Tag Archives: Skagit County Criminal Defense Attorney

State v. Schultz: Warrantless Search of Home

911 Call, Constitutional Rights, Domestic Violence, Drug Offenses, Exigent Circumstances, felony, Knock & Talk, law enforcement, marijuana, Methamphetamine, misdemeanor, police, Privacy, Search and Seizure, Search Warrant, Washington Supreme Court, , ,

Vindictive Police: 6 Detectives Search Yehuda Glick's Home following Temple Mount Arrest | The Jewish Press - JewishPress.com | David Israel | 24 Shevat 5780 – February 19, 2020 | JewishPress.com

Excellent opinion. In State v. Schulz, the WA Supreme Court held that the Exigent Circumstances exception to the Search Warrant requirement was inapplicable when police unlawfully searched the Defendant’s home.

BACKGROUND FACTS

Officers received a 911 call about a couple was yelling inside their apartment.  Officers drove to the scene.  The woman, Ms. Schultz, consented to the officer’s request to enter the apartment.  Officers found a marijuana pipe.  Upon their find, they also conducted a more intrusive – and warrantless – search of the apartment.  Methamphetamine was found. Ms. Schultz was charged with Possession of Methamphetamine.

COURT’S REASONING AND CONCLUSIONS

The WA Supremes reasoned the test for an emergency aid exception (also called Exigent Circumstances) entry has been expanded to include the following elements: (1) The police officer subjectively believed that someone likely needed assistance for health or safety concerns; (2) a reasonable person in the same situation would similarly believe that there was need for assistance; (3) there was a reasonable basis to associate the need for assistance with the place being searched; (4) there is an imminent threat of substantial injury to persons or property; (5) state agents must believe a specific person or persons or property are in need of immediate help for health or safety reasons; and (6) the claimed emergency is not a mere pretext for an evidentiary search.

They further reasoned that here, the mere acquiescence to an officer’s entry is not consent to search.  It is also not an exception to our state’s constitutional protection of the privacy of the home. Finally, while the likelihood of domestic violence may be considered by courts when evaluating whether the requirements of the emergency aid exception to the warrant requirement have been satisfied, the warrantless entry in this case was unnecessary.  Officers merely heard raised voices from outside the home.  The agitated and flustered woman who answered the door indicated that no one else was present in the home.  No emergency existed.

My opinion?  Good decision.  Granting a police officer’s request to enter the home is not, by itself, consent to search the home.  Period.

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

State v. Irby: Jury Selection Gone Wrong

Constitutional Rights, felony, Homicide & Manslaughter, Jury Trial, Washington Court of Appeals, Washington Supreme Court, , ,

How to weed out bad jurors during jury selection

Very interesting case. In State v. Irby, the WA Supreme Court held that a defendant’s right to be present during jury selection was violated when the trial judge emailed the attorneys and said he was inclined to release ten prospective jurors for hardship.

The defendant, Terrance Irby, was charged with first degree murder.  During jury selection, several members of the jury were disqualified by the judge and attorneys through email exchanges.  The communications occurred without the defendant being present.  Consequently, the Court of Appeals overturned Irby’s conviction.

The WA Supremes reasoned,  “In criminal prosecutions the accused shall have the right to appear and defend person, or by counsel”   under the due process clause of 14th Amendment of the U.S. Constitution and article I, section 22 of the WA Constitution.  Here, the State failed to show beyond a reasonable doubt that the removal of several potential jurors in Irby’s absence had no effect on the verdict.

My opinion?  Good decision.  The rule is clear as day.  Perhaps one of the jurors who was struck via email would have found Irby not guilty.  We’ll never know.  At any rate, Mr. Irby’s rights were clearly violated.

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.

Latest DUI Emphasis Patrol Nets 151 Whatcom County Drivers

Bellingham, Bellingham Defense Attorney, Blood Test, Department of Licensing, Drug Offenses, DUI, Ignition Interlock Device, law enforcement, marijuana, misdemeanor, police, Terry Stop, Washington State Patrol, Whatcom County Criminal Defense, , ,

Drive Hammered Get Nailed! - The Bee -The buzz in Bullhead City - Lake Havasu City - Kingman - Arizona - California - Nevada

The latest “Drive Hammered, Get Nailed” campaign put more officers on patrol during the holiday season and resulted in 151 Whatcom County drivers being arrested on suspicion of drunken driving.

The campaign began Nov. 25 and ended Jan. 2. The Washington State Patrol, the Whatcom County Sheriff’s Office and the Bellingham, Ferndale and Western Washington University police departments participated.

Statewide, more than 3,500 people were arrested for DUI during the campaign.

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.

Red Light Cameras Arrive in Spring 2011

Bellingham Defense Attorney, law enforcement, police, Police Misconduct, Red Light Cameras, , ,

Here they come.

Beginning April 1, motorists in Bellingham can expect to see traffic cameras at six locations that have been pinpointed as areas with high instances of speeding in school zones or vehicles running red lights. The first 30 days is an amnesty period where violators will receive warning tickets.

When the City Council voted on the camera ordinance on Nov. 23, Councilman Seth Fleetwood was the lone opposer saying it was a “tough decision.” Ultimately, Fleetwood voted against it saying, “Do we want to live in a place with cameras?”  Fleetwood also disagreed with the City Council’s decision to cancel a public hearing on the subject.  The City Council never rescheduled the meeting.  He called the cancellation “A bad move.”

Based on traffic studies in conjunction with the Bellingham Public Works Department, the Police Department came up with four locations for traffic cameras to detect red-light running: westbound on Holly Street at N. Forest Street; northbound on Ellis Street at Lakeway Drive; northbound on Meridian Street and Telegraph Road; and southbound on Samish Way at 36th Street, near Sehome Village.

Here’s how they work: when a vehicle runs a red light or is detected speeding at one of the intersections, the video equipment is triggered capturing about 12 seconds of footage including the vehicle’s license plate. State law stipulates that the camera may take pictures only from the rear of the vehicle and never the faces of the driver or passengers. Electronic images may not be used for any other purpose and must not be retained longer than necessary to enforce the violation.

The cameras are always in operation but capturing footage only when they are triggered by a vehicle in violation.  Images and video are reviewed by ATS and then a Bellingham Police officer trained on the equipment affirms each violation. If you receive a notice, you can make the payment to ATS or appeal. If you were not the driver of the vehicle, you can contest it in writing.

A ticket generated by the traffic cameras is processed as a “civil infraction” similar to a parking ticket. This is different from a notice of infraction, which occurs when a police officer pulls over a driver accused of running a red light or speeding in a school zone. The notice of infraction is reported to the driver’s auto insurance; the civil infraction is not.

Studies conducted by ATS and other private companies show that camera installation creates safer streets. However, independent studies and those done by news organizations have shown an increase in accidents at intersections where cameras have been installed.

Meantime, at least seven states have banned red-light cameras, including Maine, Mississippi, Montana, Nevada, New Hampshire, West Virginia and Wisconsin, according to Anne Teigen, a transportation specialist at the National Conference of State Legislatures.

My opinion?  Bad idea.  I’ll tell you a secret: yellow lights are timed MUCH shorter at intersections with traffic cameras.  Quite literally, you must be already driving through the intersection when the light turns yellow.  Otherwise, you’ll be caught, pictured, and ticketed.  These traffic lights are not proven to decrease bad driving behavior.  They are, however, proven to increase revenue for municipalities.  THAT’S what this is about.

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.

Patrol Car Video in Fatal Shooting of Woodcarver Released

Firearm, Homicide & Manslaughter, Uncategorized, , ,

Police video documents fatal encounter between officer and woodcarver | The Seattle Times

 Patrol car video released from an officer’s fatal meeting with John T. Williams does not show the shooting, but includes audio of their interaction. Officer Ian Birk, 27, shot Williams Aug. 30 at Boren Avenue and Howell Street. Williams died at the scene.

Birk yells “Hey!” three times to Williams, then yells three times to “Put the knife down.”

The first shot appears to be fired five seconds from when Birk first told Williams to put the knife down. Court documents show the knife was closed when photographed by investigators.

Less than a minute after the shooting, before backup officers arrive, Birk’s heard telling a woman Williams had a knife and wouldn’t drop it. He tells backup officers Williams had the knife open and was carving.  Williams’ knife had a 3-inch blade — one that is legal under the Seattle Municipal Code. Hundreds of people protested the shooting in September. Critics have said Williams was deaf in one ear and was not presenting a threat to Birk.

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 Inquest: A Step Toward Justice or Just a Step?

ACLU, Police Misconduct, , ,

InQuest Partners with Joe Security to Exclusively Deliver Joe Sandbox to the US Public Sector | Business Wire

EXCELLENT article from Jennifer Shaw of the ACLU discusses the King County inquest process.  Her recent posting to the ACLU blog discusses the King County inquest process. There is a lot of confusion about inquests:  what are they, who can participate, what findings can the jury make?  This short article addresses some of those questions.

Shaw approaches the subject by discussing how King County District Court will hold an inquest into the August 30, 2010, fatal shooting of First Nations carver John T. Williams by Seattle Police Officer Ian Birk.  She discusses how inquests are just one step in the complicated process that begins when a Seattle police officer fatally shoots someone.  “While each step can add some information to the picture, the process is cumbersome and not necessarily satisfying to the public,” says Shaw.

The first step after a fatal shooting is the criminal investigation.  The next step is to present the case to the Firearms Review Board.  The Board reviews the shooting to determine whether it was “justified.”  A shooting is considered “justified” if the officer followed the department’s policies and training when he used his weapon.

“That doesn’t mean the officer will be found guilty,” says Shaw.  “The board’s decision only means that the officer didn’t follow SPD policies or training.  Period.  It doesn’t declare that the officer committed a crime or would be found civilly liable or could even be fired.”

The next step is the inquest.  An inquest looks a lot like other trials, with a judge, a jury, lawyers, witnesses, court reporter, and observers.  But it is not.  After hearing evidence about “when, where and by what means” the person died, and listening to follow-up questions from both sides, the six-person jury simply answers a series of yes-and-no questions.

The jurors will not hear evidence about the officer’s training or whether he had alternatives to firing his gun. The attorneys cannot argue their opinions of the evidence to the jury.  They cannot ask the jury to find the officer guilty or not guilty. The jury is not permitted to answer whether any person or agency is civilly or criminally liable.

Shaw says the inquest process offers the public an interesting early view of the evidence, but the value of process is limited.  The jury cannot determine whether the officer acted reasonably or whether he had alternatives to using his weapon.  The jury cannot determine whether the department’s policies or the officer’s training was flawed.  Because of these limitations, the inquest process has been frequently criticized by surviving families and advocates, including the ACLU.

After the criminal investigation is complete, the Seattle Police Department’s Office of Professional Accountability will investigate the shooting to determine whether the officer violated department policies and may recommend discipline.  The OPA and the OPA Auditor may also recommend policy and training changes.

“Let’s hope that along the way justice is finally served and that significant changes are put in place so that an incident like this never happens again,” says Shaw.

My opinion?  I agree with Shaw’s concerns.  The inquest process needs significant retooling.  It violates the appearance of fairness to have a prosecutor – who shares a naturally symbiotic relationship with police officers – conduct an inquest.  It’s unfair that an attorney cannot represent the family of the victim at these proceedings.

It’s unfair that the jury cannot determine whether the officer acted reasonably or whether he had alternatives to using his weapon.   It’s unfair that the jury cannot determine whether the department’s policies or the officer’s training was flawed.  Clearly, the scope of the inquest must be broadened.  Otherwise, it will continue to be a mere formality offering the mere appearance of 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.

Mass Incarceration In America

Jail, Race & Law, Uncategorized, , ,

Monthly Review | From Mass Incarceration to Mass Coercion

The American Prospect magazine has just published the report, “Mass Incarceration in America”:  The issue includes essays from journalists and criminal justice experts who review the policies that have contributed to the nation’s high rate of incarceration and the subsequent impact on youth and low-income communities of color in particular.

It also details promising initiatives that seek to change incarceration trends and aid at-risk populations with social services support in order to prevent crime. Kara Gotsch, Director of Advocacy for The Sentencing Project, contributed to the special report.

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.

Representing Veterans

Bellingham Defense Attorney, Constitutional Rights, Whatcom County Criminal Defense, , ,

Webinar: Representing Veterans in Criminal Cases: Obtaining and Understanding Military Records - July 15 at 1 PM - Florida Mental Health Law

Good news.  The Louisiana Public Defender Board, in collaboration with the Louisiana Department of veterans Affairs, has developed a guide for public defense attorneys who represent veterans.

The guide provides information on substance abuse services, PTSD treatment, VA recovery services in mental health, transitional work experience (TWE) and Supported Employment (SE) and Depression Treatment.

My opinion? The guide is a great tool that could fairly easily be replicated in every state in the country.  Although it’s written for public defenders, the guide also helps private defense attorneys identify the resources available to assist their veteran clients.

I’m honored to represent veterans against criminal charges.  In my experience, their crimes can be traced back to an underlying PTSD issue from serving in the war.  They deserve the highest level of legal representation, and should be treated with dignity from the judges and prosecutors.  Our veterans fought for our country.

Attorneys representing veterans MUST KNOW their veteran clients may lose pension benefits if they plead to any convictions garnering 60 or more days of incarceration.  For more information, please click “Section A: General Information on Payment of Benefits After Incarceration after clicking the link below:

http://www.index.va.gov/search/va/va_search.jsp?SQ=&TT=1&QT=incarceration

To the veterans, I salute you. 🙂

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.

In re. Personal Restraint of Swenson

Jury Trial, Uncategorized, Washington Court of Appeals, , ,

What is Judicial Recusal? Is it ethical for judges to recuse themselves? Current Affairs 2019 - YouTube

Interesting case.  In In re. Personal Restraint of Swenson, WA Court of Appeals decided a judge should disqualify themselves from sentencing a defendant’s case if the judge’s impartiality might be reasonably questioned, but absent evidence of actual or potential bias, an appearance of fairness claim is without merit.

Mr. Swenson was sentenced for several sex offenses by a judge who prosecuted him 20 years earlier on an unrelated juvenile case.  Swenson did not ask the judge to recuse herself at the sentencing hearing on the sex offenses.  Nothing in the record indicated the judge remembered Swenson.  The judge imposed the agreed recommended sentence.  Swenson did not appeal the conviction, but he later filed a Personal Restraint Petition asking for a new sentencing hearing.  he cited the Appearance of Fairness Doctrine and the Code of Judicial Conduct.

The Court of Appeals reasoned that a judge should be disqualified if their impartiality is called into question.  However, in this case there is no showing of actual or potential bias.  The mere fact that a judge prosecuted a defendant in the past does not disqualify the judge from hearing the case today.

Moreover, the Court argued there is no basis to reasonably question whether Swenson received a fair, impartial, and neutral hearing.  The record shows the judge followed the parties’ agreed sentencing recommendation and the sentencing hearing was fair and impartial.  And nothing in the record indicates that the sentencing judge was aware of her involvement as a prosecutor 20 years earlier in an unrelated juvenile case against Swenson.

My opinion?  Seems fair.  In practice, judges typically recuse themselves upon realizing they defended or prosecuted the defendant months/years ago.  However, if the judge can’t remember, and has not been reminded by the defendant of their previous involvement, then the judge has no duty to recuse themselves.  And as far as disqualifying a judge is concerned, there must be some showing that the judge was biased for or against the defendant.  It’s common sense.

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’s New Noise Ordinance: A Step In the Right Direction

Bellingham, Bellingham Defense Attorney, law enforcement, Legislation, police, Whatcom County Criminal Defense, , ,

Keep It Down! Lansdale Borough Has a New Noise Ordinance

On December 6, at 7:00 p.m., Bellingham City Council members will vote on the creation of entertainment districts designed to simultaneously protect musicians/venues from noise complaints and downtown residents from excessive noise.

Under the ordinance, the council would officially create entertainment districts downtown and in Fairhaven.  It also would make a basic declaration recognizing that music venues “add to the vibrancy and economic vitality” of the city.  Then it directs police, in considering noise complaints, to assess the issue using various criteria like (1) time of day the complaint occurs; (2) duration and volume of sound; (3) the nature of the sound; and (4) the character of the business or industry from where the sound originates.

Members of the Bellingham Downtown Alliance for Music and Nightlife said the law contains some “very promising elements” and that it was exciting the council would be making an official declaration about the importance of music and nightlife to the city.  The group also wants the city to require landlords to disclose to potential tenants in the entertainment districts that they’d be living in an area with higher volumes of noise at later hours.

My opinion?  I live downtown.  There are three  noisy nightclubs/bars in my neighborhood.  They attract a noisy crowd, especially on the weekends.  However, I moved into this area knowing the noise existed.  Indeed, I welcomed it (if you can’t beat ’em, join ’em; if you can’t take the heat then get out of the kitchen, yadda yadda . . .).

The police and the City have cowed to the complaints of local citizens and businesses who can’t handle urban noise.  Indeed, mere months ago, Plan B Lounge closed down due to the excessive complaints of one neighbor (1!) who lived above the lounge and stated he couldn’t sleep because of the noise.  The City found in his favor and determined that Plan B must install soundproofing, and/or decrease the music.  The owners chose to leave.  Another local business bit the dust.  What a loss!  Throwing the baby out with the bathwater.

I’m in favor of the ordinance.  Police must now apply specific criteria in determining whether the noise ordinance is violated.  They can no longer make arbitrary and capricious decisions (it’s more difficult, anyway).  Good.  Let’s make standards and apply them fairly.  Otherwise, musicians and venues will continue face Disorderly Conduct charges for merely expressing themselves.

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.