Tag Archives: Whatcom County Criminal Defense Attorney

DOJ Settles ADA Lawsuit

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

Deaf community and Police: Interacting with police - YouTube

The U.S. Department of Justice issued a press release saying it reached agreements with Whatcom County to ensure individuals who are deaf or hard of hearing are able to effectively communicate during encounters with the criminal justice system.

Two agreements resolved claims that the Whatcom County Sheriff’s Office and the Public Defender’s Office failed to ensure effective communication with a defendant who is deaf during the investigation, arrest, and advice of counsel phases of his criminal justice experience.

The resolution calls for the aforementioned offices to make a number of changes to the way in which they interact with people who are deaf or hard of hearing. These changes include developing written policies, monitoring and logging interactions, contracting with sign language interpreters and reporting back to DOJ on their compliance with the agreements.

“When a person’s freedom is at stake, protecting rights guaranteed by the Americans with Disabilities Act is paramount . . . I’m pleased the Whatcom County Public Defender’s Office and the Sheriff’s Office are taking these steps to make sure they protect the rights of all area residents who are deaf or hard of hearing.” ~U.S. Assistant Attorney Tessa M. Gorman

According to the settlement agreement with the Whatcom County Sheriff, a Whatcom County resident filed a complaint that his rights under the Americans with Disabilities Act (ADA) were violated when he was questioned and arrested by Sheriff’s deputies after a dispute with his tenant.  The investigation found that the deputies knew the complainant was deaf and communicated via American Sign Language (ASL).  Nevertheless, when investigating a complaint from the man’s tenant, they failed to use an interpreter and instead relied on hand-written notes to communicate.  The complainant was arrested and taken to jail without effective communication with law enforcement and without an ability to tell his side of the story.

As part of the settlement the Sheriff’s Office is paying the complainant $60,000.

Under the terms of the settlement with the Whatcom County Sheriff’s Office (WCSO), there will be significant improvements in its ADA policies.  The WCSO will hire an ADA coordinator to ensure implementation and monitoring of new policies.  WCSO will train staff on the policies and compile logs on interactions with residents who need auxiliary services such as sign language interpretation.  The WCSO will enter into contracts with ASL service providers so that interpretation services are available at all times.  The WCSO will prominently post information on interpreter services and the contact information for ADA services.  Every six months for a two-year period WCSO will report back to the U.S. Attorney’s Office on the requests for and use of interpreter services.

The agreement also calls for WCSO to modify its handcuffing policy for persons who are deaf or hard of hearing.  Such individuals are to be handcuffed in the front of their body unless there is a reasonable safety risk.  In each instance where a staff member maintains there is such a risk, the interaction must be logged and reported to DOJ in the six-month review.

Under the terms of the resolution with Whatcom County, the Public Defender’s Office will ensure that, among other things, there is a contract in place for interpreter services in person or via video to ensure that defendants who are deaf or hard of hearing are able to effectively communicate with their attorneys.

My opinion? These new policies are a step in the right direction. It violates civil rights for deaf people to be denied interpreter services and/or access to an attorney when confronted by police.

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

Operation Dry Water

Bellingham Defense Attorney, Boating Under the Influence, misdemeanor, Mount Vernon Criminal Defense Attorney, Operation Dry Water, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , ,

B.U.I. - Boating Under The Influence

The Washington State Parks released a News Flash regarding Operation Dry Water — a nationally coordinated effort that focuses on Boating Under the Influence (BUI) awareness and enforcement. In short, boaters will notice an increase in patrols July 2- 4, across Washington state.

The Washington State Parks Boating Program, safety advocates and law enforcement agencies are asking boaters to help keep everyone safe by not consuming alcohol or marijuana while out on the water — especially when operating a boat or paddle craft.

“Operating any vehicle or vessel under the influence is illegal and unsafe,” said Matt Stowers, Marine Law Enforcement coordinator for the Boating Program. “However, it’s arguably more dangerous on the water. Research shows it takes less alcohol to impair you on the water than it does on land — one beer on land equals three beers on the water.”

According to the U.S. Coast Guard, Boating Under the Influence is the leading known contributing factor in fatal recreational boating accidents.

In Washington state, it’s illegal to use any substance that impairs a person’s ability to operate a boat. Similar to DUI, Washington BUI law applies to all boats, including kayaks, canoes, rowboats, stand-up paddleboards, and inflatable fishing rafts. Some key things for boaters to know:

  • State law allows law enforcement officers to require boaters suspected of operating a boat while intoxicated to submit to a breath or blood test.
  • Refusing to submit to a test is a civil infraction with a maximum fine of $2,050.00.
  • The penalty for operating a boat under the influence is a gross misdemeanor punishable by a maximum fine of $5,000 and 364 days in jail.
  • Additionally, a BUI is considered a prior offense if there are later convictions for driving under the influence (DUI).

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.

Federal Executions Halted

Bellingham Defense Attorney, Death Penalty, Federal Crimes & Prosecutions, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

US federal executions halted over 'potentially unlawful' method - BBC News

The Department of Justice reports that Attorney General Merrick Garland ordered a temporary stop Thursday to scheduling further federal executions.

In a memo to senior officials, he said serious concerns have arisen about the arbitrariness of capital punishment, its disparate impact on people of color, and “the troubling number of exonerations” in death penalty cases.

“The Department of Justice must ensure that everyone in the federal criminal justice system is not only afforded the rights guaranteed by the Constitution and laws of the United States but is also treated fairly and humanly.” ~Attorney General Merrick Garland

Court fights over the traditional three-drug memo for carrying out lethal injections, and a shortage of one of those drugs, brought federal executions to a halt for nearly two decades.

But in 2019, under the Trump Administration then-Attorney General William Barr directed federal prison officials to begin carrying lethal injections using a single drug — a powerful sedative. Using that method, 13 people on federal death row were executed between July 2020 and January 2021.

Garland ordered a review of the revised lethal injection protocol and directed the Bureau of Prisons to stop using that method while that is underway. He also said the department would study a Trump administration regulation that allowed federal prisons to carry out executions in any manner authorized by the state where the death sentence was imposed.

Garland’s memo did not address whether the federal government would continue to seek the death penalty in criminal cases. However, no federal executions will be scheduled while the reviews are pending.

The Attorney General’s memorandum can be found here.

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.

Exigent Circumstance DUI

Bellingham Defense Attorney, DUI, Exigent Circumstances, Fourth Amendment, misdemeanor, Mount Vernon Criminal Defense Attorney, Search and Seizure, Skagit County Criminal Defense, United States Supreme Court, Whatcom County Criminal Defense, , , , ,

William's Wooden Garage (Essex) | Quick-garden.co.uk

In Lange v. California, the United States Supreme Court held that the pursuit of a fleeing misdemeanor DUI suspect does not always qualify as an Exigent Circumstance justifying a warrantless entry into a person’s garage.

FACTUAL BACKGROUND

One night, the Defendant Mr.  Lange drove by a California highway patrol officer while playing loud music. The officer followed Lange and soon after turned on his overhead lights to signal that Lange should pull over. Rather than stopping, Lange drove a short distance to his driveway and entered his attached garage.

The officer followed Lange into the garage. He questioned Lange and, after observing signs of intoxication, put him through field sobriety tests. A later blood test showed that Lange’s blood-alcohol content was three times the legal limit. The State charged Lange with the misdemeanor of DUI.

Lange moved to suppress the evidence obtained after the officer entered his garage, arguing that the warrantless entry violated the Fourth Amendment. The Superior Court denied Lange’s motion, and its appellate division affirmed. The California Court of Appeal also affirmed. It reasoned that the pursuit of a suspected misdemeanant was always permissible under the exigent circumstances exception to the warrant requirement. The California Supreme Court denied review. The United States Supreme Court (USSC) granted it.

ANALYSIS & CONCLUSIONS

The USSC held that under the Fourth Amendment, pursuit of a fleeing misdemeanor suspect does not always—that is, categorically—justify a warrantless entry into a home.

The Court began by saying the Fourth Amendment ordinarily requires that a law enforcement officer obtain a judicial warrant before entering a home without permission. But an officer may make a warrantless entry when the exigencies of the situation, considered in a case-specific way, create a compelling need for official action and no time to secure a warrant. The Court has found that such exigent circumstances may exist when an officer must act to prevent imminent injury, the destruction of evidence, or a suspect’s escape.

The Court reasoned that misdemeanors run the gamut of seriousness, and they may be minor. States tend to apply the misdemeanor label to less violent and less dangerous crimes. Furthermore, it reasoned that when a minor offense (and no flight) is involved, police officers do not usually face the kind of emergency that can justify a warrantless home entry.

“Add a suspect’s flight and the calculus changes—but not enough to justify a categorical rule,” said the Court. It further reasoned that in many cases, flight creates a need for police to act swiftly. But no evidence suggests that every case of misdemeanor flight creates such a need.

“When the totality of circumstances shows an emergency—a need to act before it is possible to get a warrant—the police may act without waiting. Those circumstances include the flight itself. But pursuit of a misdemeanant does not trigger a categorical rule allowing a warrantless home entry.” ~United States Supreme Court.

The Court followed up by saying In short, the common law did not have — and does not support — a categorical rule allowing warrantless home entry when a suspected misdemeanant flees.  With that, the Court vacated Mr. Lange’s criminal conviction.

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

Tackle or Terry Stop?

Bellingham Defense Attorney, felony, Firearm, Mount Vernon Criminal Defense Attorney, Search and Seizure, Skagit County Criminal Defense, Terry Stop, Whatcom County Criminal Defense, , , , ,

Man escapes NYPD car before being tackled Video - ABC News

In State v. Pines, the WA Court of Appeals held that police officers exceeded the scope of a Terry Stop when, with no observations or information from which to believe the suspect was carrying a weapon, they followed the suspect into a restaurant, tackled him to the ground, held him down by the neck and head, and handcuffed him.

BACKGROUND FACTS

On March 23, 2018, Officer Sausman was in his vehicle when he identified the defendant Mr. Pines driving a black BMW. Sausman recognized Pines and was aware that Pines had a warrant for Residential Burglary and Domestic Violence charges. Sausman also knew that Pines was previously convicted of a felony.

Sausman followed Pines to Columbia City, where Pines parked his vehicle and entered a Pagliacci Pizza restaurant. Sausman advised the uniformed arrest team that Pines was in the restaurant.

Detective Miller was one of three uniformed officers that entered the restaurant to contact Pines. As the officers entered, Pines began moving toward the other door. The officers tackled Pines to the ground, holding him down by the neck and head, and handcuffed him. The officers then frisked Pines and found a handgun in his jacket pocket. The State charged Pines with Unlawful Possession of a Firearm in the First Degree.

Pines moved to suppress the handgun during a pretrial CrR 3.6 hearing. The trial court denied Pines’s motion to suppress. Later, during a bench trial, the trial court found Pines guilty and imposed a sentence of 24 months in prison.

Pines appealed on arguments that that the trial court erred in finding that the search and discovery of his firearm was a lawful Terry Stop, and thus denying his motion to suppress. Pines contends that his seizure amounted to a custodial arrest and that the police lacked probable cause at the time of his arrest.

COURT’S RATIONALE & CONCLUSIONS

The Court of Appeals said that under the Washington Constitution, warrantless searches are per se unreasonable unless one of the narrowly drawn exceptions to the warrant required applies. Furthermore, said the court, if the evidence was seized without authority of law, it is not admissible in court. Finally, it reasoned that a person is seized when an officer, by physical force or show of authority, restrains the person’s freedom of movement. The restraint must be such that a reasonable person would not believe they were free to leave.

“The State argues, and the trial court agreed, that Pines’s seizure and subsequent search was the result of a valid Terry Stop,” said the Court of Appeals. “We disagree.”

The Court of Appeals elaborated that under Terry v. Ohio, a police officer may temporarily detain a person based on a reasonable suspicion that the person is or has been involved in a crime.

“In evaluating the reasonableness of an officer’s suspicion, we look to the totality of the circumstances known to the officer,” said the Court of Appeals. “We determine the reasonableness based on an objective view of the known facts, not the officer’s subjective belief or ability to correctly articulate his suspicion in reference to a particular crime. The detention must not exceed the duration and intensity necessary to dispel the officer’s suspicions.”

The Court relied on State v. Mitchell  – an important Washington case on Terry Stops – to determine whether the officer’s interactions with Mr. Pines was lawful:

“Here, in stark contrast with Mitchell, the arresting officers did not observe Pines carrying a weapon. Indeed, as Detective Miller testified, they had no reason to contact Pines except for their belief that he might have a warrant.

Further, unlike Mitchell, where the officer was alone at night, there were three uniformed police officers along with Detective Sausman at the scene. No officer testified that they feared for their safety prior to Pines’s seizure or that they had seen a weapon prior to their search. And finally, unlike Mitchell where the defendant was told to lie down without contact from the officer, the three uniformed officers forcefully took Pines to the ground and handcuffed him, while Detective Sausman yelled that Pines was under arrest on a felony warrant.” ~WA Court of Appeals

With that, the WA Court of Appeals held that a reasonable person in Pines’s situation would consider themselves under custodial arrest. “Pines’s seizure exceeded the scope of a valid Terry Stop. The trial court erred in concluding the search was valid under Terry.”

The Court of Appeals also reasoned that although the officer’s knowledge of a month-old arrest warrant would support a properly limited Terry detention, it was insufficient to provide probable cause for arrest.  “The month gap between the officer learning of the arrest warrant and the arrest was too long – the suspect could have been arrested and posted bail during the 30-day interval,” said the Court.

The Court dismissed Pines’s conviction with prejudice.

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

New Whatcom County District Court Judge To Be Appointed

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

Federal Judge Denies Trump Lawsuit In Wisconsin | Wisconsin Public Radio

News reporter Robert Mittendorf of the Bellingham Herald reports that Whatcom County Council members will soon appoint a new District Court judge. Applications are being accepted for a vacancy on the Whatcom County District Court that opened this month when Judge David Grant recently retired before his term ended.

Whatcom County District Court consists of two judges, an appointed commissioner and their staff. The court hears cases that include criminal misdemeanors, general civil actions and small claims, infractions including traffic and code violations, and miscellaneous other cases, according to the Whatcom County website.

Grant was a deputy prosecuting attorney in Whatcom County for 18 years before his appointment to the District Court bench in 2004, according to elections records. He ran unopposed in 2006, 2010, 2014 and 2018.

“With the aid of jail staff and administration, the (District) Court has been able to implement an array of alternatives to traditional incarceration,” Grant wrote in the 2018 voter pamphlet.

“Sentenced offenders typically serve sentences on electronic home detention or on community service or work programs. For those requiring some form of pretrial supervision, many are released pending trial with minimally invasive forms of electronic or personal reporting alternatives delivered through jail or probation staff. I am proud to be a part of this effort.” ~Judge David Grant

Judge Grant was an excellent judge. I’ve had numerous trials before him, the most memorable ones involving  allegations of Assault and Domestic Violence. Judge Grant ruled with empathy, discipline, humor and evenhandedness. I truly enjoyed conducting trials in his courtroom. Judge Grant, you’ll be missed!

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.

As Lumber Prices Increase, Theft May Follow

Bellingham Defense Attorney, felony, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Theft, Whatcom County Criminal Defense, , , , ,

Deputies arrested a man on June 1 who they say tried to steal 32 pieces of lumber, worth more than $2,300, from a Shoreline lumber yard. (Courtesy of the King County Sheriff’s Office)

Interesting article by reporter of the Seattle Times reports that the increase in lumber prices have more than tripled over the past year. Therefore, it was only a matter of time before thieves took note, said the King County Sheriff’s Office.

Earlier this month, deputies arrested a man trying to get away with more than $2,300 worth of wood from a locked lumber yard, the sheriff’s office said Thursday in a Facebook post.

“We’ve seen this with copper prices a number of years ago,” King County sheriff Sgt. Tim Meyers told KING 5. “We saw this with catalytic converter thefts as those minerals spiked, and our concern is that lumber thefts are going to be the new catalytic converter thefts as thieves try to profit in this spike in cost.”

Catalytic converters, however, don’t usually require a truck to cart away.

According to the article, on June 1, an employee of Dunn Lumber on North 185th Street in Shoreline called dispatchers around 3:30 a.m. The employee was watching a live camera feed of the lumber yard, where a suspect could be seen taking 32 pieces of lumber from the locked space and stacking them up near an entry point where a Dodge Durango sat waiting, police said. The man was arrested and booked into the King County Jail for investigation of commercial burglary.

As lumber prices hit all-time highs, theft seems to be on the rise – and not just in Washington. In early May, a Texas man was arrested for stealing an amount of lumber greater than $500 but less than $20,000. In April, Tennessee’s Department of Agriculture warned landowners to secure their properties as lumber thefts are rising in the state. On May 21, 144 sheets of plywood – valued at over $10,000 – were stolen from a job site in Florida. 

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

U.S. Prison Trends

Bellingham Defense Attorney, Jail, Juvenile, Mount Vernon Criminal Defense Attorney, Prison, Race & Law, Sentencing, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , ,

Mass Incarceration, Then and Now | The New Yorker

The Sentencing Project devised a fact sheet which provides a compilation of major developments in the criminal justice system over the past several decades. Some highlights are as follows:

  • Mass Incarceration – The United States is the world’s leader in incarceration with 2 million people currently in the nation’s prisons and jails — a 500% increase over the last forty years.
  • Drug Policy – At the federal level, people incarcerated on a drug conviction make up nearly half the prison population. At the state level, the number of people in prison for drug offenses has increased nine-fold since 1980, although it has begun declining in recent years.
  • Racial Disparities – Black men are six times as likely to be incarcerated as white men and Latinos are 2.5 times as likely. For Black men in their thirties, about 1 in every 12 is in prison or jail on any given day.
  • Youth – Although youth detention populations are declining, youth of
    color enter the system much more frequently than white youth and are more likely to be sentenced to harsher terms of punishment. In addition, young people are transferred to the adult system each year and tried as if they were adults, and many are sent to adult prisons and jails to serve their sentences.
  • Felony Disenfranchisement – As of 2020, 5.2 million Americans were unable to vote due to state felony disenfranchisement policies.
  • Life Sentences – The number of people serving life sentences endures even while serious, violent crime has been declining for the past 20 years. This population has nearly quintupled since 1984. One in seven people in prison are serving life with parole, life without parole, or virtual life (50 years or more).

The Sentencing Project is a non-profit agency that promotes effective and humane responses to crime that minimize imprisonment and criminalization of youth and adults by promoting racial, ethnic, economic, and gender 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.

Discarded DNA Admissible

Bellingham Defense Attorney, DNA, Evidence, felony, Homicide & Manslaughter, Kidnapping, law enforcement, Mount Vernon Criminal Defense Attorney, Rape, Search and Seizure, Sex Crimes, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

I 100% volunteered to do it': How bakery worker got DNA to crack 30-year-old murder case - ABC News

In State v. Bass, the WA Court of Appeals held the admission of DNA profiles developed from a plastic cup and a soda can that the defendant discarded in a garbage can at his place of employment was proper.

BACKGROUND FACTS

In November 1989, 18-year-old Amanda Stavik, a freshman at Central Washington University, returned home to rural Whatcom County to celebrate Thanksgiving with her family. On Friday, November 24, 1989, Stavik decided to go for a run with the family dog, Kyra. Her route took her down the defendant Timothy Bass’s residence. She never returned home.

On Monday, November 27, 1989, law enforcement found Stavik’s naked body in shallow, slow-moving water of the Nooksack River. During the autopsy, Whatcom County medical examiner Dr. Gary Goldfogel found semen in Stavik’s vagina and, based on the sperm count, concluded sexual intercourse had occurred no more than 12 hours before her death. This evidence led the State to conclude that someone had kidnapped and raped Stavik while she was out on her Friday afternoon run and that she had died while fleeing her captor.

Dr. Goldfogel preserved the samples he collected and sent them to the FBI and the Washington State Patrol Crime Lab for analysis. The Crime Lab developed a male deoxyribonucleic acid (DNA) profile from the sperm. The police investigation led to several suspects whom they later excluded when their DNA did not match the DNA in the sperm sample. Eventually, the case went cold.

In 2009, Detective Kevin Bowhay reopened the investigation and began asking for DNA samples from anyone who lived in the area or who may have had contact with Stavik near the time of her death. Over the course of the investigation, Det. Bowhay and his team collected more than 80 DNA samples for testing.

In 2013, Det. Bowhay asked Bass for a DNA sample. When Det. Bowhay indicated he was investigating Stavik’s death, Bass acted as if he did not know who she was, “looked up kind of, um, kind of like he was searching his memory” and said “oh, that was the girl that was found in the river.” Bass told Det. Bowhay that he did not really know Stavik and initially said he did not know where she lived. Bass refused to provide a DNA sample.

Bass’s refusal of a DNA sample raised suspicions. At this time, Bass was working as a delivery truck driver for Franz Bakery. Detective Bowhay reached out to Kim Wagner, the manager of the Franz Bakery outlet store. The detective informed Wagner he was looking for items that Bass might cast off that may contain his DNA.

In August 2017, Ms. Wagner saw Bass drink water from a plastic cup and throw the cup away in a wastebasket in the bakery’s employee break room. She collected that cup and stored it in a plastic bag in her desk. Two days later, she saw Bass drink from a soda can and, again, after he discarded it in the same trash can, she retrieved it and stored it with the cup. Det. Bowhay did not direct Wager to take any items and did not tell her how to handle or package these items.

Wagner contacted Det. Bowhay via text to let him know she had two items Bass had discarded in the garbage. Det. Bowhay met Wagner in the Franz Bakery parking lot, picked up the items, and sent them to the Washington State Crime Lab for analysis. The Crime Lab confirmed that the DNA collected from Bass’s soda can and cup matched the male DNA collected from the semen in Stavik’s body.

The State arrested Bass and charged him with first degree felony murder, rape and kidnapping. In pretrial motions, the trial court denied Bass’s motion to suppress the DNA evidence obtained from items Wagner collected at the Franz Bakery. In 2019, a jury convicted Timothy Bass of all charges.

On appeal, Bass challenged, among other things, the admissibility of DNA evidence linking him to the crime. His argument on appeal was that Wagner acted as a state agent when she collected his discarded items without a warrant.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals began by saying the Exclusionary Rule – a law that prohibits the use of illegally obtained evidence in a criminal trial – does not apply to the acts of private individuals. However, evidence discovered by a private citizen while acting as a government agent is subject to the rule.

“To prove a private citizen was acting as a government agent, the defendant must show that the State in some way ‘instigated, encouraged, counseled, directed, or controlled’ the conduct of the private person.” ~WA Court of Appeals.

The Court further reasoned that the mere knowledge by the government that a private citizen might conduct an illegal private search without the government taking any deterrent action [is] insufficient to turn the private search into a governmental one. For an agency relationship to exist, there must be a manifestation of consent by the principal [the police] that the agent [the informant] acts for the police and under their control and consent by the informant that he or she will conduct themselves subject to police control.

Consequently, the Court of Appeals rejected Bass’s argument and upheld the trial court’s findings that Ms. Wagner was not an agent at the time she pulled Bass’s cup and soda can from the trash and gave it to police:

“Det. Bowhay and Wagner both testified that Det. Bowhay did not ask or encourage Wagner to look for items to seize and did not tell her what type of items to take. Wagner testified Det. Bowhay did not instruct her to find an item containing Bass’s saliva; she made that assumption based on her husband’s experience in doing an ancestry DNA test and on watching television crime shows. Wagner confirmed that Det. Bowhay did not encourage her to find Bass’s DNA and gave her no guidance in how to do so.” ~WA Court of Appeals.

The co-worker who pulled the cup and soda can from the trash, was not acting as a government agent when she retrieved the items. The co-worker, not the detective, conceived of the idea of watching the defendant to see whether he discarded any items at work and the detective did not tell her how to handle any items collected.

With that, the Court concluded that Detective Bowhay did not direct, entice, or control Wagner and Wagner was not acting as a state agent when she retrieved Bass’s cup and soda can from the workplace trash can. “These findings in turn support the legal conclusion that Wagner’s seizure of Bass’s discarded items and the DNA evidence was not the fruit of an unlawful search.” The Court upheld Bass’s convictions.

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

Supreme Court Sides with Police Officer who Improperly Searched License Plate Database

Bellingham Defense Attorney, Computer Fraud, Federal Crimes & Prosecutions, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Technology, United States Supreme Court, Whatcom County Criminal Defense, , , ,

CA police officers keep jobs despite criminal convictions | The Sacramento Bee

In Van Buren v. United States, the U.S. Supreme Court held that defendant Nathan Van Buren, a Georgia police officer Buren, did not violate the nation’s top computer crime law when he searched a license plate database for non-official purposes.

BACKGROUND FACTS

Former Georgia police sergeant Nathan Van Buren used his patrol-car computer to access a law enforcement database to retrieve information about a particular license plate number in exchange for money. Van Buren agreed. The requestor – a third party who offered to pay him to search the database – was an undercover FBI informant. Van Buren used his own valid credentials to perform the search. However, his conduct clearly violated a department policy against obtaining database information for non-law-enforcement purposes.

Again, unbeknownst to Van Buren, his actions were part of a FBI sting operation. Van Buren was charged with a felony violation of the Computer Fraud and Abuse Act of 1986 (CFAA), which subjects to criminal liability anyone who “intentionally accesses a computer without authorization or exceeds authorized access.” 18 U. S. C. §1030(a)(2). A jury convicted Van Buren, and the lower federal District Court sentenced him to 18 months in prison.

Van Buren appealed his conviction to the Eleventh Circuit Court of Appeals, arguing that the “exceeds authorized access” clause applies only to those who obtain information to which their computer access does not extend, not to those who misuse access that they otherwise have. Consistent with Eleventh Circuit precedent, the panel held that Van Buren had violated the CFAA.

Van Buren appealed again, this time to the U.S. Supreme Court.

COURT’S RATIONALE & CONCLUSIONS

In a 6-3 majority opinion penned by Justice Amy Coney Barrett, the Court held that Van Buren’s conduct did not violate the CFAA when he searched a license plate database for non-official purposes.

Justice Barrett wrote that Van Buren’s conduct “plainly flouted” his department’s policy, which authorized him to obtain database information only for law enforcement purposes.
“The parties agree that Van Buren accessed a computer with authorization and obtained information in the computer,” wrote Justice Barrett.  “They dispute whether Van Buren was entitled so to obtain that information.”
Regarding that specific issue, Justice Barrett reasoned the provision of the law at issue does not cover those who have improper motives for obtaining information that is otherwise available to them.  And regarding the issue of whether Van Buren violated the CFAA  – the truly important legal issue of the case –  Justice Barrett wrote “he did not.”
“The relevant question, however, is not whether Van Buren exceeded his authorized access but whether he exceeded his authorized access as the CFAA defines that phrase. For reasons given elsewhere, he did not.” ~U.S. Supreme Court Justice Barrett, Majority Opinion

“To top it all off,” she wrote, the government’s expansive interpretation of the law “would attach criminal penalties to a breathtaking amount of commonplace computer activity.” Simply checking personal email or reading the news on a work computer would be considered a crime, Barrett added.

“The Government’s interpretation of the “exceeds authorized access” clause would attach criminal penalties to a breathtaking amount of commonplace computer activity. For instance, employers commonly state that computers and electronic devices can be used only for business purposes. On the Government’s reading, an employee who sends a personal e-mail or reads the news using a work computer has violated the CFAA.” ~U.S. Supreme Court Justice Barrett, Majority Opinion

Finally, Justice Barrett reasoned that the Government’s prosecution would also inject arbitrariness into the assessment of criminal liability, because whether conduct like Van Buren’s violated the CFAA would depend on how an employer phrased the policy violated.

With that, the U.S. Supreme Court reversed Van Buren’s criminal conviction.

THE DISSENT

In his dissent, Justice Thomas compared Van Buren’s actions to a valet charged with parking a car, writing that the law should have covered the police officers’ actions. The valet, Thomas wrote, may “take possession of a person’s car to park it, but he cannot take it for a joyride,” Thomas wrote. He noted that Van Buren had permission to retrieve license plate information, but only for “law enforcement purposes.”
“When the police officer accessed the database in exchange for a bribe from an acquaintance, he exceeded authorized access under the law . . . Without valid law enforcement purposes, he was forbidden to use the computer to obtain that information.” ~ U.S. Supreme Court Justice Thomas, Dissenting Opinion.
In another example, Thomas said that an employee may be entitled to pull the alarm in the event of a fire, “but he is not entitled to pull it for some other purpose, such as to delay a meeting for which he is unprepared.”
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.