Tag Archives: Mt. Vernon Criminal Defense

Violent Crime Decreased – Except Rape

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Rape, Sex Crimes, Skagit County Criminal Defense, Studies, Whatcom County Criminal Defense, , , , ,

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Excellent article by Jamiles Lartey and Weihua Li of the Marshall Project describes new evidence showing that despite the fact that violent crime decreased, rape rises for the sixth straight year.

The 2018 National Crime Victimization Survey (NCVS), released Tuesday, is managed by the Bureau of Justice Statistics at the U.S. Justice Department. According to the authors, the data suggests that the violent crime rate in the U.S. remains on a decades-long downward trend, falling by 3.9 percent in 2018. Overall, the violent crime rate has plunged by more than 50 percent since the early 1990s.

The drops came across categories of violent offenses, including murder, non-negligent manslaughter and robbery, and property crimes like burglary, larceny and vehicle thefts, while aggravated assault numbers remained about flat.

However, rape and sexual assault crimes are increased slightly for 2018. This follows consistent trends that sexual assault crimes have risen for the last six years.

So why the increase?

Apparently, in 2013, the FBI changed its outdated parameters of rape—then defined as the forcible “carnal knowledge of a female”—to a more modern definition structured around consent, rather than force. Ever since, the rate has been on a steady surge, up more than 18 percent in that period.

“It’s not yet clear why rapes have risen so swiftly. It’s a notoriously underreported crime and many have theorized that the changing social atmosphere, including the #metoo movement and increased awareness around campus rape, may be prompting survivors to report at a higher rate.”

Kristen Houser, a spokesperson for the National Sexual Violence Resource Center, said another possible outcome of that social and cultural change is assault survivors being better able to simply understand that what they’ve experienced was in fact a crime.

“We may well have more ability to recognize experiences for the crimes that they are and be able to name them, which I don’t think has been true historically. And that’s a result of more people talking about it, reporting on it, reading it, etc.,” Houser said.

Please vontact my office if you, a friend or family member are charged with a sex offense. These charges are debilitating. Simply being charged negatively impacts reputations, employment opportunities and freedom. Therefore, it’s imperative to hire an experienced and effective defense attorney who will conduct proactive investigations, argue pretrial motions and defend your rights at trial.

WA Supreme Court Invalidates “Community Caretaking” Search

Bellingham Defense Attorney, Community Caretaking, Constitutional Rights, felony, Fourth Amendment, Homicide & Manslaughter, law enforcement, Mount Vernon Criminal Defense Attorney, Search and Seizure, Skagit County Criminal Defense, Violent Crime, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

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In State v. Boisselle, the WA Supreme Court held a police officer’s warrantless entry into the defendant’s duplex in this case violated article I, section 7 of the WA Constitution because their emergency aid function search was a unlawful pretext for a criminal investigation as the officers were suspicious, if not convinced, that a crime had taken place before entering the unit.

BACKGROUND FACTS

Law enforcement officers were dispatched to Mr. Boisselle’s home after two anonymous 911 calls reported that a man shot and possibly killed someone at the residence. While responding to the calls, the officers learned that the residence was related to an ongoing missing person/homicide investigation. Unable to determine whether someone was alive inside the home, the officers entered the residence and conducted a warrantless search, discovering evidence of a murder therein. Boisselle  was arrested and jailed.

Boisselle moved to suppress the evidence, arguing that the officers’ warrantless search was unlawfully pretextual  under article I, section 7 of the Washington Constitution. The trial court denied Boisselle’s motion, concluding that the officers’ search fell within the emergency aid function of the community caretaking exception to the warrant requirement. Following a jury trial, Boisselle was convicted of second degree murder and second degree unlawful possession of a firearm. The Court of Appeals affirmed his convictions.

COURT’S ANALYSIS & CONCLUSIONS

I. The Community Caretaking Exception

First, the WA Supreme Court agreed that the application of the community caretaking exception has become muddled, and took this opportunity to clarify the appropriate factors in determining whether an officer has exercised his or her emergency aid community caretaking function.

“The community caretaking exception is one such exception to the warrant requirement,” said the Court. “Under the community caretaking exception, law enforcement officers may make a limited invasion of constitutionally protected privacy rights when it is necessary for officers to perform their community caretaking functions.” The Court explained this exception recognizes that law enforcement officers are “jacks of all trades” and frequently engage in community caretaking functions that are unrelated to the detection and investigation of crime, including delivering emergency messages, giving directions, searching for lost children, assisting stranded motorists, and rendering first aid.

Next, the Court created the following multi-part test for evaluating whether an officer exercised his or her community caretaking function when conducting a warrantless search:

(1) Was the community caretaking exception used as a pretext for criminal investigation? If the court finds pretext, the analysis ends. If the court determines that the exception was not a pretext, the analysis continues is question is answered negatively, the analysis continues.

(2)(a) If the search fell within an officer’s general community caretaking function, such as the performance of a routine check on health or safety, the court must determine whether the search was “reasonable.” “Reasonableness” depends upon a balancing of a citizen’s privacy interest in freedom from police intrusion against the public’s interest in having police perform a community caretaking function.

(2)(b) If the search fell within an officer’s emergency aid function which arises from a police officer’s community caretaking responsibility to come to the aid of persons believed to be in danger of death or physical harm, the court, before determining whether the search is “reasonable,” must first determine whether: “(1) the officer subjectively believed that an emergency existed requiring that he or she provide immediate assistance to protect or preserve life or property, or to prevent serious injury, (2) a reasonable person in the same situation would similarly believe that there was a need for assistance, and (3) there was a reasonable basis to associate the need for assistance with the place searched.”

II. The Warrantless Search of Boisselle’s Home Was Pretextual.

The Court reasoned that an unlawful pretextual search occurs when occurs when officers rely on some legal authorization as a mere pretense to dispense with a warrant when the true reason for the seizure is not exempt from the warrant requirement. When determining whether a given search is pretextual, the court should consider the totality of the circumstances, including both the subjective intent of the officer as well as the objective reasonableness of the officer’s behavior.

“Viewing the totality of the circumstances, we are unconvinced that the officers’ search of Boisselle’s home was not a pretext for a criminal investigation.”

The Court reasoned that here, law enforcement’s involvement began because of two anonymous 911 calls reporting a crime. When the officers arrived at Boisselle’s duplex unit, they noticed a smell that could be attributed to a decomposing body, and they sought to confirm whether a crime had been committed or if a crime victim was inside. The officers were eventually able to see into the unit and saw signs of a struggle and missing carpet, which could be a sign that someone sought to cover up a crime scene.

“Taken together, these facts demonstrate that the officers were suspicious, if not convinced, that a crime had taken place,” said the Court. “Because of the officers significant suspicions, the search of Boisselle’s home was necessarily associated with the detection and investigation of criminal activity.”

Accordingly, the Court held the officers’ warrantless search did not fall under the emergency aid function of the community caretaking exception, and it violated article I, section 7 of the WA Constitution. Thus, the trial court erred in denying Boisselle’s motion to suppress. “We reverse the Court of Appeals and remand to the trial court for further proceedings,” said the Court.

My opinion? Grisly as the facts appear to be, the Court reached the right decision. Freedom from government intrusion lies at the very foundation of Western law and culture, and is one of our nation’s most cherished freedoms. That’s why we insist on police obtaining warrants, unless exigent circumstances dictates otherwise.

Please read my Search and Seizure Legal Guide and contact my office if you, a friend or family member were charges with a crime involving an unlawful pretextual search. Hiring competent defense counsel is the first and best step toward achieving justice.

Flowers v. Mississippi: Supreme Court Finds Race-Based Peremptory Strikes Unlawful

Bellingham Defense Attorney, Constitutional Rights, Criminal Justice, felony, Homicide & Manslaughter, Jury Selection, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, United States Supreme Court, Whatcom County Criminal Defense, , , , , ,

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In Flowers v. Mississippi, the U.S. Supreme Court held that the State’s peremptory strikes in the defendant’s first four trials strongly supported the conclusion that the State’s use of peremptory strikes in the defendant’s sixth trial was motivated in substantial part by discriminatory intent.

BACKGROUND FACTS

Curtis Flowers was tried six separate times for the murder of four employees of a Mississippi furniture store. Flowers is black. Three of the four victims were white. At the first two trials, the State used its peremptory strikes on all of the qualified black prospective jurors.

In each case, the jury convicted Flowers and sentenced him to death, but the convictions were later reversed by the Mississippi Supreme Court based on prosecutorial misconduct. At the third trial, the State used all of its 15 peremptory strikes against black prospective jurors, and the jury convicted Flowers and sentenced him to death.

The Mississippi Supreme Court reversed again, this time concluding that the State exercised its peremptory strikes on the basis of race in violation of Batson v. Kentucky. Flowers’ fourth and fifth trials ended in mistrials. At the fourth, the State exercised 11 peremptory strikes—all against black prospective jurors. No available racial information exists about the prospective jurors in the fifth trial.

At the sixth trial, the State exercised six peremptory strikes—five against black prospective jurors, allowing one black juror to be seated. Flowers again raised a Batson challenge, but the trial court concluded that the State had offered race-neutral reasons for each of the five peremptory strikes. The jury convicted Flowers and sentenced him to death. The Mississippi Supreme Court affirmed. Flowers appealed.

COURT’S ANALYSIS & CONCLUSIONS

Justice Kavanaugh delivered the opinion of the Court, in which Justices Roberts, Ginsburg, Breyer, Alito, Sotomayor and Kagan joined. Justices Thomas and Gorsuch dissented.

Kavanaugh began by discussing the history behind the landmark Batson v. Kentucky. In his majority opinion he explained that under Batson, once a prima facie case of discrimination has been shown by a defendant, the State must provide race-neutral reasons for its peremptory strikes. The trial judge then must determine whether the prosecutor’s stated reasons were the actual reasons or instead were a pretext for discrimination.

“Four categories of evidence loom large in assessing the Batson issue here, where the State had a persistent pattern of striking black prospective jurors from Flowers’ first through his sixth trial,” said Justice Kavanaugh.

The Court reasoned that here, a review of the history of the State’s peremptory strikes in Flowers’ first four trials strongly supports the conclusion that the State’s use of peremptory strikes in Flowers’ sixth trial was motivated in substantial part by discriminatory intent:

“The State tried to strike all 36 black prospective jurors over the course of the first four trials. And the state courts themselves concluded that the State had violated Batson on two separate occasions. The State’s relentless, determined effort to rid the jury of black individuals strongly suggests that the State wanted to try Flowers before a jury with as few black jurors as possible, and ideally before an all-white jury.”

The Court also reasoned that the State’s use of peremptory strikes in Flowers’ sixth trial followed the same discriminatory pattern as the first four trials.

“Disparate questioning can be probative of discriminatory intent,” said the Court.  “Here, the State spent far more time questioning the black prospective jurors than the accepted white jurors—145 questions asked of 5 black prospective jurors and 12 questions asked of 11 white seated jurors.”

Consequently, along with the historical evidence from the earlier trials, as well as the State’s striking of five of six black prospective jurors at the sixth trial, the dramatically disparate questioning and investigation of black prospective jurors and white prospective jurors at the sixth trial strongly suggest that the State was motivated in substantial part by a discriminatory intent.

Furthermore, the Court reasoned that comparing prospective jurors who were struck and not struck is an important step in determining whether a Batson violation occurred. “Here, Carolyn Wright, a black prospective juror, was struck, the State says, in part because she knew several defense witnesses and had worked at Wal-Mart where Flowers’ father also worked,” said the Court. “But three white prospective jurors also knew many individuals involved in the case, and the State asked them no individual questions about their connections to witnesses. White prospective jurors also had relationships with members of Flowers’ family, but the State did not ask them follow-up questions in order to explore the depth of those relationships.”

Finally, the Court ruled that the State also incorrectly explained that it exercised a peremptory strike against Wright because she had worked with one of Flowers’ sisters and made apparently incorrect statements to justify the strikes of other black prospective jurors. “When considered with other evidence, a series of factually inaccurate explanations for striking black prospective jurors can be another clue showing discriminatory intent,” said the Court. Consequently, the trial court at Flowers’ sixth trial committed clear error in concluding that the State’s peremptory strike of black prospective juror Carolyn Wright was not motivated in substantial part by discriminatory intent. Pp. 26–30.

With that, the Supreme Court reversed Flowers’ conviction and remanded the case back to the trial court.

My opinion? Good decision. Although the facts and allegations are terrible for Mr. Flowers, prosecutors simply cannot use exercise race-based peremptory challenges to get justice.

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

Car Stop & Purse Search

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

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

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

BACKGROUND FACTS

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

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

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

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

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

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

LEGAL ISSUE

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

COURT’S ANALYSIS & CONCLUSIONS

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

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

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

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

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

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

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

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

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

Many Washington Inmates Are Eligible for Release.

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Pretrial Release, Skagit County Criminal Defense, Studies, Whatcom County Criminal Defense, , , , ,

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Excellent article by  reporter Chad Sokol of the Spokesman Review describes how, on any given day, thousands of inmates in Washington jails are eligible to be released based on their likelihood to commit new crimes and show up to court before trial, according to a new report from the state auditor’s office.

Auditors found roughly one-third of the state’s jail inmates are candidates for pretrial services such as electronic monitoring, mental health and substance abuse treatment, and texts and phone calls that remind people of court dates.

The auditors also found the cost of incarceration significantly outweighs the cost of pretrial services, concluding such reforms could save $6 million to $12 million in taxpayer money each year while maintaining public safety.

The audit, published last week, makes no policy recommendations but reaffirms what criminal justice activists have been saying for years: The cash bail system disadvantages the poor and fuels recidivism.

“When defendants cannot afford to pay bail, they remain in jail until the trial. Keeping them in jail is costly to the taxpayers . . . Perhaps more importantly, extended jail time before trial can have significant consequences for defendants, as they become more likely to be convicted, more likely to receive a longer sentence, and less likely to gain and maintain future employment.” ~ WA State Auditor’s Office

According to reporter Sokol, the state auditors examined 2016 jail inmate data using the Public Safety Assessment, a risk-assessment tool created by the Laura and John Arnold Foundation. About half of the 4,700 inmates deemed eligible for release were considered likely to reoffend without monitoring and services, while the rest were considered low-risk.

The auditors specifically examined data from Spokane and Yakima counties, which have made concerted efforts to reduce jail overcrowding and eliminate socioeconomic disparities. The auditors found that defendants given pretrial services reoffended at slightly lower rates than those released on bail, but in Spokane County the difference was not statistically significant.

Defendants released through pretrial services in Spokane County, however, were much more likely to show up to court than those released on bail, the auditors found. Failure-to-appear rates for the two groups were 38 percent and 53 percent, respectively.

The audit accompanies another report, published in February by Washington’s Pretrial Reform Task Force, which makes a range of policy recommendations aimed at safeguarding the presumption of innocence enshrined in the Constitution.

“The use of a pretrial services department can be really helpful in assisting people getting to court or remembering court dates,” said Municipal Court Judge Mary Logan, who co-authored the task force report with state Supreme Court Justice Mary Yu and King County Superior Court Judge Sean O’Donnell.

Logan noted bail is “not supposed to be a punitive measure,” and with few exceptions, court rules require defendants be released before trial. The task force concluded the government – not defendants – should bear the cost of pretrial services.

“Accused persons cannot and should not be required to incur additional costs or debts as a result of their participation in pretrial services,” they wrote.

Spokane County’s criminal justice administrator, Maggie Yates, said the task force report validates the county’s reform efforts funded by the MacArthur Foundation.

My opinion? This is good news. Releasing individuals when it’s appropriate not only makes sense legally, but ethically and financially as well. Individuals facing charges may continue to support their families, pursue and maintain employment, and seek out mental health or substance use treatment while navigating court proceedings. The resulting stability only makes our community safer.

Please read my Legal Guide taking Making Bail and contact my office if you have a friend or family member who is incarcerated and facing criminal charges. Hiring an effective and competent defense attorney is the first and best step toward justice. Under CrR 3.2, judges can lower bail or release defendants on their personal recognizance while the charges are pending.

Victim Restitution

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Possession of Stolen Property, Restitution, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

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In State v. Romish, the WA Court of Appeals held that a defendant’s obligation to pay a victim’s restitution in possession of stolen property cases is only limited to damage that the State can prove was caused by the defendant’s conduct.

BACKGROUND FACTS

Mr. Romish pled guilty to possession of stolen property of a Bobcat tractor. In his guilty plea statement, Mr. Romish admitted to knowingly possessing stolen property, but he denied altering the condition of any of the property in his possession. He also did not indicate when he came into possession of the stolen property.

At the plea and sentencing hearing, Mr. Romish’s attorney agreed that restitution could be ordered if the State showed a causal connection between the damage to the Bobcat and Mr. Romish’s possession of it, but expressed doubts that the State could establish such a connection. Mr. Romish denied altering the condition of the Bobcat. Counsel also disputed the amount of claimed damages and requested a separate hearing on restitution.

A restitution hearing was held October 12, 2017. The only witness to testify was the owner of the stolen property. He described the damage that was sustained by the Bobcat as a result of the theft. He also explained that the Bobcat had been repainted in a haphazard manner and that a taillight had been broken. Although there did not appear to be any functional damage, the owner had the Bobcat serviced it, just to make sure.

Receipts showed the service, repair and repainting costs totaled $4,897.42. In addition to having the Bobcat repaired and serviced, the owner testified he had to rent replacement equipment during the period that the Bobcat was unavailable for use in his excavation business. Rental fees were incurred not only for the period that the Bobcat was missing as stolen, but also for the time the Bobcat was out of commission for service and repairs. The total rental cost was $4,928.46.

On cross-examination, the property owner denied knowing who stole the Bobcat or
who had repainted it. The owner testified that the paint on the Bobcat was neither fresh
nor wet when it was recovered. And the property owner denied seeing any paint at the
location where the Bobcat was recovered.

After the close of evidence, the trial court ordered Mr. Romish to pay restitution for all costs associated with the disappearance, repair and repainting of the Bobcat. Although the court recognized Mr. Romish had not been convicted of stealing the Bobcat, it nevertheless reasoned it could find at least by a preponderance of the evidence that the damage to the Bobcat had occurred while it was in Mr. Romish’s possession. The total amount of restitution was set at $9,825.88.

Mr. Romish appealed.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals took Mr. Romish’s side. It vacated the trial court’s restitution order and remanded Romish’s matter for a new restitution hearing.

“The law of restitution relies on causation . . .” said the Court of Appeals, ” . . . and that reliance creates a distinction between theft and possession of stolen property.” Furthermore, the Court reasoned that culpability for possession of stolen property does not necessarily include culpability for the stealing of the property. “The actual thief is guilty of a different crime.”

The Court further reasoned that when a defendant has been convicted of possessing—but not the theft of—stolen property, sentencing courts must ensure a true causal connection links the defendant’s conduct to the victim’s losses. The mere fact that property was recently stolen does not permit inferring causation. “Instead, we require more specific evidence tying the defendant’s conduct to the victim’s losses,” said the Court.

Here, the Court held that no such evidence was presented in Mr. Romish’s case:

“Although the Bobcat was found in a barn at Mr. Romish’s residence, there was no evidence of painting supplies or recent painting activities at that location. Nor were there shards of glass or plastic that might signify the tail light had been broken at Mr. Romish’s
residence. In addition, the paint on the Bobcat was not fresh. This suggests that at least some time had passed between the repainting of the Bobcat and the date of its recovery by law enforcement.”

Additionally, the evidence presented at the hearing doidnot link Mr. Romish’s criminal conduct to many of the victim’s claimed damages. “No evidence was presented that might lead one to believe the Bobcat would not have been repainted or the taillight broken ‘but
for’ Mr. Romish’s possession,” said the Court of Appeals. “In like manner, there is no reason to think Mr. Romish’s possession of the Bobcat was the ‘but for’ cause of the victim’s rental fee expenses prior to the offense conduct date of August 23, 2016. Given these circumstances, the order of restitution must be reversed.”

My opinion? This case presented an interesting question regarding causation and damages in a criminal law context. Although the victim’s plight is sympathetic, and although there was substantial evidence that Mr. Romish stole the Bobcat, the Court was correct in its ruling that the State lacked evidence showing that Mr. Romish actually damaged the stolen Bobcat. Theft and property damage require two different levels of proof.

Please contact my office if you, a friend or family member face criminal charges. A defendant’s obligation to pay restitution to the victim of a crime is a huge issue in criminal law. Hiring competent and experienced defense attorney is a step in the right direction.

Firearms & Terry Stops

Bellingham Defense Attorney, Constitutional Rights, felony, Firearm, Fourth Amendment, law enforcement, Mount Vernon Criminal Defense Attorney, Open Carry, police, Probable Cause, Search and Seizure, Skagit County Criminal Defense, Terry Stop, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

What Happens If I Get Pulled Over for DUI and I Have a Loaded Gun in My Car in Virginia? - Pack Law Group

In State v. Tarango, the WA Court of Appeals held that the presence of a firearm in public and the presence of an individual openly carrying a handgun in a “high-risk setting,” are insufficient, standing alone, to support an investigatory stop.

BACKGROUND FACTS

At around 2:00 in the afternoon on a winter day in 2016, Mr. Matthews drove to a neighborhood grocery store in Spokane, parking his car next to a Chevrolet Suburban in which music was playing loudly. A man was sitting in the passenger seat of the Suburban, next to its female driver. When Mr. Matthews stepped out of his car and got a better look at the passenger, who later turned out to be the defendant Mr. Tarango, he noticed that Mr. Tarango was holding a gun in his right hand, resting it on his thigh. Mr. Matthews would later describe it as a semiautomatic, Glock-style gun.

As he headed into the store, Mr. Matthews called 911 to report what he had seen, providing the 911 operator with his name and telephone number. The first officer to respond saw a vehicle meeting Mr. Matthews’s description parked on the east side of the store. He called in the license plate number and waited for backup to arrive. Before other officers could arrive, however, the Suburban left the parking area, traveling west.

The Suburban was followed by an officer and once several other officers reached the vicinity, they conducted a felony stop. According to one of the officers, the driver, Lacey Hutchinson, claimed to be the vehicle’s owner. When told why she had been pulled over, she denied having firearms in the vehicle and gave consent to search it.

After officers obtained Mr. Tarango’s identification, however, they realized he was under Department of Corrections (DOC) supervision and decided to call DOC officers to perform the search.

In searching the area within reach of where Mr. Tarango had been seated, a DOC officer observed what appeared to be the grip of a firearm located behind the passenger seat, covered by a canvas bag. When the officer moved the bag to get a better view of the visible firearm—the visible firearm turned out to be a black semiautomatic—a second firearm, a revolver, fell out. Moving the bag also revealed a couple of boxes of ammunition. At that point, officers decided to terminate the search, seal the vehicle, and obtain a search warrant. A loaded Glock Model 22 and a Colt Frontier Scout revolver were recovered when the vehicle was later searched.

The State charged Mr. Tarango, who had prior felony convictions, with two counts of first degree unlawful possession of a firearm. Because Mr. Tarango had recently failed to report to his community custody officer as ordered, he was also charged with Escape from community custody.

Before trial, Mr. Tarango moved to suppress evidence obtained as a result of the traffic stop, arguing that police lacked reasonable suspicion of criminal activity. However, the trial court denied the suppression motion. Later, at trial, the jury found Mr. Tarango guilty as charged. He appealed.

ISSUE

The issue on appeal was whether a reliable informant’s tip that Mr. Tarango was seen openly holding a handgun while seated in a vehicle in a grocery store parking lot was a sufficient basis, without more, for conducting a Terry stop of the vehicle after it left the lot.

COURT’S ANALYSIS & CONCLUSIONS

First, the Court of Appeals held that Mr. Tarango’s motion to suppress should have been granted because officers lacked reasonable suspicion that Mr. Tarango had engaged in or was about to engage in criminal activity.

The Court reasoned that warrantless searches and seizures are per se unreasonable unless one of the few jealously and carefully drawn exceptions to the warrant requirement applies.

“A Terry investigative stop is a well-established exception,” said the Court. “The purpose of a Terry stop is to allow the police to make an intermediate response to a situation for which there is no probable cause to arrest but which calls for further investigation . . . To conduct a valid Terry stop, an officer must have reasonable suspicion of criminal activity based on specific and articulable facts known to the officer at the inception of the stop.”

Additionally, the Court of Appeals reasoned that in evaluating whether the circumstances supported a reasonable suspicion of criminal conduct, it reminded that Washington is an “open carry” state, meaning that it is legal in Washington to carry an unconcealed firearm unless the circumstances manifest an intent to intimidate another or warrant alarm for the safety of other persons.

“Since openly carrying a handgun is not only not unlawful, but is an individual right protected by the federal and state constitutions, it defies reason to contend that it can be the basis, without more, for an investigative stop.”

Here, because the officers conducting the Terry stop of the Suburban had no information that Mr. Tarango had engaged in or was about to engage in criminal activity, the officers lacked reasonable suspicion.

Consequently, the Court of Appeals ruled that Tarango’s motion to suppress should have been granted. The Court also reversed and dismissed his firearm possession convictions.

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.

Signalling Turns

Bellingham Defense Attorney, DUI, law enforcement, misdemeanor, Mount Vernon Criminal Defense Attorney, Pretext, Probable Cause, Reckless Driving, Skagit County Criminal Defense, Washington Court of Appeals, Washington State Patrol, Whatcom County Criminal Defense, , , , , ,

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In State v. Brown, the WA Court of Appeals held that a driver, who moved left from a middle lane to a dedicated left turn lane while signaling his intention to change lanes, is not required to reactive his turn signal before turning left from the reserve lane unless public safety is implicated. Therefore, evidence discovered when a driver is stopped for failing to signal a turn when public safety is not implicated must be suppressed.

BACKGROUND FACTS

On the evening of March 22, 2015, Trooper Acheson of the WA State Patrol patrolled the streets of Kennewick. At 10:15 p.m., while traveling eastbound on Clearwater Avenue, Trooper Acheson saw Mr. Brown driving a Toyota Tundra, turn right from Huntington Street onto Clearwater Avenue. During the turn, the left side tires of the Tundra, a large pickup, crossed the white dashed divider line between the two eastbound lanes by one tire width for a brief moment, after which the vehicle fully returned to its lane of travel. Brown’s diversion across the dividing line did not endanger any travel. Acheson observed Brown’s tires cross the white dashed divider line, and he continued to view Brown’s driving thereafter.

Shortly after entering Clearwater Avenue, Mr. Brown signaled his intent to change lanes, and to move to the left or inner eastbound lane, by activating his left turn signal that blinked numerous times. Brown entered the inner lane of the two lanes.

Soon, Mr. Brown approached the intersection of Clearwater Avenue and Highway 395, where the eastbound lanes widen to three lanes. The innermost of the three lanes becomes a designated left turn only lane. Brown again wished to change lanes so he could turn left. Brown signaled his intent to move left into the dedicated turn lane. Brown maneuvered his vehicle into the dedicated turn lane, at which point the left turn signal cycled-off.

Mr. Brown stopped his vehicle in the dedicated left turn lane while awaiting the light to turn green. He did not reactivate his turn signal. Trooper Acheson pulled behind Brown. No other traffic was present on eastbound Clearwater Avenue. When the light turned green, Brown turned left onto northbound Highway 395. Trooper Mason Acheson then activated his patrol vehicle’s emergency light and stopped Brown.

Trooper Acheson stopped David Brown based on Brown’s crossing the eastbound lanes’ divider line during his turn from Huntington Street onto Clearwater Avenue. He did not stop Brown based on Brown’s failure to signal his left turn onto Highway 395. After stopping Brown, Trooper Acheson investigated Brown for suspicion of driving under the influence of intoxicants (DUI). Acheson arrested Brown for DUI.

Brown filed a motion to suppress evidence garnered from the stop of his car by Trooper Acheson. The court concluded that, because Brown violated no traffic law, Trooper Acheson lacked probable cause to initiate the traffic stop. Therefore, the court suppressed all evidence gained from the stop and thereafter dismissed the prosecution.

The Prosecutor appealed the dismissal to the superior court. According to the superior court, David Brown violated RCW 46.61.305(2), which requires a continuous signal of one’s intent to turn during the last one hundred feet before turning left. Because Trooper Mason Acheson observed Brown’s failure to continuously signal before turning left onto the highway, Acheson gained reasonable suspicion of a traffic infraction. The superior court remanded the case to the district court for further proceedings.

Mr. Brown appealed.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that RCW 46.61.305(2) declares that a driver must, “when required,” continuously signal an intention to turn or cross lanes during at least the last one hundred feet traveled before turning or moving lanes. This appeal asks if this statute compels a driver, who moved left from a middle lane to a dedicated left turn lane while signally his intention to change lanes, to reactivate his turn signal before turning left from the reserved turn lane.

“We hold that the statute only requires use of a signal in circumstances that implicate public safety. Because the circumstances surrounding David Brown’s left-hand turn from a left-turn-only lane did not jeopardize public safety, we hold that Trooper Acheson lacked grounds to stop David Brown’s vehicle.”

With that, the Court of Appeals reversed the superior court, reinstated the district court’s grant of David Brown’s motion to suppress and dismissed the charge of driving while under the influence.

My opinion? Good decision. It makes sense that unless public safety is an issue, police officers shouldn’t have probable cause or reasonable suspicion to pull over a vehicle that’s clearly in the left-turn lane even though their vehicle turn signal is not activated.

Please contact my office if you, a friend or family member face criminal charges of DUI, Reckless Driving, Driving While License Suspended or other criminal traffic violations.

Rodriguez v. United States: Nonconsensual Dog Sniff of Car Held Unconstitutional

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Due Process, Evidence, felony, law enforcement, Methamphetamine, police, Privacy, Search and Seizure, Terry Stop, Uncategorized, United States Supreme Court, Whatcom County Criminal Defense, , ,

In State v. Rodriguez, the United States Supreme Court held that absent reasonable suspicion, police extending a traffic stop to conduct a dog sniff violates the Constitution’s shield against unreasonable seizures.

In summary, the Supreme Court ruled that (1) the 4th Amendment does Fourth Amendment does not tolerate a dog sniff conducted after completion of a traffic stop, (2) a police stop exceeding the time needed to handle the matter for which the stop was made violated the Constitution’s shield against unreasonable seizures, (3) a seizure justified only by a police-observed traffic violation becomes unlawful if it is prolonged beyond the time reasonably required to complete the issuing of a ticket for the violation, and (4) a stop may, however, be prolonged for a dog sniff when there is independent information giving rise to an individualized suspicion that the occupants of the car are involved in a drug offense.

The 6-3 ruling is indeed a big win for the 4th Amendment.

In this case, Officer Struble, a K-9 officer, stopped the defendant Rodriguez for driving on a highway shoulder. After issuing a warning for the traffic offense Officer Strubble asked Rodriguez for permission to walk his dog around the vehicle. Rodriguez refused. Struble detained him until another police officer arrived. Struble’s dog performed a search and alerted to the presence of drugs in the vehicle. The dog found methamphetamine.

Seven or eight minutes elapsed between the time Struble issued the warning and the dog alerting to the presence of contraband.

Rodriguez faced several federal drug charges. Although he moved to suppress evidence seized from the vehicle on the basis that Officer Struble prolonged the traffic stop without reasonable suspicion in order to conduct the dog sniff search, the lower court denied Rodriguez’s motion. Eventually, the United States Supreme Court weighed in on the search and seizure issues.

The Court reasoned that a routine traffic stop is more like a brief stop under Terry v. Ohio than an arrest. Its duration is determined by the seizure’s “mission,” which is to address the traffic violation that warranted the stop and attend to related safety concerns.

Beyond determining whether to issue a traffic ticket, an officer’s investigation during a traffic stop typically includes checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance. These checks serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly.

The court further reasoned that a dog sniff is not fairly characterized as part of the officer’s traffic mission. Also, the Court was concerned that seizing citizens for traffic stops and holding them to conduct a more intrusive search with no evidence of criminal activity beyond the mere traffic stop is unlawful: “The critical question is not whether the dog sniff occurs before or after the officer issues a ticket, but whether conducting the sniff adds time to the stop.

My opinion? Great ruling! It’s rare that the Supreme Court upholds the 4th Amendment these days. Fortunately, this favorable outcome happened because the suspect asserted his rights by refusing the dog sniff. Past rulings from the U.S. Supreme Court limit 4th Amendment protections where suspects DID NOT assert their rights. See Florida v. Bostick.

Yet here’s a case where the suspect did flex their rights. Look at the outcome! It’s a testament – a reminder, if you will – that asserting your rights makes a difference. Great 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.

Marijuana / THC Breathalyzer Available Soon.

Blood Test, Boating Under the Influence, Drug Offenses, Drug Recognition Expert, DUI, marijuana, police, Search Warrant, Uncategorized, Washington State Patrol, , ,

Marijuana breathalyzer technology is here, and it's coming for drivers | fox43.com

Technology appears to be catching up.

Since Colorado and Washington legalized the recreational use of marijuana in 2014, and the growing trend to legalize pot in some capacity across the nation, there is an increased interest in addressing drugged driving.

However, today’s standardized testing marijuana intoxication is not as simple as detecting alcohol. More science and research are required. It the meantime, technology will be coming to market, such as the marijuana breathalyzer being developed by Cannabix Technologies, Inc. to give police officers an on-site tool to enhance detection of THC, the psychotropic metabolite in marijuana.

In the future, devices of this type will likely be dialed in by the forensic community and become an integral element in identifying marijuana-intoxicated drivers and in other settings, including workplaces and general consumer use, just as the alcohol breathalyzer is today.

My opinion? We saw this coming. It’s almost humorous. Typically, the law lags behind technological advances. Here, technology appears to be lagging behind the evolution of marijuana legalization! Interesting development, no? This device is another tool in the hands of law enforcement – along with Drug Recognition Experts, and search warrants for the testing of blood – for investigating DUI charges.

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