Tag Archives: Skagit County Criminal Defense

Washington Department of Corrections Ends Solitary Confinement

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Prison, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Solitary Confinement: Punishment Or Cruelty? : NPR

People incarcerated at Department of Corrections (DOC) facilities will no longer be subjected to disciplinary segregation — being put in solitary confinement as a punishment — after state officials determined it is not effective.

Individuals in solitary confinement are locked in a cell for 22–24 hours per day with no social contact. The effects of solitary confinement on the human mind and body range from anxiety, depression, and heart palpitations to deteriorating eyesight, paranoia, and psychosis. The Bureau of Justice Statistics reports that approximately 25% of people in prison and 35% of those in jail who had spent 30 days or longer in solitary confinement during the previous year had symptoms of serious psychological distress. The rates were similar for those who only spent 1 day in isolation.

“This is indeed a historic moment in the department,” said DOC Secretary Cheryl Strange. “This is definitely a key step in becoming a human-centered organization by advancing proven correctional practices and methods that support individuals in change.

“The science is clear on this, and the science says stop doing it,” Strange said, adding that the practice has not been effective at deterring negative behavior.

The DOC refers to the practice as “disciplinary segregation,” and says the term “solitary confinement” is archaic and does not reflect the fact that incarcerated individuals receive programming and other benefits.

The agency made the change after collecting data on the practice of isolating incarcerated people for punishment. It found that of the 2,500 incidents where people were subjected to disciplinary segregation from Sept. 1, 2019 through Aug. 31, 2020, the majority — 57% — were disciplined for nonviolent infractions.

People who received disciplinary segregation on average spent from 11 days to 16 days in isolation. Many had already been subjected to administrative segregation, which involves isolating a person for the safety of themselves or others, while their disciplinary hearing was pending. Since most received credit for that time served in administrative segregation — which will remain in effect — the actual time spent in disciplinary segregation was relatively short, the DOC said.

Gov. Jay Inslee said the DOC’s decision “is the right thing to do.”

My opinion? Good decision. Perhaps the most disturbing consequence of solitary confinement is its skyrocketing effect on rates of self-harm and suicide among incarcerated individuals: Though only 3–8% of the incarcerated population in the United States is in solitary confinement, they represent 50% of prison suicides.

Prison should be avoided. 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.

Language App Helps Police

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, police, Race & Law, Sixth Amendment, Skagit County Criminal Defense, Technology, Whatcom County Criminal Defense, , , ,

LanguageLine Solutions(R) Launches Live Interpreting App

Tacoma police officers are now using a language translation tool to assist during emergency responses. Q13 Fox News reports that all officers have access to Language Line Solutions, a translator app on their phones.

In the past, officers used neighbors or even family members, like kids, to translate.

Lydia Zepeda, who is a member of the Commission on Immigrant and Refugee Affairs, worked with the Tacoma Police Department to introduce a better way for officers to help people in crisis.

“A lot of these people are experiencing domestic violence, they may have been sexually assaulted, or they may be some other victim of a crime and we certainly don’t want children to have to interpret for something like this.” ~Lydia Zepeda, Commission on Immigrant and Refugee Affairs.

“Language Line Solutions allows the Tacoma Police Department to offer equitable services to all members of the community,” said officer Wendy Haddow with the Tacoma Police Department.

The app offers translators for 240 different languages with voice options, and for some languages, video chat options. When you open the app, you can scroll or use the search feature to find the language you are looking for.

“This app is really, really important,” said Zepeda. She says this new tool, gives people going through an emergency an easier way to be heard, and get the help they need. She says it also protects children from having to be involved. “It minimizes trauma.”

My opinion? The language line app is an excellent use of police resources which serves everyone. In an emergency, getting information quick is vital. However, challenges arise when responding officers and the caller do not speak the same language.

Language barriers are the source of much litigation. In State v. Prok, the WA Court of dismissed a DUI case against a Cambodian DUI defendant because the police officer failed to advise Mr. Prok of his right to counsel in language easily understood. By itself, State v. Prok assisted defense attorneys who argued Motions to Suppress evidence based on language barriers between police and defendants.

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.

Not a Toy, Still a Gun

Bellingham Defense Attorney, Evidence, felony, Firearm, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Kessler Arms 12Ga. Bolt Action Shotgun

In State v. Gouley, the WA Court of Appeals held that an antique shotgun that was missing a bolt action was still a “firearm.”  The State merely has to establish that the shotgun was a real gun, not a toy gun.  The State was not required to prove that the firearm could be rendered operational with reasonable effort and within a reasonable period of time.

FACTUAL BACKGROUND

Gouley was convicted of a felony and was under community supervision when he missed an appointment with his community corrections officer. Because of Gouley’s failure to report, the Department of Corrections issued a warrant for Gouley’s arrest.

Several officers attempted to locate Gouley at his listed residence to execute the warrant. The officers found Gouley asleep in his bedroom. In searching the bedroom, the officers discovered a shotgun under Gouley’s bed. Gouley was previously convicted of a serious offense and was prohibited from possessing a firearm.

After Gouley was placed in the squad car, he said the shotgun was given to him by his great uncle. The shotgun was a 20-gauge bolt action shotgun made by Kessler Arms. Although the company was out of business, the shotgun is not rare and is relatively inexpensive. When the shotgun was discovered under Gouley’s bed, it was missing a bolt action assembly and was not operable in that condition.

The State charged Gouley with one count of First Degree Unlawful Possession of a Firearm
and one count of Escape from community custody.

At trial, the judge instructed the jury on the definition of “inoperable firearms.” The instruction said that a “temporarily inoperable firearm that can be rendered operational with reasonable effort and within a reasonable time.” Also, a “disassembled firearm that can be rendered operational with reasonable effort and within a reasonable time” met the definition of a firearm. Gouley consented to the use of this instruction. The jury convicted Gouley as charged. Gouley appealed on arguments that the State failed to present sufficient evidence to sustain his conviction.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals defined the term “firearm” under the statute. A “firearm” is a “weapon or device from which a projectile or projectiles may be fired by an explosive such as gunpowder.” Furthermore, a firearm need not be operable in order to qualify as a firearm under the statute. Instead, the inquiry is whether the firearm is a “gun in fact” rather than a “toy gun.”

The Court reasoned the evidence sufficient to show that the device at issue was a firearm  because it was a gun in fact and not a toy. “Although the shotgun was missing a bolt action, Schoeman testified that the gun could be made operable and could fire if a bolt or bolt assembly is inserted into the receiver.”

The Court raised and dismissed Gouley’s argument the firearm was inoperable. Gouley pointed to the fact that there was something wrong with the firing pin of that firearm or maybe the trigger spring, or the firing pin spring.

“However, the fact that the shotgun was defective or inoperable when it was discovered does not mean that the shotgun was a toy, or anything other than a “gun in fact.” And whether the device was a gun in fact is the only relevant determination that the jury had to make.” ~WA Court of Appeals

Ultimately, the Court reasoned the evidence established that the firearm possessed by Gouley met the definition of firearm. With that, the Court of Appeals upheld Gouley’s conviction.

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.

“Unlawful” Isn’t “Knowing”

Bellingham Defense Attorney, felony, Mount Vernon Criminal Defense Attorney, Possession of Stolen Motor Vehicle, Skagit County Criminal Defense, Washington Court of Appeals, , , , ,

This man has had so many scooters stolen he can't get theft insurance anymore - Wales Online

In  State v. Level, the WA Court of Appeals held that the term “Knowledge” cannot be inferred from the use of the term “Unlawfully” in the context of a Possession of Stolen Motor Vehicle charge.
BACKGROUND FACTS
A police officer stopped Mr. Level for driving a moped without wearing a helmet. The condition of the moped led the officer to suspect it was stolen. A review of the moped’s VIN confirmed this suspicion. The State charged Mr. Level with possession of a stolen motor vehicle. The Prosecutor’s charging documents, in pertinent part, said the following:
“The crime of Possession of a Stolen Motor Vehicle, Count 5, the maximum penalty for which is 10 yrs. imprisonment and/or $20,000 fine, plus restitution, assessments and court costs, in that the said Jacob Daniel Level in the County of Stevens, State of Washington, on or about July 22, 2019, did unlawfully possess a stolen motor vehicle, to-wit: a Taotao Scooter, the property of (victim’s name omitted); Contrary to RCW 9A.56.068(1), and against the peace and dignity of the State of Washington.”
A jury convicted Mr. Level of the stolen vehicle charge. He timely appealed on arguments that the charge failed to apprise him of any component of knowledge. Consequently, this violated his constitutional right to notice and required reversal of his conviction.
COURT’S ANALYSIS & CONCLUSIONS
The Court of Appeals agreed with Mr. Level.
“The crime of possession of a stolen motor vehicle includes an element of knowledge,” said the Court. “The type of knowledge required has two components: the defendant must both knowingly possess the motor vehicle and also act with knowledge that the motor vehicle had been stolen.”
The Court raised and dismissed the State’s arguments that allegations of “‘unlawful and felonious’” conduct sufficient imply guilty knowledge in the context of drug and firearm offenses. “But none of our decisions have held that knowledge can be inferred from the use of “unlawfully” in the context of a possession of stolen property charge,” said the Court. Furthermore, the court reasoned that proof of knowledge is multifaceted. The State must not only prove knowing possession, but also that the defendant knew of the object was stolen.
“Given the state of the law, an information’s allegation that the defendant acted unlawfully is insufficient to convey an inference that the conduct was done with a mental state of knowledge.” ~WA Court of Appeals
Thus, reasoned the Court, the inclusion of the adverb “unlawfully” in the charges does not satisfy the requirements of sufficient notice.
Next, the Court held that the remaining language in the State’s charges was insufficient to fill in the gaps. Although the State tried to salvage its charges by pointing to the allegation that the moped was the property of someone other than Mr. Level, that contention was inadequate. “It says nothing about Mr. Level’s knowledge. It merely confirms that the moped was stolen,” said the Court. With that, the Court reversed Mr. Level’s conviction.
My opinion? Good decision. In criminal law, the defendant must have both the Mens Rea and Actus Reus to commit the crime. Mens Rea refers to criminal intent. The literal translation from Latin is “guilty mind.” A mens rea​ refers to the state of mind statutorily required in order to convict a particular defendant of a particular crime. Actus Reus refers to the act or omission that comprise the physical elements of a crime as required by statute.
The only exception is if the charged crime is a Strict Liability crime. Strict liability exists when a defendant is liable for committing an action, regardless of what his/her intent or mental state was when committing the action. Crimes like DUI, possession crimes and statutory rape are all examples of strict liability offenses.

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.

Tox Lab Contaminated

Bellingham Defense Attorney, Methamphetamine, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Toxicologist, Whatcom County Criminal Defense, , , ,

How cutting drugs became big business - BBC News

Excellent article by reporter Lewis Kamb of the Seattle Times reports that recent samplings at the Washington’s forensic toxicology laboratory found areas contaminated with methamphetamine and cocaine. This raises further skepticism among defense lawyers about the integrity of blood testing being performed at a lab relied upon in thousands of criminal cases and death investigations statewide.

Apparently, residual levels of cocaine on five sites and meth on four sites within the lab — mostly ceiling vents and air intake systems, a report posted this month on the lab’s website shows. Samples of three additional sites also tested presumptively positive for other drugs.

Kamb reports that defense attorneys are seeking more transparency from the state about the lab’s ongoing contamination problems since last year. The latest sampling only underscores the need for the state to own up to and fix a problem that potentially throws all of the lab’s blood testing into question.

The latest sampling results come after the Tox Lab had falsely detected meth in blood samples tested for 11 cases since 2019. The problems surfaced after the lab expanded its operations in March 2018 across a hallway and into an annex work area where scientists with the State Patrol’s crime lab once had set up makeshift meth labs for training purposes.

But the contamination problems have persisted, with false meth results showing up in two of the 11 cases this year. The results found detectable levels of both methamphetamine and cocaine in samples collected from ceiling vents and the air intake for a lab table in the main laboratory. Cocaine also was found separately in a sample taken from the air intake of a sink in the lab.

Three additional samples garnered presumptive positive results for other drugs, including the diuretics Mannitol and Sorbitol, detected on a lab refrigerator, as well as Nicotine and the psychotropic drug Mitragynine, commonly known as Kratom, found on a lab workbench and on a floor tile outside the entrance to an office.

More samples from Washington’s tox lab will be sent to NIST for its study, and the lab is planning an on-site assessment from the National Institute for Occupational Safety and Health in November — the earliest the federal workplace safety agency could visit.

“The lab’s refusal to take corrective action is problematic,” added Magda Baker of the Washington Defender Association, a group that assists public defenders statewide. “It indicates to me that they asked for the NIST study (perhaps to signify concern about contamination) without intending to take corrective action regardless of the study’s results.”   

Kamb reports that internal documents about the Tox Lab’s contamination and expert testimony have helped at least three defendants with meth detected in their blood. All of these defendants denied using the drug and beat DUI charges. And a judge in a Pierce County case ruled in March that the Tox Lab’s testing in a contaminated area amounted to “gross governmental mismanagement.”

My opinion? Unfortunately, these problems are nothing new for the Tox Lab. In 2007, former Tox Lab Director Anne Marie Gordon was accused of falsely certifying quality-assurance samples used in DUI breath-testing. She later resigned. However, Gordon’s denials supported arguments from defense lawyers who later got dismissals on 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.

Another Jail Outbreak

Bellingham Defense Attorney, Coronavirus, Jail, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , ,

Cut COVID-19 risks NC jails and prisons | Raleigh News & Observer

Great article by Stacia Glenn of the News Tribune discusses how a COVID-19 outbreak in Pierce County Jail has up to 35 inmates testing positive.

The outbreak means the jail will only allow people arrested on suspicion of violent crimes to be booked. That includes murder, manslaughter, first-degree assault, rape, child molestation, kidnapping, child assault, domestic violence and possessing explosive devices.

Pierce County jail staff medically screens every person before they are booked. Inmates are provided with masks and given daily screenings and temperature checks, according to the jail’s website. And apparently, all three vaccines are also offered at the jail’s health clinic.

Ms. Glenn reports that since the pandemic started through June 2021, at least 398,627 people in prisons have tested positive for COVID-19, according to The Marshall Project. However, Ms. Glenn also reports that number is believed to be less than accurate. Most recently, there are approximately 6,254 positive tests for inmates in Washington state.

Prisons and jails frequently suffer from overcrowding. Even in the best of times they are, by definition, facilities where people are placed in close contact with each other on a near-constant basis. Factor in the unique health challenges faced by incarcerated people and the limited availability of quality healthcare, and it’s no surprise that correctional facilities are uniquely vulnerable to diseases such as Covid-19.

Correctional administrators have limited control over how long people spend incarcerated, but they can use what authority they possess to release people outright or direct people to less restrictive forms of confinement. They can also ease conditions of confinement and increase access to health products. Some correctional authorities have already begun this work.

As the coronavirus pandemic continues to ravage the country, and particularly its incarcerated populations, government actors have turned their attention to vaccine distribution as the solution to this health crisis. Though some states have explicitly included incarcerated individuals in their vaccination plans, many have not yet provided information as to how and when those behind bars will be granted access to this protection.

Please review my Legal Guide titled Making Bail and contact my office if you, a friend or family member are jailed and charged with a crime during this COVID-19 Pandemic. Hiring an effective and competent defense attorney is the best step toward justice. Nowadays, it may save your life.

Offender Score Post-Blake

Bellingham Defense Attorney, Drug Offenses, felony, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Comment | Where is the Literature of Dissent?

In State v. Markovich, the WA Court of Appeals held that an out-of-state conviction for drug possession may not be included in the calculation of an offender score. There is no longer a comparable Washington offense after State v. Blake declared Washington’s strict liability simple possession statute to be unconstitutional.

FACTUAL BACKGROUND

In the early morning hours of July 13, 2017, police officers broke down the door of an apartment in Everett while executing a search warrant. The defendant Mr. Markovich was sitting on a couch in the front room of the apartment. Officers noticed digital scales, loaded and unloaded syringes, baggies, burnt aluminum foil, and a small stack of cash near the couch. Markovich was handcuffed and led outside the apartment. He had a small “baggie” containing a white substance in his pocket. The substance was later determined to be less than a gram of methamphetamine.

In the bedroom, officers also discovered a black fabric bag containing a larger quality of methamphetamine, heroin, and related drug paraphernalia. Markovich was charged with Possession of Methamphetamine and Heroin With Intent to Deliver or Manufacture.

At trial, Markovich was convicted as charged. The court imposed a high-end standard range sentence of 108 months in prison followed by 12 months of community custody. Markovich appealed on numerous grounds.

While this appeal was pending, the Washington Supreme Court decided State v. Blake, holding that Washington’s drug possession statute, RCW 69.50.4013(1), violated the due process clauses of the state and federal constitutions and was void. 197 Wn.2d at 186. Markovich filed a motion for resentencing in superior court, arguing that he was entitled to resentencing in light of Blake because his two prior out-of-state convictions for drug possession were included in the calculation of his offender score.

COURT’S ANALYSIS & CONCLUSIONS

On this issue, the Court of Appeals reasoned that a prior conviction based on a constitutionally invalid statute may not be considered when calculating an offender score.

“A sentence that is based upon an incorrect offender score is a fundamental defect that inherently results in a miscarriage of justice,” said the Court, quoting In re Pers. Restraint of Goodwin. The Court emphasized that the remedy for such a defect is resentencing under the correct offender score:

“In Blake, the Supreme Court declared Washington’s strict liability drug possession statute unconstitutional and void. Because penalties imposed under the invalid statute are void, defendants who were sentenced based on an offender score that included prior convictions under this unconstitutional statute are entitled to resentencing.” ~WA Court of Appeals.

Consequently, although the Court agreed with Markovich on this issue and re-sentenced his accordingly, it nevertheless denied his remaining claims on appeal.

My opinion? Good decision, overall. Our Court’s are dutifully re-calculating offender scores in the wake of the Blake decision. However, this opinion dealt only with convictions from other states.  A specific statute, RCW 9.94A.525(3) treats federal convictions for crimes for which there is no clearly comparable offense under Washington law as a class C felony equivalent in the offender score.  Federal simple drug possession felonies should, therefore, continue to be included in the offender score.

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.

COVID-19 Outbreak At Jail

Bellingham Defense Attorney, Coronavirus, Jail, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , , ,

Justicia fights for COVID-19 protections for people who are incarcerated - Furman News

Reporter David Rasbach from the Bellingham Herald reports the Whatcom County Jail in downtown Bellingham has seen a COVID-19 outbreak the past few days. The present outbreak has spread to 10 corrections deputies and one person housed at the jail.

Rasbach reports that since late in 2020, all corrections deputies at the jail have been tested for COVID weekly. One of the deputies tested positive on Saturday, Aug. 14.

“Over the following three days, additional corrections deputies tested positive during their weekly screening,” said Whatcom County Sheriff’s Office spokesperson Deb Slater. “We began working with the Whatcom County Health Department to track down the source of the infection.

Apparently, several corrections deputies contracted COVID while booking an individual who was uncooperative. This individual refused to answer any health-related questions or take a rapid COVID-19 test and demonstrated uncontrolled behavior during the booking process.

The sheriff’s office’s Corrections Bureau has since increased its rapid testing of deputies to daily, and additional personal protective equipment protocols have been put in place, according to Slater.

In January, the Work Center had an outbreak that affected 37 people, leading to some of the testing protocols now in place at the jail.

My opinion? A jail sentence should not become a death sentence. And yet our jails and prisons are filled with people with preexisting medical conditions that put them a heightened risk for complications from COVID-19. Our jails and prisons house large numbers of people with chronic diseases and complex medical needs who are more vulnerable to COVID-19. At the beginning of the pandemic, jails cut their populations by as much as 30%, helping to protect many of these people. But states and counties abandoned their efforts to keep jail populations low as the pandemic wore on.

Please review my Legal Guide titled Making Bail and contact my office if you, a friend or family member are jailed and charged with a crime during this COVID-19 Pandemic. Hiring an effective and competent defense attorney is the best step toward justice. Nowadays, it may save your life.

Access Devices

Access Devices, Bail Jumping, Bellingham Defense Attorney, Evidence, felony, Forgery, Mount Vernon Criminal Defense Attorney, Possession of Stolen Property, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

How to Spot a Forged Check | SQN Banking Systems

In State v. Arno, the WA Court of Appeals Division III held that a paper check presented to a bank is excluded from the definition of an “access device.” Such a paper check will not support a conviction for Second Degree Possession of Stolen Property.

BACKGROUND FACTS

The defendant Mr. Ibrahim Arno brought a forged check for $1,000 to a Wells Fargo Bank in May 2018. He was charged with Forgery and Possession of Stolen Property. While his charges were pending, Mr. Arno missed a court date. He was later charged with Bail Jumping.

The case proceeded to trial. The check was nominally written and bore a signature from the victim Mr. Pinnow. He testified that a box of checks had been stolen from his house in 2017 and that the check in question was one of those that had been stolen. He denied writing the check, and the signature on the check did not match the bank’s records. The account the check was drawn on had been closed earlier after several of the stolen checks were fraudulently cashed.

Regarding the Bail Jumping Charge, Mr. Arno testified that he received a scheduling order with several dates crossed out and was “confused.”

A jury found Mr. Arno guilty of all charges. He appealed the Possession of Stolen Property conviction because the statutory definition of “access device” specifically excludes paper checks from its definition.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying a person is guilty of second degree possession of stolen property if he “possesses a stolen access device.” An “Access device” is defined as “any card, plate, code, account number, or other means of account access that can be used . . . to initiate a transfer of funds, other than a transfer originated solely by paper instrument.”

“Mr. Arno argues that the statute’s plain language excludes an attempt to transfer
funds by presenting a bad check for payment,” said the Court of Appeals. “We agree. If the exclusion is to mean anything, it clearly applies to the presentation of a paper check at a bank.”

The Court of Appeals rejected the State’s arguments that that it was prosecuting Mr. Arno for possessing an account number, not for presenting a forged check. “The record belies the State’s argument,” said the Court. “In addition, it is clear that the State was not charging Mr. Arno for possessing bank account numbers; it was charging him with possession of a stolen check.”

“We hold that a paper check presented to a bank is excluded from the definition of an access device as ‘a transfer originated solely by paper instrument.’ RCW 9A.56.010(1). Thus, there is insufficient evidence to support Mr. Arno’s conviction for second degree possession of stolen property.” ~ WA Court of Appeals

Nevertheless, the Court of appeals affirmed Mr. Arno’s convictions for forgery and bail jumping.

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.

Consensual Seizures

Bellingham Defense Attorney, Constitutional Rights, misdemeanor, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Theft, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

MTS Says Its Officers Aren't Bound by New State Use-of-Force Law

In State v. Meredith, the WA Court of Appeals held that a bus passenger consents to a warrantless search and seizure consisting of a bus fare enforcement officer requests the passenger provide proof of payment.

BACKGROUND FACTS

The defendant Mr. Meredith was riding the Swift regional transit bus in Everett late one morning. Two officers from the Snohomish County Sheriff’s Office boarded to conduct fare enforcement. When conducting fare enforcement, officers would board a bus at a stop and then ask individual passengers for proof of payment while the bus was driving from one stop to the next. A “chase vehicle” would follow the bus to help with identifying and processing anyone ordered off the bus for nonpayment.

Officer Dalton moved to the back of the bus. He began working his way forward and saying “proof of payment or ORCA card” to each passenger in a conversational tone. His partner moved to the front of the bus and worked backward. The bus drove to its next stop while the officers checked for proof of payment.

Officer Dalton requested “proof of payment or ORCA card” from Meredith, who began to check his pants and backpack. Failure to provide proof of payment could result in a notice of infraction or arrest. The bus continued along its route, and Meredith searched for four or five minutes without producing proof of payment. Officer Dalton ordered him to disembark at the next stop, and they left the bus together.

Officer Dalton asked Meredith for his name and identification. Meredith gave a fake name. Officer Dalton radioed dispatch to run the name, and it produced no returns in either Washington or Colorado. Officer Dalton suspected Meredith gave a fake name. Officer Zelaya arrived to help determine Meredith’s identity.

Officer Zelaya used a mobile fingerprint reader to scan Meredith’s fingerprints. He learned Meredith’s real name and that he had two outstanding felony warrants. Meredith was arrested on his warrants and for committing third degree theft of services for nonpayment of fare. He was charged with Making a False Statement to a Public Servant.

Pretrial, Meredith moved to suppress evidence resulting from Officer Dalton’s fare enforcement. The trial court denied the motion. A jury found Meredith guilty of making a false statement. Meredith appealed under arguments that his constitutional rights were violated by the officers when they executed an unauthorized and warrantless seizure.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals said the Washington Constitution  provides, “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Furthermore, the WA Constitution protects against unauthorized seizures by government, despite not using the word “seize.”

However, the Court emphasized that Meredith did not allege his privacy was violated. It reasoned that the analysis does not not depend upon the “privacy” of information requested when police merely request proof of payment on public transit. Therefore, a person can be unlawfully seized without a violation of their privacy.

Next, the Court analyzed whether Meredith validly consented to being seized. “We consider whether his consent was voluntary, whether the seizure was limited to the scope of the consent granted, and whether consent was granted by a party with authority to do so,” said the Court. “We determine whether consent was voluntary by considering the totality of the circumstances from the perspective of a reasonable—meaning innocent—person.”

“Here, Meredith freely chose to contract with Swift Transit for transportation. He agreed to pay and provide proof of payment. And as a reasonable rider, he necessarily understood his duty to pay his fare and provide proof of payment when asked. Thus, like the civilian base visitor in Farkas, Meredith was aware of the possible seizure of his person and consented to it.” ~WA Court of Appeals

The Court concluded by saying Meredith voluntarily consented to Officer Dalton’s initial contact. With that the Court affirmed Meredith’s conviction.

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