrote that “a longstanding precedent at the crux of administrative governance thus falls victim to a bald assertion of judicial authority. The majority disdains restraint, and grasps for power.”

Even for something simple, like ethics rules with consequences for violating them, it’s clear that the court will cling to power as long as it can, both in its rulings and operations.

The Supreme Court is likely to issue one of its most consequential rulings at a time when public confidence in the institution has never been lower.

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

State v. Allah: Probationer’s Right Against Unlawful Search

Bellingham Defense Attorney, Constitutional Rights, Firearm, Mount Vernon Criminal Defense Attorney, Probation, Search and Seizure, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , , ,

In State v. Allah, the WA Court of Appeals held a probationer’s vehicle was unlawfully searched and seized during a traffic stop. His prior criminal history, gang affiliations and geographic boundary  restrictions did not establish a sufficient nexus for a warrantless search.

FACTUAL BACKGROUND

In October 2020, Mr. Allah was on probation for a 2017 firearm conviction. He was driving his car in the Central District of Seattle, when a police officer pulled him over on suspicion of driving with a suspended license. After learning of Allah’s probationary status, the officer contacted the Department of Corrections (DOC). The Officer requested a Community Corrections Officer (CCO) arrive at the scene to discuss next steps.

While he was on his way to the scene, the CCO reviewed Allah’s prior conditions of community custody. The CCO noted Allah was in violation of a geographic boundary condition, which excluded him from the Central District. The geographic restriction  was in place because Allah was in a gang associated with the Central District.

Upon arriving at the scene, the CCO talked with Allah and then searched the car, specifically for a firearm. The CCO located a firearm on the floorboard underneath the driver’s seat. He collected the firearm as evidence and arrested Allah.

The State charged Allah with a Firearm Offense because his prior convictions barred him from possessing firearms. Allah moved to suppress the firearm evidence from the CCO’s search under a CrR 3.6 Motion. Allah argued there was an insufficient nexus between the search and Allah’s geographic violation. The judge denied Allah’s 3.6 Motion.

In December 2022, a jury convicted Allah as charged.  Allah appealed.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals (COA) established that the Washington Constitution provides a robust privacy right; stating that “no person shall be disturbed in his private affairs, or his home invaded, without authority of law.” That said, warrantless seizures are per se unreasonable and subject to limited exceptions. The State has the burden of proving a warrantless search falls within an exception.

THE COA further established that parolees and probationers have diminished privacy rights. This is because they are persons whom a court has sentenced to confinement but who are serving their time outside the prison walls. As such, a probationer may be searched on the basis of a wellfounded or reasonable suspicion of a probation violation rather than a warrant supported by probable cause.

Even with probationer’s diminished privacy rights, however, the Washington Constitution permits a warrantless search of the property of an individual on probation only where there is a nexus between the property searched and the alleged probation violation.

“Permitting searches without a nexus would allow fishing expeditions to discover evidence of other crimes, past or present. After all, if a prior conviction, not to mention a prior arrest, should afford grounds for believing that an individual is engaging in criminal activity at any given time thereafter, that person would never be free of harassment, no matter how completely he had reformed.” ~WA Court of Appeals

The COA’s Rationale On “Sufficient Nexus”

The COA further surmised that even when there is a nexus between the property searched and the suspected probation violation, an individual’s reduced privacy interest is safeguarded in two ways. First, a CCO must have reasonable cause to believe’ a probation violation has occurred before conducting a search at the expense of the individual’s privacy. Second, the individual’s privacy interest is diminished only to the extent necessary for the State to monitor compliance with the particular probation condition that gave rise to the search. The individual’s other property, which has no nexus to the suspected violation, remains free from search.

In sum, neither CCO or the State provide a sufficient explanation of why any person would reasonably believe Allah may have had a weapon immediately preceding the search. No matter how the constitutionality of the search is conceptualized—i.e., whether as requiring a nexus between the boundary violation and the vehicle searched, or as simply requiring reasonable suspicion—the logical gap remains.

As to the geographic boundary, CCO admitted it was irrelevant to his decision to search. As to Allah’s prior firearm conviction, our Supreme Court has long explained that a probationer’s past convictions alone are not enough to support a search. Otherwise, a probationer “would never be free of harassment, no matter how completely he had reformed.”

With that, the COA reversed the lower court’s denial of Allah’s CrR 3.6 motion to suppress the firearm evidence. The COA also reversed Allah’s conviction, and remanded the matter to the lower court for future proceedings.

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

State v. Ortega: Court Upholds Forensic Search of Defendant’s Cell Phone Using “Cellebrite Touch” Software

Bellingham Defense Attorney, Cell Phone, Mount Vernon Criminal Defense Attorney, Search and Seizure, Sex Crimes, Skagit County Criminal Defense, Technology, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Supreme Court cell phone ruling doesn't affect local law enforcement

In State v. Ortega, the WA Court of Appeals held that police officers executing a search warrant for an electronic device are not exceeding the scope of the warrant by manually searching through all the images on a device to find and seize images depicting specific content.

FACTUAL BACKGROUND

Mr. Ortega was investigated for sex offenses against his girlfriend’s children. Police believed Mr. Ortega’s cell phone probably contained evidence of the crimes with which he was charged. They obtained possession of the cell phone from a family member, who voluntarily turned it over to police. The court granted the police’s request for a search warrant. Pursuant to the warrant, police searched the phone and seized 35 images, many of which were incriminating.

Mr. Ortega moved to suppress the fruits of the cell phone search. He argued that the warrant was insufficiently particular, in violation of the state and federal constitutions. At his suppression hearing, officers testified they began the search by connecting Mr. Ortega’s phone to an extraction device known as the “Cellebrite Touch.”  They ran an extraction that allowed the files on Mr. Ortega’s phone to be organized into categories (for example, messages, images, etc.). Once extracted, data is not visible unless someone opens the individual category folders through Cellebrite’s physical analyzer program.

After the data extraction, police produced a thumb drive containing more than 5,000 extracted images. One officer testified it was similar to being given a physical photo album and having to flip through the pages to find what you are looking for.

The trial court denied Mr. Ortega’s motion to suppress the images seized from his cell phone. Mr. Ortega subsequently waived his right to a jury trial and his case was tried to the bench. The court found Mr. Ortega guilty as charged. Mr. Ortega timely appealed on arguments that the State’s case was tainted by evidence seized during an unconstitutional cell phone search.

COURT’S ANALYSIS & CONCLUSIONS

1. The Search Warrant Passed the “Particularity Requirement.”

The Court of Appeals (COA) began by explaining that both the Fourth Amendment and the Washington Constitution require that a search warrant describe with particularity the place to be searched and the persons or things to be seized. The particularity requirement, which aims to prevent generalized rummaging through a suspect’s private affairs, is of heightened importance in the cell phone context. This is because of the vast amount of sensitive data contained on the average user’s smartphone device. The purposes of the particularity requirement are to prevent a general search, limit the discretion of executing officers, and ensure that items to be searched or seized are supported by probable cause, said the COA.

Consequently, the COA reasoned the warrant satisfied the particularity requirement. It directed officers to search the phone and seize images and/or videos depicting Mr. Ortega engaged in sexual contact with minors.

“This did not permit a general rummaging; it was akin to a warrant allowing a search of a residence for controlled substances and indicia of ownership.” ~WA Court of Appeals

2. Officers Did Not Exceed the Scope of the Warrant.

The COA discussed the scope of a search can be limited by identifying targeted content. When a warrant authorizes a search for a particular item, the scope of the search “generally extends to the entire area in which the object of the search may be found.

The COA reasoned that police properly limited the scope of their search to the terms of the warrant. The incriminating images could have been located almost anywhere on Mr. Ortega’s cell phone—not only in a photos application, but also in e-mails and text messages.

Furthermore, had the detectives chosen to search Mr. Ortega’s phone manually, they likely would have needed to sort through data other than images in order to find the targets of their search. And they would have risked jeopardizing the evidentiary integrity of the phone. By instead using forensic software, the detectives were able to organize the data from Mr. Ortega’s phone without first viewing the phone’s contents. This enabled them to limit their search to data labeled as photos and videos, thus restricting the scope of the search to areas where the target of the search could be found.

“By using forensic software to extract and organize data from Mr. Ortega’s phone, the detectives were able to minimize their review of the phone contents and tailor their search to the evidence authorized by the warrant. This did not violate Mr. Ortega’s constitutional rights.” ~WA Court of Appeals

With that, the COA denied Mr. Ortega’s appeal and upheld his convictions.

Please review my Search & Seizure Legal Guide and 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.