Tag Archives: Skagit County Criminal Defense Attorney

State v. Deleon: Court Strikes Evidence of “Gang Affiliation” Due To Defendant’s Music Preferences

Assault, Bellingham Defense Attorney, Constitutional Rights, Duress Defense, Evidence, felony, Prison, Race & Law, Search and Seizure, Self-Incrimination, Sentencing, Washington Supreme Court, Whatcom County Criminal Defense, , ,

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In State v. Deleon, the  WA Supreme Court held that (1) a defendant’s musical preference does not establish gang membership, and their admittance to gang affiliation during jail  booking may not be used at trial.

The State prosecuted Mr. Deleon and two others for multiple counts of Assault in the First Degree with deadly weapon enhancements and with gang aggravators.  If convicted, these upward enhancements substantially increased Deleon’s prison sentence. At trial, the court admitted as evidence of gang affiliation statements the defendant made at booking about his gang affiliation and evidence of the type of music on his cell phone.  Also, the trial court allowed a police officer to testify as a gang expert regarding generalized information of gang affiliation.

Mr. Deleon was found guilty and sentenced to 1,002 months. He appealed on the issue of (1) whether the trial court violated his Fifth Amendment right against self incrimination improperly admitted the aforementioned evidence, and (2) whether the gang expert testimony regarding gang culture and behavior was irrelevant and thus improperly admitted.

The WA Supreme Court reasoned that the gang information from the jail intake forms was not gathered voluntarily, and thus should not have been admitted as evidence. In short, it reasoned that when a defendant’s self-incriminating statements are made in exchange for protection from credible threats of violence while incarcerated, the statements are coerced and involuntary:

“We do not see how statements made under these circumstances could be considered voluntary. The admission of these statements was a violation of the defendant’s Fifth Amendment rights.”

The WA Supreme Court also ruled that the trial court mistakenly allowed evidence of the type of music on the defendant’s phone as evidence of gang affiliation. “Los Tigres del Norte is a prominent and popular Latin band and there is no evidence in the record to support that enjoying their music is evidence of gang affiliation . . .  We take this opportunity to remind courts to be far more cautious when drawing conclusions from a defendant’s musical preferences.”  This scathing wisdom reminded courts to be careful when admitting generalized evidence about gang affiliation.  “Such evidence is often highly prejudicial and must be tightly constrained to comply with the rules of evidence.”

Finally, the Court ruled that much of the generalized “gang evidence” was irrelevant and prejudicial, and thus should not have been admitted. The court reasoned that, under ER 402, evidence which is not relevant is not admissible. Here, the gang evidence produced by the State’s gang expert witness was highly prejudicial:

“We agree and urge courts to use caution when considering generalized gang evidence. Such evidence is often highly prejudicial, and must be tightly constrained to comply with the rules of evidence.”

With that, the WA Supreme Court held the defendant was entitled to a new trial. Therefore, the Court reversed the convictions and gang aggravators.

My opinion? I really enjoyed the rulings in this case. Sometimes, mainstream culture and music can be misconstrued as “gang evidence” when said music/culture is heard/exhibited by minorities. The Court attacked this veiled racism. Good on them. Also, they made good rulings on the 5th Amendment issues. A defendant’s gang affiliation when being booked into jail is a matter of personal security. The information should not be admitted at trial.

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.

Jailhouse Snitches

Bellingham Defense Attorney, Informant, Studies, Uncategorized, Whatcom County Criminal Defense, , ,

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The Legislative Advocacy Clinic at the University of Washington Law School is working on passing legislation which would require a pre-trial reliability hearing for “incentivized informants,” i.e., jailhouse rats. The law school put together a survey for defense attorneys in the state that they hope will better provide them with hard data on how and when informants are being used.

Some explanation is necessary. In some criminal cases involving wrongful convictions, the main evidence against the defendant is testimony by a jailhouse informant, who is commonly referred to as a “snitch.” Unfortunately, in weighing this evidence, a jury may be unaware that the snitch has received favorable treatment or a reduced sentence in exchange for his testimony, or that he regularly has acted as a jailhouse snitch by testifying in multiple criminal cases. In this respect, the snitch’s testimony could be unreliable because it’s motivated by something other than the truth. As a result, a snitch’s testimony has proven to be false in some cases, which in turn leads to wrongful convictions.
 
When an inmate has little recourse in his own criminal case, and is facing stiff penalties as a result of his crime, the temptation and desperation may prove too much, thus resulting in voluntary testimony that negatively implicates a fellow inmate. At that point, the snitch has nothing to lose; at worst, he will not get the incentive he has been promised, and, at best, he might receive a lighter sentence, reduced charges, and/or more pleasant accommodations while incarcerated, such as placement near family members. This all-too-common phenomenon of incentives in exchange for testimony can result in false testimony, and wrongful convictions.
Even worse, a jury considering “snitch evidence” in a criminal case is likely to be totally unaware of any incentives that the snitch was given by the prosecution in exchange for his or her testimony. Therefore, if the snitch otherwise appears to be credible during his or her testimony, the jury will have no reason to suspect that the snitch may have an alternate motive to testify.
 
The implications of wrongful convictions due to false testimony by snitches is highlighted in a 2005 report by the Center on Wrongful Convictions, Northwestern University of Law, Chicago, which profiles 38 death row defendants, convicted on the basis of false testimony by snitches, whose convictions were later overturned. According to the Center’s report, snitch testimony is the leading cause of wrongful conviction in capital cases. Obviously, this can have devastating results for the criminal justice system as a whole, not to mention its potentially irreversible impact on the innocent defendant, who loses years of his or her life to incarceration, or even life altogether.

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.

Wielding Inoperable Firearm During Crime is Still Unlawful

Bellingham Defense Attorney, Firearm, Jury Trial, Kidnapping, Robbery, Sentencing, Uncategorized, Violent Crime, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Tasker, the WA Court of Appeals Division III held that although the State must prove to the jury that the defendant possessed a real firearm at the time of the crime, the State is not required to prove that the firearm was operable.

On June 13, 2013, Gloria Campos-White was sitting in her parked car outside of her daughter’s middle school waiting for her daughter’s basketball practice to finish. A man walked up to her open driver’s side window, pointed a gun in her face, and demanded she give him her purse. She complied, telling him as she handed him the purse that she did not have any money.

After the man had her purse, he got into the back seat and ordered Ms. Campos-White to drive. He still had the gun when he entered the car, and that although she did not see it again, at one point when they were actually driving she thought she heard the clicking of something behind her head.

The man gave directions as she drove, but he did not tell her where they were going. She did not know where they were. Not knowing his intentions, Ms. Campos-White felt desperate to get away. Without slowing her car, she waited for a gap in oncoming traffic, unbuckled her seatbelt, opened the car door, and jumped out of the moving vehicle. Her car soon struck a bank on the side of the road and flipped on its side. People nearby heard the crash. They stopped traffic and attended to Ms. Campos-White. They saw a man climb out of a passenger side door of her car and run off. Ms. Campos-White sustained a severe concussion that led to the loss of her ability to taste or smell.

Ultimately, based on video surveillance recorded by the middle school, Ms. Campos-White’s identification, and physical evidence recovered from the scene of the crash, Christopher Tasker was arrested and charged with first degree kidnapping, attempted first degree robbery, and first degree unlawful possession of a firearm. The State sought firearm enhancements in connection with both the first degree kidnapping and the attempted first degree robbery charges.

At trial, Ms. Campos-White identified Mr. Tasker as the man who kidnapped and attempted to rob her. She described the gun that Mr. Tasker used, explaining it was a dark color and small enough to be held with one hand. She admitted during the State’s examination that she did not know much about guns or firearms, and testified that she had “never seen a gun in real life.” She also admitted that she would not know the difference between a revolver and semiautomatic handgun by name, but knew that they looked different. She never wavered from her testimony that Mr. Tasker had been armed with a gun, however. Asked on cross-examination whether there was any chance it could’ve been anything besides a handgun, she answered, “No.”

The defense devoted its entire closing argument to urging the jury that there was reasonable doubt whether Mr. Tasker had been armed with a real firearm. It emphasized Ms. Campos-White’s nonspecific description of the gun, her inexperience with firearms, and an asserted hesitancy in her testimony. Nevertheless, the jury found Mr. Tasker guilty of all charges and imposed the deadly weapon sentencing enhancements.

Defense Counsel brought a post-trial motion to set aside the jury’s verdict on the firearm possession findings.  The trial court informed the parties that it had concluded after reading cases cited by the parties that Division Two of the Court of Appeals “seems to focus more on the question of has the prosecution proven that the gun was operable,” while Division One “appears to focus more on the question of was the gun real,” a “slightly different question.” The court denied Defense Counsel’s motion, “recognizing that it’s a razor thin issue and it could go either way on appeal.”

Mr. Tasker’s sentences on his three convictions run concurrently, with the longest being his 144 month sentence on the first degree kidnapping count. The firearm enhancement terms (60 months for the kidnapping and 36 months for the attempted robbery) run consecutive to his base sentence, increasing his sentence by eight years.

Mr. Tasker appealed on the argument that the State failed to prove he wielded an operable firearm during the crimes. In other words, the question was whether evidence of operability at the time of the crime is required because the statutory definition of “firearm” includes language that it is a weapon or device “from which a projectile or projectiles may be fired.” Again, he argued, the firearm was inoperable.

Ultimately, the Court of Appeals was not persuaded. Instead, it found that a reasonable juror would have found sufficient evidence that Mr. Tasker wielded a firearm.

Here, the State presented sufficient evidence of what it was required to prove: that the gun Mr. Tasker used in the assault was a gun “in fact,” rather than “a gunlike but nondeadly object. Mr. Tasker pointed the gun at Ms. Campos-White’s face in demanding her purse and used it to advance a kidnapping. Visibility was good; the crime occurred in daylight on a June afternoon. Ms. Campos-White saw the gun at close range and was unwavering in her testimony that it was a gun.

While she forthrightly admitted to little experience with guns “in real life,” she was old enough, as the mother of a middle schooler, to have seen guns in photographs, on the news, in television programs and in movies. The clicking noise she described hearing behind her head was consistent with Mr. Tasker’s use of a real gun. Collectively, the evidence was sufficient to establish the gun met the definition of a “firearm” under RCW 9.41.010(9).

Consequently, the Court of Appeals affirmed the 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.

“Community Caretaking” Search Upheld as Lawful

Bellingham Defense Attorney, Community Caretaking, Constitutional Rights, Evidence, felony, Firearm, law enforcement, Plain View, police, Search and Seizure, Search Warrant, Washington Supreme Court, Whatcom County Criminal Defense, , ,

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In State v. Duncan, the WA Supreme Court decided police officers may make a limited sweep of a vehicle under the community caretaking exception to the warrant requirement when (1) there is reasonable suspicion that an unsecured weapon is in the vehicle and (2) the vehicle has or shortly will be impounded and will be towed from the scene. However, this exception may not be used as a pre-text for an investigative search.

A little after midnight in Yakima one summer night in 2009, someone in a car shot into a home, grazing Kyle Mullins’ head. Other people in the home called 911 for medical assistance and to report the shooting. Callers described the car as white and possibly a Subaru or Impala. Officers were dispatched and stopped Duncan’s white Ford Taurus. Officers removed Duncan and his two passengers from the car at gunpoint, ordered them to the ground, handcuffed them, and put them in separate police cars. Without a warrant, officers opened the doors and found shell casings on the floor and a gun between the front passenger seat and the door. One officer removed the gun and placed it into an evidence bag in his own patrol car. The passengers told the police that Duncan had fired from the car and tossed the gun on the front floorboards. After the car was towed to a police annex, police obtained a warrant and made a more thorough search.

Duncan was charged with six counts of first degree assault and one count of unlawful possession of a firearm. Duncan moved to suppress the evidence under CrR 3.6 and confessions under CrR 3.5 that flowed from the traffic stop on several grounds, including that the police had insufficient grounds to stop him and that their initial warrantless search of his car was improper. At the pretrial suppression hearing, held a year and a half after the events of that summer night, the judge found that the stop was justified and that the search was reasonable, and denied the motions.

The jury returned guilty verdicts on all charges and found by special verdicts that Duncan was armed with a firearm. The judge sentenced Duncan to 1,159 months of incarceration, the top of the standard range. Duncan’s projected release date is March 26, 2099.

The case was appealed to the WA Supreme Court to decide the issue of whether the warrantless search of Duncan’s vehicle was lawful. The Court decided it was.

The Court reasoned that generally, warrantless searches and seizures are per se unreasonable. Nonetheless, there are a few jealously and carefully drawn exceptions to the warrant requirement which provide for those cases where the societal costs of obtaining a warrant, such as danger to law officers of the risk of loss or destruction of evidence, outweigh the reasons for prior recourse to a neutral magistrate. The State bears the burden of showing that the search and seizure was supported by a warrant or an exception to the warrant requirement. The fruits of an unconstitutional search and seizure must be suppressed.

The Court reasoned that the search was not lawful under Arizona v. Gant for “officer safety” reasons  because the vehicles’ occupants are detained in police cars. Also the search was not lawful under the Plain View Doctrine because the officers could see the gun from outside the vehicle. Finally, the search was also not a valid inventory search because the car was not impounded.

However, the court found the search was lawful under the community caretaking exception to the warrant requirement. Under that exception, officers may make a limited sweep of a vehicle when (1) there is reasonable suspicion that an unsecured weapon is in the vehicle and (2) the vehicle has or shortly will be impounded and will be towed from the scene.

We caution, however, that the community caretaking exception is a strictly limited exception to the warrant requirement. It may not, however, be used as a pretext for an investigatory search:

“It will only rarely justify intrusion into a private place or vehicle after an arrest. However, given the facts of this case and the fact that the sweep of the vehicle occurred before our opinion in Snapp, 174 Wn.2d 177, was announced, we are confident that the desire to remove an unsecured gun from the vehicle was not here used as a pretext for an otherwise unlawful search.”

With that, the Court concluded that the limited search of the vehicle was lawful and affirmed Duncan’s conviction.

My opinion? For those who don’t know, pretextual searches are unlawful. They usually describes false reasons that hide the true intentions or motivations for a legal action. If a party trying to admit the evidence can establish good reasons, the opposing party – usually, the defense – must prove that the these reasons were “pretextual,” or false, and move to suppress the “fruits” of the search.

Here, I understand the Court’s logic. I’m glad the Court appreciates the unlawfulness of pretextual searches and makes distinctions in the case at hand. Unfortunately, until now, unlawful pretext searches have been mitigated and/or simply ignored by our courts for many years.

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.

The “Textalyzer” Battles Distracted Driving & Works Like A Breathalyzer

Bellingham Defense Attorney, Cell Phone, Constitutional Rights, Distracted Driving, law enforcement, Legislation, National Highway Traffic Safety Administration, police, Privacy, Reckless Driving, Reckless Endangerment, Search and Seizure, Search Warrant, Technology, Text Messages, Traffic Infractions, Whatcom County Criminal Defense, , ,

 

A police officer uses a prototype of a Textalyzer to check for texting activity on a phone. A proposed law in New York would allow police to use the technology in much the same way they use a Breathalyzer.

A very interesting and well-written news article by reporter Matt Richtel of the New York Times discussed how lawmakers from New York want to treat distracted driving like drunken driving. The newest idea is to give police officers a new device that is the digital equivalent of the Breathalyzer — a roadside test called the Textalyzer.

The idea certainly carries momentum. Richtel wrote that over the last seven years, most states have banned texting by drivers, and public service campaigns have tried many tactics — “It can wait,” among them — to persuade people to ignore their phones when driving their cars.

Nevertheless, the problem appears to be getting worse. Americans confess in surveys that they are still texting while driving, as well as using Facebook and Snapchat and taking selfies. Richtel’s article emphasized that road fatalities, which had fallen for years, are now rising sharply, up roughly 8 percent in 2015 over the previous year, according to preliminary estimates. That is partly because people are driving more, but Mark Rosekind, the chief of the National Highway Traffic Safety Administration, said distracted driving was “only increasing, unfortunately.”

In response, legislators and public health experts want to treat distracted driving like drunken driving. The most provocative idea is to give police officers a new device that is the digital equivalent of the Breathalyzer — a roadside test called the Textalyzer.

Richtel explained it would work like this: an officer arriving at the scene of a crash could ask for the phones of any drivers involved and use the Textalyzer to tap into the operating system to check for recent activity.

The technology could determine whether a driver had used the phone to text, email or do anything else that is forbidden under New York’s hands-free driving laws, which prohibit drivers from holding phones to their ear. Failure to hand over a phone could lead to the suspension of a driver’s license, similar to the consequences for refusing a Breathalyzer.

Richtel described how the proposed legislation faces hurdles to becoming a law, including privacy concerns. But Félix W. Ortiz, a Democratic assemblyman who was a sponsor of the bipartisan Textalyzer bill, said it would not give the police access to the contents of any emails or texts. It would simply give them a way to catch multitasking drivers, he said.

If the legislation passed in New York, it could be adopted by other states in the same way that the hands-free rules did after New York adopted them.

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.

Attorney Alexander Ransom Selected Among Top 1% Percent

Bellingham Defense Attorney, Whatcom County Criminal Defense, , ,

Alexander Ransom, of Law Office Alexander F. Ransom, has been selected to the 2016 list as a member of the Nation’s Top One Percent by the National Association of Distinguished Counsel. NADC is an organization dedicated to promoting the highest standards of legal excellence. Its mission is to objectively recognize the attorneys who elevate the standards of the Bar and provide a benchmark for other lawyers to emulate.

Members are thoroughly vetted by a research team, selected by a blue ribbon panel of attorneys with podium status from independently neutral organizations, and approved by a judicial review board as exhibiting virtue in the practice of law. Due to the incredible selectivity of the appointment process, only the top one percent of attorneys in the United States are awarded membership in NADC. This elite class of advocates consists of the finest leaders of the legal profession from across the nation.

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.

Prisoners on Strike

Bellingham Defense Attorney, Constitutional Rights, Cruel & Unusual Punishment, Department of Corrections, Prison, Race & Law, Sentencing, Studies, Thirteenth Amendment, Whatcom County Criminal Defense, , ,

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Reporter Alice Sperry of theintercept.com  wrote an article describing how prisoners around the country have called for a series of strikes against forced labor and  demanded reforms of parole systems and prison policies; as well as more humane living conditions, a reduced use of solitary confinement, and better health care.

Apparently, Texas prisons are a hotbed for the controversy. Weeks ago, inmates at five Texas prisons pledged to refuse to leave their cells because of the strike. The organizers even drafted a letter articulating the reasons for the strike. Their demands range from the specific, such as a “good-time” credit toward sentence reduction and an end to $100 medical co-pays, to the systemic, namely a drastic downsizing of the state’s incarcerated population.

The 13th Amendment to the United States Constitution bans “involuntary servitude” in addition to slavery, “except as a punishment for crime whereof the party shall have been duly convicted . . .”

Today, however, the prison industrial complex is $2 billion a year industry, according to the Prison Policy Initiative, a nonprofit research institute.

Sperry article describes how a majority of prisoners work for the prisons themselves, making well below the minimum wage in some states, and as little as 17 cents per hour in privately run facilities. In Texas and a few other states, mostly in the South, prisoners are not paid at all, said Erica Gammill, director of the Prison Justice League, an organization that works with inmates in 109 Texas prisons.

“They get paid nothing, zero; it’s essentially forced labor,” she told The Intercept. “They rationalize not paying prison laborers by saying that money goes toward room and board, to offset the cost of incarcerating them.”

In Texas, prisoners have traditionally worked on farms, raising hogs and picking cotton, especially in East Texas, where many prisons occupy former plantations.

Although they comprise nearly half the incarcerated population nationwide — about 870,000 as of 2014 — prison workers are not counted in official labor statistics; they get no disability compensation in case of injury, no social security benefits, and no overtime.

The Texas action is not an isolated one. Prisoners in nearby Alabama and Mississippi, and as far away as Oregon, have also been alerted to the Texas strike through an underground network of communication between prisons.

In March, protests erupted at Holman Correctional Facility, a maximum security state prison in Alabama, where two riots broke out over four days. At least 100 prisoners gained control of part of the prison and stabbed a guard and the warden. Those protests were unplanned, but prisoners there had also been organizing coordinated actions that they say will go ahead as planned.

“We have to strain the economics of the criminal justice system, because if we don’t, we can’t force them to downsize,” an activist serving a life sentence at Holman told The Intercept. “Setting fires and stuff like that gets the attention of the media,” he said. “But I want us to organize something that’s not violent. If we refuse to offer free labor, it will force the institution to downsize.”

“Slavery has always been a legal institution,” he added. “And it never ended. It still exists today through the criminal justice system.”

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.

Bellingham Police Department Body Cameras Now Mandatory

Bellingham, Bellingham Defense Attorney, Body camera, Constitutional Rights, Due Process, Evidence, felony, law enforcement, Miranda, misdemeanor, Obstructing, police, Police Dogs, Police Misconduct, Privacy, Probable Cause, Qualified Immunity, Search and Seizure, Search Warrant, Technology, Terry Stop, Washington State Patrol, Whatcom County Criminal Defense, , ,

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A news article by Samantha Wohlfiel from of the Bellingham Herald reports that starting this July, Bellingham Police Department (BPD) will require all uniformed patrol officers to wear and use body cameras.

In 2014, the BPD started a voluntary program, allowing officers to use a body camera if they were willing. Now, Police Chief Cliff Cook has decided all uniformed patrol officers will need to wear the cameras while on duty:

“I think the original pilot and then the past year and a half … has shown us that having the videos is not only beneficial in cases of prosecution of individuals for crimes, as evidence of the actions of our officers, especially when they’re appropriate . . .  It also generally helps us resolve disputes or disagreements about what may have transpired between an officer and a citizen much more quickly and in a more definitive way.”

~Police Chief Cliff Cook

Initially, 18 officers volunteered for Bellingham’s program, and currently 34 officers are using the cameras, Cook said. He also mentioned that his police officers have noted that people often change their behavior for the better when they’re told they’re being filmed.

One of the main concerns for officers and community members has been privacy, Cook said:

“One of the concerns we talked about was the overriding concern about creating video of individuals in pretty personally trying situations that involve personal privacy, such as mental illness, or a domestic violence call in a private residence, or interviewing the victim of a crime. So there are provisions within the policy where officers are given discretion on whether they want to turn that camera on or not.”

~Police Chief Cliff Cook

Basically, the “policy” requires that officers turn on the cameras for any enforcement activity, an arrest, use of force or where they believe there will be the need to use force.

The department has a mix of cameras, some that are clipped on a lapel, others that are worn on glasses, but both have easily been knocked off in situations where officers were restraining someone, Cook said, so the department may shift toward other models.

Between 2014 and 2016, the total program cost has been $315,250, which includes things such as all hardware (the cameras, clips, glasses they sit on, etc.), software and docking stations, Cook told the council.

According to the article, the projected costs moving forward are about $35,000 to $56,000 per year each of the next two years for renewed data storage management.

Another concern was, of course, privacy:

“One of the concerns we talked about was the overriding concern about creating video of individuals in pretty personally trying situations that involve personal privacy, such as mental illness, or a domestic violence call in a private residence, or interviewing the victim of a crime. So there are provisions within the policy where officers are given discretion on whether they want to turn that camera on or not.”

~Police Chief Cliff Cook

The current policy requires that officers turn on the cameras for any enforcement activity, an arrest, use of force or where they believe there will be the need to use force.

My opinion? This is a step in the right direction. Body cameras make everyone behave better. They also catch evidence of what really transpired. Good move, BPD.

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.

Frisks & DV Investigations

42 U.S.C. § 1983, 9th Circuit Court of Appeals, Bellingham Defense Attorney, Constitutional Rights, Domestic Violence, law enforcement, Obstructing, police, Police Misconduct, Qualified Immunity, Race & Law, Search and Seizure, Whatcom County Criminal Defense, , ,

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In Thomas v. Dillard, the 9th Circuit Court of Appeals held that although the domestic violence (DV) nature of a police investigation is relevant in assessing whether a suspect is armed and dangerous, it is not alone sufficient to establish reasonable suspicion to search.

Palomar College Police Officer Christopher Dillard responded to a call to investigate a man pushing a woman in a public area on the college’s campus. There he found Correll Thomas, a student at the college who had been hanging out with and kissing his girlfriend, Amy Husky. Although Thomas was unarmed and in fact had committed no act of domestic violence, Dillard demanded Thomas submit to a search for weapons, believing police officers are free to conduct a Terry frisk whenever they are investigating a potential “domestic violence” incident, regardless of the specific circumstances of the call or the facts encountered at the scene. When Thomas refused to be searched, Dillard tased him. Thomas sued Dillard under 42 U.S.C. § 1983, asserting unlawful seizure and excessive force under the Fourth Amendment.

The 9th Circuit held that although the domestic violence nature of a police investigation is a relevant consideration in assessing whether there is reason to believe a suspect is armed and dangerous, it is not alone sufficient to establish reasonable suspicion:

“Because domestic violence encompasses too many criminal acts of varying degrees of seriousness for an officer to form reasonable suspicion a suspect is armed from that label alone, we hold domestic violence is not a crime such as bank robbery or trafficking in large quantities of drugs that is, as a general matter, likely to involve the use of weapons.”

Therefore, officer Dillard violated plaintiff’s Fourth Amendment rights against unreasonable seizure by detaining him for the purpose of performing a Terry frisk.

However, the 9th Circuit held that Dillard was entitled to protection from the lawsuit under qualified immunity because it was not clearly established at the time that the initial demand for a frisk was unlawful. The court further held that it was not clearly established at the time that continuing to detain a noncompliant domestic violence suspect for the purpose of executing a frisk and tasing him when he refused to comply were unlawful.

My opinion? On the one hand, it’s refreshing that the Court understood the 4th Amendment issues presented in this case. Forcing a Terry search is unlawful under these circumstances. However, I disagree with the court that the officer was entitled to qualified immunity.

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.

Police Dog “Bite & Hold”

42 U.S.C. § 1983, 9th Circuit Court of Appeals, Bellingham Defense Attorney, Constitutional Rights, law enforcement, police, Police Dogs, Whatcom County Criminal Defense, , ,

In Lowry v. City of San Diego, the Ninth Circuit held that City of San Diego’s policy of training its police dogs to “bite and hold” individuals resulted in a violation of plaintiff’s Fourth Amendment rights.

After a night of drinking with her friends, Sara Lowry returned to her workplace and fell asleep on her office couch. She awoke a short while later and went to the bathroom, before returning to her couch and going back to sleep. Unfortunately for Lowry, during her trip to the bathroom, she accidentally triggered the building’s burglar alarm. Several officers from the San Diego Police Department (“SDPD”) responded, accompanied by a police service dog named Bak. After searching the area and giving several warnings, the officers released Bak into Lowry’s office. Bak found Lowry and pounced on her, tearing open her upper lip.

Lowry filed suit against the City of San Diego (the “City”) under 42 U.S.C. § 1983, alleging that the City’s policy of training its police dogs to “bite and hold” individuals resulted in a violation of her Fourth Amendment rights. The district court granted the City’s motion for summary judgment, concluding both that Lowry did not suffer constitutional harm and that, even if she did, the City was not liable for her injuries.

The Ninth Circuit decided that a reasonable jury could find that the police officers responding to the alarm used excessive force when they deliberately unleashed a police dog that they knew might well “rip the face off” any individual who might be present in the office. They also decided that the force used was excessive and that the City was liable.

The Court reasoned that the SDPD trains its police dogs to enter a building, find a person, bite them, and hold that bite until a police officer arrives and removes the dog. However, police dogs are not trained to differentiate between “a young child asleep or . . . a burglar standing in the kitchen with a butcher knife,” and will simply bite the first person they find.

Generally, the decision of whether to conduct a canine search on or off its leash is left to the officer’s discretion. However, the SDPD’s Canine Unit Operations Manual provides that residential searches “should normally be conducted on-lead unless the handler can reasonably determine there are no residents or animals in the home.”

The Court further reasoned that objectively unreasonable uses of force violate the Fourth Amendment’s guarantee against unreasonable seizures. Our excessive force analysis under Graham v. Connor involves three steps. First, we must assess the severity of the intrusion on the individual’s Fourth Amendment rights by evaluating the type and amount of force inflicted. Second, we evaluate the government’s interest in the use of force. Finally, we balance the gravity of the intrusion on the individual against the government’s need for that intrusion.

Here, under these circumstances, the Ninth Circuit found that a reasonable juror could conclude that releasing Bak into the suite posed a high risk of severe harm to any individual present.  Additionally, the officers would not have been justified in believing that Lowry posed a threat to their safety or to others. Throughout the entire encounter, until she was bitten by Bak, Lowry remained fast asleep on the couch. Lowry did not engage in any threatening behavior, nor do anything other than lie quietly before she was bit in the face. Finally, a non-residential burglary is not an inherently dangerous crime, and the fact that an unarmed suspect has broken into a dwelling at night does not automatically mean she is physically dangerous.

Given that there is no dispute that the City’s “bite and hold policy” was the moving force behind Lowry’s constitutional injuries, the City was not entitled to dismissal under summary judgment. With that, the Ninth Circuit reversed and remanded this case for further proceedings.

Good decision.

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