Tag Archives: Mt. Vernon Criminal Defense Attorney

Unlawful Jury Selection

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Sex Crimes, Sixth Amendment, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Getting Rid Of Bad Jurors Through Unconventional Means - Trial Practice Tips

In State v. Guevara Diaz the WA Court of Appeals held that seating a juror without questioning  regarding 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.

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

End ICE Courthouse Arrests

ACLU, Federal Crimes & Prosecutions, Immigration, Immigration & Customs Enforcement (ICE), law enforcement, Legislation, , , , ,

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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 courthouses. California, New 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?

Let’s 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.

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.

Felony Voting Rights Bill Pending in WA Legislature

Bellingham Defense Attorney, felony, Legislation, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Voting Rights, Whatcom County Criminal Defense, , , , ,

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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.

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.

Meth Hurts Opioid Treatment

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Fourth Amendment, Methamphetamine, Mount Vernon Criminal Defense Attorney, Opoids, Skagit County Criminal Defense, Studies, Whatcom County Criminal Defense, , , , ,

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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.

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.

Support Legislation Ending Felony Charges for Missing a Court Hearing

Bail, Bail Jumping, Bellingham Defense Attorney, Criminal Justice, felony, Jail, Legislation, Mount Vernon Criminal Defense Attorney, Prison, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

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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. These charges 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

Bellingham Defense Attorney, Child Molestation, felony, Mount Vernon Criminal Defense Attorney, Sex Crimes, Sexsomnia, Sixth Amendment, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

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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

Bellingham Defense Attorney, Blood Test, Drug Offenses, Drug Recognition Expert, DUI, marijuana, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington State Patrol, Whatcom County Criminal Defense, , , , ,

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.

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

Body Camera Evidence Admissible

Assault, Bellingham Defense Attorney, Body camera, Evidence, Firearm, Mount Vernon Criminal Defense Attorney, police, Privacy, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Washington Privacy Act, Whatcom County Criminal Defense, , , ,

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In State v. Clayton, the WA Court of Appeals held that police body camera evidence is admissible at trial. It 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 read my Search & Seizure Legal Guide titled contact my office if you, a friend or family member face criminal charges and the evidence involves recordings from police body-worn cameras. Hiring an effective and competent defense attorney is the first and best step toward justice.

Unlawful Search Of Electronic Devices at Airports

ACLU, Bellingham Defense Attorney, Federal Crimes & Prosecutions, Mount Vernon Criminal Defense Attorney, Search and Seizure, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

icon of a border agent examining digital devices

Good news. In a major victory for privacy rights at the border, a federal court in Boston ruled that suspicion less searches of travelers’ electronic devices by federal agents at airports and other U.S. ports of entry are unconstitutional.
The ruling came in a lawsuit, Alasaad v. McAleenan, filed by the American Civil Liberties Union (ACLU), Electronic Frontier Foundation (EFF), and ACLU of Massachusetts, on behalf of 11 travelers whose smartphones and laptops were searched without individualized suspicion at U.S. ports of entry.
“This ruling significantly advances Fourth Amendment protections for millions of international travelers who enter the United States every year,” said Esha Bhandari, staff attorney with the ACLU’s Speech, Privacy, and Technology Project. “By putting an end to the government’s ability to conduct suspicionless fishing expeditions, the court reaffirms that the border is not a lawless place and that we don’t lose our privacy rights when we travel.”
“This is a great day for travelers who now can cross the international border without fear that the government will, in the absence of any suspicion, ransack the extraordinarily sensitive information we all carry in our electronic devices,” said Sophia Cope, EFF Senior Staff Attorney.
The district court order puts an end to Customs and Border Control (CBP) and Immigration and Customs Enforcement (ICE) asserted authority to search and seize travelers’ devices for purposes far afield from the enforcement of immigration and customs laws. Border officers must now demonstrate individualized suspicion of illegal contraband before they can search a traveler’s device.
The number of electronic device searches at U.S. ports of entry has increased significantly. Last year, CBP conducted more than 33,000 searches, almost four times the number from just three years prior.
International travelers returning to the United States have reported numerous cases of abusive searches in recent months. While searching through the phone of Zainab Merchant, a plaintiff in the Alasaad case, a border agent knowingly rifled through privileged attorney-client communications. An immigration officer at Boston Logan Airport reportedly searched an incoming Harvard freshman’s cell phone and laptop, reprimanded the student for friends’ social media postings expressing views critical of the U.S. government, and denied the student entry into the country following the search.
Good decision!
Please read my Search and Seizure Legal Guide contact my office if you, a friend or family member face criminal charges because law enforcement officers conducted a questionably unlawful search. Hiring competent counsel is the first and best step toward getting justice.

Inventory Searches, Automatic Standing, & Stolen Vehicles.

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Evidence, Inventory Searches, Methamphetamine, Mount Vernon Criminal Defense Attorney, Possession of Stolen Motor Vehicle, Property Crimes, Search Warrant, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , , ,

Border Patrol agents find meth in car, arrest driver - Baltimore Sun

In State v. Peck, the WA Supreme Court found that persons found in possession of a stolen vehicle may challenge the search of that vehicle.  However, closed containers, other than items that “possess the same aura of privacy as a purse, shaving kit, or personal luggage” and locked containers, may be opened  during an inventory search of a stolen vehicle.  The search, of course, must not be used as a pretext for an investigatory search.

BACKGROUND FACTS

Two Kittitas County sheriffs deputies responded to a suspected theft in progress at a home in rural Ellensburg. When the deputies arrived, they discovered two individuals outside the home, along with a pickup truck stuck in the driveway’s unplowed snow. The deputies handcuffed the two men and eventually learned that they were Mr. Peck and Clark Tellvik. Two more deputies then arrived. One of them entered the pickup truck’s license plate into a law-enforcement database and learned that the truck had been reported stolen.

Officers impounded the vehicle. They searched the pickup without obtaining a search warrant because they believed that Peck and Tellvik did not have a reasonable expectation of privacy in a stolen vehicle. Police discovered methamphetamine and drug paraphernalia inside the vehicle.

Peck and Tellvik were charged with several crimes, including possession of a stolen vehicle and possession of a controlled substance with intent to deliver. The defendants moved to suppress the contraband found in the black zippered nylon case. The trial court denied the motion to suppress, finding the inventory search to be proper and finding no evidence of pretext. A jury subsequently convicted each defendant of the charged drug possession and stolen vehicle offenses. Peck and Tellvik were subsequently convicted. Both appealed their controlled substance convictions. The Court of Appeals reversed the trial court’s denial of the motion to suppress. The WA Supreme Court granted review.

ISSUES

  1. Whether defendants have standing to challenge the scope of a warrantless inventory search of a vehicle when that vehicle is stolen.
  2. Whether a proper inventory search extends to opening an innocuous, unlocked container of unknown ownership found in a stolen vehicle associated with defendants who were apprehended while burglarizing a home.

COURT’S ANALYSIS & CONCLUSIONS

  1. Defendants have standing to challenge the scope of a warrantless inventory search of a vehicle, even when that vehicle is stolen.

First, the WA Supreme Court held the defendants have standing to challenge the search. It reasoned that a defendant has automatic standing to challenge a search if (1) possession is an essential element of the charged offense and (2) the defendant was in possession
of the contraband at the time of the contested search or seizure. And a defendant
has automatic standing to challenge the legality of a seizure even though he or
she could not technically have a privacy interest in such property.

“Peck and Tellvik have automatic standing to challenge the inventory search,” said the Court. It reasoned that the first prong of the test was satisfied because both were charged with possession of a controlled substance with intent to deliver. Furthermore, the second prong is satisfied because Peck and Tellvik were in possession of the truck up until the time of the search. “As such, Peck and Tellvik have automatic standing to
challenge the warrantless inventory search of the black zippered nylon case.”

2. A proper inventory search extends to opening an unlocked container of unknown ownership found in a stolen vehicle.

The WA Supreme Court began by saying that warrantless searches are unreasonable. Despite that rule, a warrantless search is valid if one of the narrow exceptions to the warrant requirement applies. One of those narrow exceptions is a noninvestigatory inventory search. Inventory searches have long been recognized as a practical necessity.

“To be valid, inventory searches must be conducted in good faith and not as a pretext for an investigatory search.”

The court explained that Inventory searches are also limited in both scope and purpose. They are permissible because they (1) protect the vehicle owner’s (or occupants’) property, (2) protect law enforcement agencies/officers and temporary storage bailees from false claims of theft, and (3) protect police officers and the public from potential danger. Unlike a probable cause search and search incident to arrest, officers conducting an inventory search perform an administrative or caretaking function.

The Court reasoned that under these circumstances, it was proper for police to do more than merely inventory the unlocked nylon case as a sealed unit. First, the police knew the vehicle was stolen. Second, Peck and Tellvik were arrested while in the process of burglarizing a home and were observed taking items from the home and its surroundings. Responding officers testified that a purpose in conducting an inventory search of the truck was to determine ownership of both the truck and its various contents. Third, the search was not pretextual. And finally, the innocuous nature of the container at issue is important: a nylon case that looked like it contained CDs does not possess the same aura of privacy as a purse, shaving kit, or personal luggage.

“Here, where the vehicle was stolen, Peck and Tellvik were arrested immediately outside of a home that they were currently  burglarizing, and the trial court explicitly found no evidence of pretext, the search was proper.”

The WA Supreme Court concluded that under the facts of this case, the search was a lawful inventory search. Accordingly, it reversed the Court of Appeals and upheld the denial of the motion to suppress. Justices Gordon McCloud, Madsen, Yu, and Chief Justice Fairhurst dissented.

Please read my Legal Guide titled Search and Seizure and contact my office if you, a friend or family member face criminal charges involving vehicle searches. It is imperative to hire an experienced criminal defense attorney who will defend your rights.