Tag Archives: Skagit County Criminal Defense

Signalling Turns

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

Image result for left turn signal red light

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

BACKGROUND FACTS

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

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

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

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

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

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

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

Mr. Brown appealed.

COURT’S ANALYSIS & CONCLUSIONS

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

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

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

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

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

Bounty Hunters

Bellingham Defense Attorney, Bounty Hunters, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Excellent article by of the Seattle Times reports that obtaining a Bounty Hunter’s license in Washington is relatively easy, and hardly anyone is turned away — even if they have a history of violence.

VIOLENCE BY BOUNTY HUNTERS IS INCREASING

According to Zhang, local bounty hunters have become increasingly violent. For example, in 2016, a bounty hunter shot and killed a fugitive’s mother in Graham, Pierce County, in a botched apprehension attempt. The bail-recovery agent in that case obtained a license despite three previous arrests for domestic violence and harassment.

That same year, three bounty hunters armed with guns and tear gas stormed a motel room in Spokane, sending other guests fleeing and illegally detaining an occupant who was not their target. One of the bounty hunters had been charged with crimes ranging from aggravated battery to resisting arrest, and had a felony conviction for grand theft that was later vacated — all before he was granted his license. He and another bounty hunter pleaded guilty to criminal mischief in the hotel case; the third was acquitted by a jury.

LICENSING REQUIREMENTS TOO LOW?

Washington state law does not prohibit people with criminal histories from becoming bounty hunters. Instead, the Department of Licensing reviews the legal histories of applicants case by case to determine whether they should be disqualified.

 Apparently, the standards for becoming a bounty hunter are somewhat lax. As of June, the department had rejected only two out of nearly 400 new bounty-hunter applications submitted over the past decade. Of 187 licensed bounty hunters as of June, 75 had been charged with a felony or misdemeanor, most before they applied. Of those charges, nearly three-quarters led to criminal convictions that included felony assault, burglary, misdemeanor harassment, disorderly conduct and driving under the influence.
To get a license, an applicant must take 32 hours of training, which can include self-study, and must pass a 50-question, multiple-choice exam. The state has no formalized curriculum or certification process for instructors. Only the person teaching the firearms portion of the training is required to be certified through the state.

Unlike Washington, New York and New Jersey require applicants to have at least three and five years of law-enforcement experience, respectively. New York regulates who can train bounty hunters and approves the curriculum.

New York also considers arrests and a history of criminal charges on top of convictions in approving applications, said Robert McCrie, professor at John Jay College of Criminal Justice. “If someone has a series of arrests that shows propensity for violence, officials at the Division of Licensing Services can reject them.”

HIGHLY UNREGULATED AND VERY UNTRAINED

Zhang reports that bounty hunters have sweeping powers to apprehend fugitives, in contrast to police officers, thanks in part to the 1872 U.S. Supreme Court case Taylor vs. Taintor. They can enter homes without warrants; they can break down doors without knocking or announcing themselves; and they can transport fugitives across state lines without extradition orders.

“The bail-bonds-recovery industry has been highly unregulated and very untrained,” said Brian Johnson, a professor studying the American bail-bonds recovery industry at Grand Valley State University in Michigan. In most states, commercial bail bondsmen and the bounty hunters they hire are an integral part of the justice system.

When suspects are arrested, a judge can release them on their own recognizance or on bail to ensure they show up for court. If the defendants can’t afford bail, they can turn to private bail-bond companies, which will post it for them, typically for a fee of about 10 to 15 percent of the bond. If a defendant doesn’t show up for court, the company is on the hook for the full amount, unless it can apprehend the defendant and return him or her to court.

That’s where bounty hunters come in.

INCREASE TRAINING?

Former state Sen. Adam Kline, who sponsored a bill that passed in 2008 increasing mandatory training hours from four to 32, called the department’s background-check system concerning.

“The DOL needs to be very clear that no felony and violence-related convictions, even if they have been vacated, should be permitted,” he said. Kline said he also considers the current lack of training oversight troubling, and said the Legislature should strengthen regulations.

Please read my Legal Guide titled Making Bail and contact my office if you, a friend or family member are charged with a crime, are out on bail and failed to appear for court. Trust me, quashing a warrant is far easier than dealing with bounty hunters. Hiring an effective and competent defense attorney is the first and best step toward justice.

Pot Convictions Pardoned

Bellingham Defense Attorney, Drug Offenses, marijuana, Mount Vernon Criminal Defense Attorney, Race & Law, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Image result for pot convictions pardoned

Informative article by Jim Brunner and of the Seattle Times reports that Gov. Jay Inslee will offer pardons to thousands of people with misdemeanor marijuana convictions, in an effort to help them move on from minor criminal records that can hinder housing and job prospects.
Under the plan, Inslee will pardon anyone who has an otherwise clean criminal record but with a sole conviction as an adult for misdemeanor possession of marijuana in Washington state.
Such a conviction must have occurred under state law, not a local ordinance, between Jan. 1, 1998, and Dec. 5, 2012, the effective date of Washington’s voter-approved Initiative 502, which legalized marijuana possession for users age 21 and older. The governor’s office estimates 3,500 people will be eligible for the pardons under its criteria.
Inslee announced his plan, called the Marijuana Justice Initiative, Friday morning in SeaTac at the Washington State Cannabis Summit, an annual conference sponsored by the legal marijuana industry.
“We shouldn’t be punishing people for something that is no longer illegal behavior in the state of Washington,” Inslee said at the event. He said he believes there is broad public support for the expedited pardon process.
When running for governor as a Democrat in 2012, Inslee opposed I-502, the marijuana-legalization measure. But he has since grown boosterish about the state’s marijuana trade, boasting to talk-show host Bill Maher last year that “we’ve got the best weed in the United States of America.”
Sheri Sawyer, a senior policy adviser to the governor, said Inslee’s pardon plan was motivated in part by the disproportionate impact of drug convictions on people of color.

People seeking a pardon can apply by filling out a simple petition form on the governor’s office’s website.

The new pardon process will allow applicants to skip the usual step of making a request to the state’s Clemency and Pardons Board, which typically reviews requests and makes recommendations to the governor, said Tip Wonhoff, the governor’s deputy general counsel.

For people granted pardons, the governor’s office will ask the State Patrol to remove those convictions from the criminal-history reports that are available to the public, though the records will remain available to law enforcement, according to a summary of the pardon plan provided by the governor’s office. Records also will remain in court files unless petitioners successfully petition to have them vacated by the court that imposed the sentence.

The pardon announcement comes amid Inslee’s well-publicized explorations of a 2020 presidential run. While relatively unknown in the field of potential Democratic contenders, Inslee has formed a federal political-action committee and garnered attention for making climate change the centerpiece of his potential national campaign.

Inslee’s advisers said he supports more sweeping legislation that would allow anyone with a misdemeanor adult marijuana-possession conviction to have it removed from their records.

A bill proposed in 2017 by Rep. Joe Fitzgibbon, D-Burien, would require sentencing courts to grant any person’s request to vacate such convictions. The proposal received a hearing but did not advance in the Legislature.

The city of Seattle has taken action to expunge old marijuana records. After a request by City Attorney Pete Holmes, Seattle Municipal Court judges last year moved to vacate convictions and dismiss charges for as many as 542 people prosecuted for marijuana possession between 1996 and 2010, when Holmes’ office ceased prosecuting marijuana possession.

My opinion? Kudos for Governor Inslee for making a bold step in the right direction. Washington has moved beyond prosecuting people for minor marijuana offenses. It seems right to vacate criminal convictions for these same offenses.

Please contact my office if you, a friend or family member face Drug Charges. Being convicted can limit career, housing and travel opportunities. Hiring qualified counsel is the first step toward gaining justice.

Words Alone

Assault, Bellingham Defense Attorney, felony, Jury Trial, Mount Vernon Criminal Defense Attorney, Self-Defense, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Image result for arguing

In State v. Kee, the WA Court of Appeals held that words alone are not sufficient to make a defendant the primary aggressor in an altercation.

BACKGROUND FACTS

The State charged Ms. Kee with the second degree assault of Mr. Ostrander based on an
incident on August 1, 2016. Kee punched Ostrander in the face and broke his nose.

Apparently, they exchanged words when Kee was walking down the street playing her radio loud. Eventually, they engaged in mutual combat by hitting each other back and forth several times.  Although Ostrander struck Kee in the face several times, Kee’s final blow to Ostrander broke Ostrander’s nose.

The case proceeded to a jury trial. Kee’s defense was self-defense.

At trial, the State proposed a first aggressor jury instruction. Kee objected to the instruction, arguing that it was not supported by the evidence presented at trial. The trial court disagreed and gave the following first aggressor jury instruction:

“No person may, by any intentional act reasonably likely to provoke a belligerent response, create a necessity for acting in self-defense and thereupon use, offer or attempt to use force upon or toward another person. Therefore, if you find beyond a reasonable doubt that the defendant was the aggressor, and that [the] defendant’s acts and conduct provoked or commenced the fight, then self-defense is not available as a defense.”

The jury found Kee guilty of second degree assault. She appealed on arguments that the trial court erred because its jury instruction denied her the ability to argue her theory of self-defense. Specifically, Kee argued there was insufficient evidence to justify a first aggressor jury instruction because words alone do not constitute sufficient provocation.

COURT’S ANALYSIS & CONCLUSION

Ultimately, the Court of Appeals agreed with Kee. It held that although sufficient evidence supported the first aggressor jury instruction, the trial court nevertheless erred in giving the jury instruction without also instructing the jury that words alone are not sufficient to make a defendant the first aggressor.

The Court reasoned that generally, a defendant cannot invoke a self-defense claim when she is the first aggressor and provokes an altercation. Also, a first aggressor jury instruction is appropriate when there is credible evidence from which a jury can reasonably determine that the defendant provoked the need to act in self-defense.

Nevertheless, the Court of Appeals also reasoned that although there was evidence of a physical altercation,  their interaction started with a verbal altercation. Therefore, the evidence supported a finding that Kee’s words, rather than her physical acts, first provoked the physical altercation.

“By failing to instruct the jury that words alone are insufficient provocation for purposes of
the first aggressor jury instruction, the trial court did not ensure that the relevant self-defense legal standards were manifestly apparent to the average juror,” said the Court of Appeals. “Moreover, the trial court’s instructions affected Kee’s ability to argue that she acted in self-defense.”

Accordingly, the Court of Appeals reversed Kee’s conviction.

My opinion? Good decision. I’ve conducted many jury trials involving defendants who acted in self-defense to assault allegations. Under the law, self-defense is an affirmative defense to assault charges. In my experience, prosecutors combat a defendant’s self-defense theories by trying to prove the defendant was the primary aggressors. If successful, then the jury cannot consider whether the defendant acted in self-defense. The “aggressor “juror instruction exists to  nullify, circumvent and/or defeat a defendant’s self-defense claim.

State v. Kee is pertinent to the issue of whether words alone exchanged between two participants who willingly fight each other – whether words alone – allow the jury to decide if the defendant was the primary aggressor. Of course not! By themselves, words are not enough, and the Court of Appeals agreed. Indeed, words can be quite motivational for people to engage in mutual combat similar to the parties in State v. Kee. And by the way, mutual combat is lawful because Washington imposes no duty for either party to retreat from a fight.

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.

Drive-By Shooting Conviction Reversed

Bellingham Defense Attorney, Drive-By Shooting, felony, Firearm, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

5 Democratic senators point to NRA support for Kavanaugh in urging SCOTUS to drop gun case

In State v. Vasquez, the WA Court of Appeals held that the drive-by sentence aggravator is not met where a perpetrator ran 63 feet from his vehicle and around the corner of a grocery store prior to shooting and killing the victim.

BACKGROUND FACTS

Mr. Vasquez shot and killed Mr. Garcia as Mr. Garcia was seated in the front passenger side of a GMC Envoy parked at the Airport Grocery in Moses Lake, Washington. Mr. Garcia’s girlfriend was in the front driver’s seat and her five-year-old child was in the back seat, behind Mr. Garcia. Neither Mr. Garcia’s girlfriend nor her child were physically injured during the shooting.

At the crux of this case is the route Mr. Vasquez took to shoot Mr. Garcia.

For several minutes prior to the shooting, the Envoy was parked near the Airport Grocery’s front entrance. Mr. Vasquez then arrived at the scene in a Toyota pickup. The Toyota was parked on the side of the grocery, next to a fenced utility area, approximately 63 feet away from the Envoy.

Once the Toyota was parked, Mr. Vasquez ran from the pickup and hid behind the utility fence for nearly a minute. Mr. Vasquez then rushed around the corner of the grocery, across the front-side of the Envoy, and over to the area of the front passenger window of the Envoy. The front window was partially rolled down, exposing Mr. Garcia to Mr. Vasquez.

Mr. Vasquez shot and killed Mr. Garcia from point-blank range. Mr. Vasquez then retreated to the Toyota and it sped away. The entire shooting was captured on video by the grocery’s surveillance system. Approximately one minute and 16 seconds elapsed between the Toyota’s initial arrival and ultimate departure.

A jury convicted Mr. Vasquez of first degree murder with a drive-by shooting aggravator, along with several counts of drive-by shooting. Mr. Vasquez was sentenced to life imprisonment without parole for the aggravated first degree murder conviction. He also received a 60-month firearm enhancement. Mr. Vasquez appealed on arguments that the evidence was insufficient to prove a drive-by shooting.

COURT’S ANALYSIS & CONCLUSIONS

Washington’s drive-by shooting statute states, in pertinent part:

A person is guilty of drive-by shooting when he or she recklessly discharges a firearm as defined in RCW 9.41.010 in a manner which creates a substantial risk of death or serious physical injury to another person and the discharge is either from a motor vehicle or from the immediate area of a motor vehicle that was used to transport the shooter or the firearm, or both, to the scene of the discharge.

The legal question was whether the State’s evidence showed Mr. Vasquez was in the “immediate area” of the Toyota pickup truck at the time of the shooting. Viewing the evidence in the light most favorable to the State, the Court of Appeals held the “immediate area” requirement was not met.

The Court of Appeals explained that a drive-by shooting is commonly understood to involve shots fired from inside a vehicle, or from “within a few feet or yards” of the vehicle. In other words, the crime contemplates a shooter who is either inside a vehicle or within easy reach of the vehicle.

“Mr. Vasquez’s offense did not fall within either circumstance,” reasoned the Court of Appeals. It further reasoned that Mr. Vasquez was far from reach of the Toyota at the time he shot Mr. Garcia. “In fact, Mr. Vasquez had to traverse several intervening obstacles in order to get a clear shot at his victim,” said the Court. “Although Mr. Vasquez was in the immediate area of Mr. Garcia’s Envoy at the time of the shooting, he was not in the immediate area of the Toyota that had transported him to the scene. Mr. Vasquez’s offense therefore does not qualify as a drive-by shooting.”

The Court concluded that because Mr. Vasquez was neither inside the Toyota nor within immediate reach of the Toyota at the time of the shooting, the State failed to present sufficient evidence justifying Mr. Vasquez’s convictions for drive-by shooting as well as the drive-by shooting aggravator to Mr. Vasquez’s first degree murder conviction.

Consequently, the Court reversed Vasquez’s drive-by shooting convictions and aggravator.

My opinion? The circumstances of this case are certainly tragic. However, it’s not uncommon for Prosecutors to charge people for crimes which don’t fit the facts and circumstances. That’s why it’s extremely important to hire a qualified and competent defense attorney who knows and understands the law. Defense counsel must question the evidence and, when necessary, argue pretrial motions to dismiss charges where evidence is lacking.

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. Larson: Retail Theft With Extenuating Circumstances

Due Process, felony, Knapstad Motion, Retail Theft, Theft, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Wire Cutter and Stripper Tool | ICC

In State v. Larson wire cutters, which were used to sever the wire that attached a department store security device to a pair of Nike shoes, are a “device designed to overcome security systems” for purposes of convicting the defendant of Retail Theft with Extenuating Circumstances.

Defendant Zachary Larson attempted to steal a pair of shoes from a retail store. The shoes were equipped with a security device that was attached to the shoes by wire. Yet, Larson, using wire cutters that he had brought into the store, severed the wire and removed the security device. When Larson tried to leave the store, he was stopped by security employees and, subsequently, was charged with one count of Retail Theft with Extenuating Circumstances under RCW 9A.56.360(1)(b), which criminalizes the commission of retail theft while in possession of a “device designed to overcome security systems.”

While the case was pending, he argued a Knapstad motion seeking dismissal of the charge. Therein, he argued that, as a matter of law, wire cutters do not constitute a “device designed to overcome security systems.” The trial court denied his Knapstad motion. On December 18, the trial court found Larson guilty as charged. He was sentenced to 60 days of confinement. Larson appealed on the argument that the trial court improperly denied his Knapstad motion and that wire cutters do, in fact, constitute a device designed to overcome security systems.

The court disagreed with Larson and stated the following:

“The plain meaning of the statute reveals the legislature’s intent to punish thieves who, anticipating that the possession ofa device which may be able to foil a store’s security system will be expedient to their cause, commit retail theft while in possession of such a device. In recognition of the fact that wire cutters are designed to cut wire, which is a common feature ofsecurity systems, we hold that, within the meaning of former RCW 9A.56.360(1 )(b), wire cutters constitute a ‘device designed to overcome security systems.'”

The Court also reasoned that the Division II Court of Appeals decision in State v. Reeves, ___ Wn. App. ___, 336 P.3d 105 (2014) – a recent opinion which held that “ordinary pliers” do not constitute a device designed to overcome security systems – was wrongfully decided :

“To exclude wire cutters from the statute’s reach on the basis that wire cutters may be used in other settings to achieve different ends would frustrate the legislature’s intent, while providing those inclined to commit retail theft with an unmistakable incentive to employ “ordinary devices,” as characterized by the Reeves court, to pursue their nefarious ends. Surely, the legislature did not intend such a result.”

With that, the Court upheld Larson’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.

State v. Weller: Community Caretaking

Assault, Community Caretaking, Constitutional Rights, Due Process, Evidence, felony, law enforcement, Plain View, police, Probable Cause, Search and Seizure, Search Warrant, Violent Crime, Washington Court of Appeals, , ,

Community Caretaking: Police May Make Stop Without Reasonable Suspicion

In State v. Weller, the WA Court of Appeals decided an officers’ entry into a garage to privately interview children about their allegations of abuse was lawful under the health and safety check community caretaking exception to the warrant requirement. Also, the seizure of the board the children stated was used by the parents while beating the children, was lawful under the plain view exception to the warrant requirement.

Sandra and Jeffrey Weller had six children in their care. In 2011, CPS became suspicious that the Wellers were abusing the children. Eventually, CPS conducted a welfare check of the family home with the assistance of numerous police officers. The officers did not have a search warrant. Officer Aldridge asked if they could come inside and speak with Sandra and the children.

Sandra stepped back from the door and the officers entered the house. The officers attempted to talk privately with the twins. Officer Jensen and CW talked in one room. Officer Aldridge and CG talked in another room, and ultimately moved into the garage for greater privacy. Both children described being beaten repeatedly with a board.

Officer Aldridge was standing in the same place as when she entered the garage when she looked around and saw a board leaning against the garage wall in plain view. She asked the children if that was the board used to beat them, and they replied that it was. Officers saw what appeared to be bloodstains on the board. Based on her observations, Officer Aldridge decided to remove the twins and the other children from the Weller residence.

After speaking with the children, the State filed multiple charges against the Wellers, including several charges of second, third, and fourth degree assault, and several counts of unlawful imprisonment. At trial, the Wellers tried to suppress the evidence and dismiss the case on theories

The Wellers moved to suppress the board, arguing that it was seized during an unlawful search of their residence without a warrant. They argued that the emergency aid exception to the warrant requirement was inapplicable because there was no immediate threat of injury to any persons and that entry into the house was a pretext for a search for evidence of a crime.

However, the trial court denied the motion to suppress, concluding in a detailed oral ruling that the officers lawfully were in the garage under the community caretaking exception and that they were authorized to seize the board because it was in plain view.

The case proceeded to a jury trial. The jury found Jeffrey guilty on most counts and the trial court sentenced him for five counts of Assault Second Degree, one count of Unlawful Imprisonment, one count of Assault Third Degree of a Child, and two counts of Assault Fourth Degree. The jury also found Sandra guilty on most counts and the trial court sentenced her for four counts of Assault Second Degree and one count of Unlawful Imprisonment. The defendants appealed.

The Wellers argue that the officers seized the board used to beat CW and CG in an unlawful warrantless search of their garage, and therefore that the trial court erred in denying their CrR 3. 6 motion to suppress the board. The Court disagreed, and held that the trial court did not err when it concluded that ( 1) the officers’ entry into the garage to privately interview the children was lawful under the community caretaking function exception to the warrant requirement, and (2) the seizure of the board was lawful under the plain view exception to the warrant requirement. Some background on these legal principles is necessary.

WARRANTLESS SEARCHES

Both the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington State Constitution prohibit warrantless searches and seizures unless one of the narrow exceptions to the warrant requirement applies. The State bears the burden of demonstrating that a warrantless search or seizure falls within an exception to the warrant requirement.

 COMMUNITY CARETAKING

The community caretaking function exception to the warrant requirement arises from law enforcement officers’ community caretaking function and involves two aspects: officers rendering aid or assistance ( emergency aid exception) or making routine checks on health and safety (health and safety exception). Another exception to the warrant requirement is the plain view exception, which allows officers to seize an object if they are lawfully present in a constitutionally protected area and the object is in plain view.

A search pursuant to the community caretaking function exception must be totally divorced from  a criminal investigation. The exception does not apply where an officer’ s primary motivation is to search for evidence or make an arrest.

Here, the Court reasoned that the officers entered the garage because they were trying to find a private place to interview the children in conjunction with their welfare check. Nothing in the record suggests that the officers were searching the garage or looking for evidence.

HEALTH AND SAFETY CHECK INSPECTION

To invoke the health and safety check exception, the State must show that ( 1) the officer subjectively believed someone needed health or safety assistance, and (2) a reasonable person in the same situation would believe that there was a need for assistance, and ( 3) there was a reasonable basis to associate the need for assistance with the place searched. Next, the State must show that the encounter under this exception was reasonable, which depends upon a balancing of the individual’ s interest in freedom from police interference against the public’ s interest in having the police perform a community caretaking function.

Here, the Court reasoned that the three requirements for application of the health and safety check exception clearly were satisfied. The officers subjectively and reasonably believed that the Weller children needed health or safety assistance. A trained CPS investigator relayed to the officers her professional opinion that the Weller children were not safe and were expressing severe fear.

PLAIN VIEW

The ” plain view” exception to the warrant requirement applies when officers ( 1) have a valid justification for being in a constitutionally protected area, and ( 2) are immediately able to realize that an item they can see in plain view is associated with criminal activity. The test for determining when an item is immediately apparent for purposes of a plain view seizure is whether, considering the surrounding circumstances, the police can reasonably conclude that the item is incriminating evidence. Officers do not need to be certain that the item is associated with criminal activity – probable cause is sufficient.

Here, the Court decided the officers were lawfully present in the Wellers’ garage. Further, the surrounding facts and circumstances led the officers to believe that the board was evidence of a crime. As the welfare check progressed, the children said Mr. Weller periodically beat them with a board. Further, when the officers were in the garage, the children began to look for the board. And the children immediately confirmed that the board in the garage was in fact the board used to beat them. As a result, the Court held that the plain view exception to the warrant requirement applied to the officers’ seizure of the board.

The Court of Appeals upheld 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.

New Findings: Decline in Black Incarceration for Drug Offenses

Department of Corrections, Drug Offenses, Jail, Legislation, marijuana, Race & Law, Studies, , ,

INCARCERATION | BlackDemographics.com

For the first time in 25 years, since the inception of the “War on Drugs,” the number of African Americans incarcerated is state prisons for drug offenses has declined substantially.  According to a recent study released by The Sentencing Project, there exists a 21.6% drop in the number of blacks incarcerated for a drug offense.  This presents a decline of 31,000 people during the period 1999-2005.

Why the decrease?  The study shows that many states are softening their approach to crime by reconsidering overly punitive sentencing on defendants.  Diversionary programs are also being re-examined.  The changing approach is, not surprisingly, inspired by fiscal concerns.  Policymakers recognize that skyrocketing corrections costs cut into public support for higher education and other vital services.

Second, at the federal level, the U.S. Sentencing Commission has enacted changes in the sentencing guidelines for crack cocaine offenses, and members of Congress are considering proposals to reform the mandatory penalties for crack offenses.

My opinion?  Ironically, the economic recession has spurred positive changes in the criminal justice system.  Many lawmakers realize the foolishness behind incarcerating people for low-level drug offenses.  Also, I believe the “War on Drugs” has changed tactics.  Nowadays, police are more interested in busting defendants for methamphetamine (meth) than crack cocaine.  Meth is considered  a much larger risk to public safety and health.

Meth is also largely used/possessed by non-minorities.   This is partially because most meth labs are found in rural destinations; which have more Caucasians, and not so much in the inner city, where more minorities dwell.

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. Sutherby: Great Case Regarding Improper Prosecution and Ineffective Assistance of Counsel

Assault, Constitutional Rights, Ineffective Assistance, Prosecutorial Misconduct, Rape, Sentencing, Sex Crimes, Unit of Prosecution, Washington Supreme Court, , ,

Malicious Prosecution Cases in South Carolina - King Law

In State v. Sutherby, the WA Supreme Court threw out a Rape of a Child conviction for improper prosecution and ineffective counsel. Shortly before Christmas 2004, the Sutherby’s five-year-old granddaughter (“L.K.”) stayed with them for two nights at their Grays Harbor home. Based on the girl’s accusations, Mr. Sutherby was arrested and charged with multiple sex offenses to include first degree rape of a child and first degree child molestation.

A subsequent search of his personal computer found child pornography, and he was charged with 10 counts of possession of depictions of minors engaged in sexually explicit conduct. He was convicted by a jury on all counts and appealed.

The Court here considered two issues: “(1) what is the proper unit of prosecution for possession of child pornography under former RCW 9.68A.070 (1990), and (2) did Sutherby receive ineffective assistance of counsel due to his trial attorney’s failure to seek a severance of the child rape and molestation charges from the possession of child pornography charges?”

Sutherby argued that he should have been sentenced on only one count of possession of child pornography under the criminal statute, formerly RCW 9.68A.070, rather that separate counts for each image. The court noted that the U.S. and Washington constitutions both protect a defendant from being punished more than once for the same offense. The statute provided “[a] person who knowingly possesses visual or printed matter depicting a minor engaged in sexually explicit conduct is guilty of a class C felony.”

The court said that “any” is vague, and determined defendants who possess multiple images should only be charged with a single count of possession. The court remanded the sentencing of Sutherby for a single count of possession.

Sutherby also sought reversal of his convictions for child rape and child molestation based on his trial attorney’s failure to move for severance of the child pornography counts from these charges. As the court noted, severance of charges is important when there is a risk that the jury will use the evidence of one crime to infer the defendant’s guilt for another crime or to infer a general criminal disposition.

The case against Sutherby for possession of child pornography was strong, and could have influenced the jury on the rape and molestation charges. The court agreed that Sutherby demonstrated ineffective assistance of counsel based on his trial attorney’s failure to seek severance of the charges. The Supreme Court reversed Sutherby’s convictions for child rape and molestation and remanded for retrial.

My opinion?  Yes, society HATES sex crimes; especially when children are possibly involved.  Here, however, the Supremes correctly looked beyond the nature of the crime and addressed how the case was botched by the Prosecutor and defense attorney alike.  Clearly, the Supremes sent a message: stacking charge after charge is, simply, unconstitutional.  Multiple images does not = multiple charges!  We creep into the realm of  unlawful Double Jeopardy.

Additionally, State v. Sutherby teaches defense attorneys about ineffective assistance of counsel.  Oftentimes, prosecutors will try adding additional charges on totally unrelated events before trial.  This tactic, if successfully done, makes juries suspicious that the defendant “must be a bad person, otherwise they wouldn’t have acquired all these criminal charges.”

In other words, the juries become prejudiced toward the defendant, and might decide the cases accordingly.  This type of outcome kills justice.  Defense attorneys must avoid sloppiness and BE CAREFUL.  We cannot allow the State to unfairly prejudice our clients at the 11th hour before 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.

 

Closing Prisons, Slashing Sentences Eyed to Balance Budget

Department of Corrections, Jail, Probation, Uncategorized, , ,

The Legislature endangered the public by botching criminal-justice reform

In a sour economy, Washington and other states’ lawmakers are considering budget cuts that would close prisons, loosen sentencing guidelines and slash probation terms.  Lawmakers in Olympia are looking for nearly $4 billion in spending cuts.

My opinion?  Make lemonade out of lemons.  Perceive our budget woes as opportunities to revamp our criminal justice system.  Community service helps everyone.  Jailing low-level offenders helps no one.

Studies show the most expensive and least productive response to drug, mental-health and poverty-driven crime is full confinement. The most effective and most cost-productive response is community-based work, education and retraining.

True, there are some very violent and nasty defendants who probably should be incarcerated (even though they STILL deserve the benefits of a system which adamantly preserves their constitutional rights).  However, most people in the criminal-justice system are not in that violent category. Most are caught up in generations of a lifestyle where low-level crime is the accepted norm. It is these people who are unnecessarily sanctioned with long jail/prison sentences, parole, probation, etc.

My hope is that now, when we are asked to re-evaluate our use of limited resources, we will make the change for a broader, more socially beneficial response to crime.  Don’t spend hundreds of millions on penal institutions that give nothing back.  Instead, spend tens of millions on people.  Schools, community centers and community work programs are cheaper than jails.

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.