Civil Protection Order

No Washington State Constitution Protection Against Use of Recorded Jail Calls in Criminal Case

September 14, 2020 | by Blair & Kim, PLLC

Article I, section 7, of the Washington State Constitution protects individuals from warrantless searches into their private affairs. Courts must consider what type of information may be discovered through the government’s action and how the interest being asserted has been treated in the past. A defendant in a Washington criminal case recently challenged his conviction on the grounds the state had violated his right to be free from intrusion into his private affairs.

The defendant was arrested for violating a domestic violence no contact order prohibiting him from contacting his wife. The order had been modified to allow the parties to communicate by phone, text, and email, but the detective told him the court would probably issue a new no contact order that would not allow phone contact. The trial court did so the next day.

There is a sign by the jail phone informing inmates calls “are recorded and subject to monitoring.” There is also an automated message that warns the caller and recipient that the “call is subject to recording and monitoring.” The detective searched for the defendant’s calls and found he had called his wife from the jail phone on four different days. The state charged him with four counts of felony domestic violence court order violation.

Washington Appeals Court Affirms Violation of No-Contact Order Conviction Supported by Video Surveillance

July 7, 2020 | by Blair & Kim, PLLC

Article I, section 7 of the Washington State Constitution provides individuals a privacy right that is greater than the protection provided by the Fourth Amendment to the U.S. Constitution. A search occurs under article I, section 7, when the government disturbs a citizen’s privacy interests that the citizen should be entitled to have safe from government interference without a warrant. Courts consider the nature and extent of the information the government may obtain through its conduct. An officer observing something through his or her own senses is not a search under this section, if the officer is in a location he or she is lawfully allowed to be. Officers may use tools that enhance their natural senses, such as binoculars or flashlights, but equipment that does more than enhance the senses may require a warrant. Law enforcement needs a warrant to use infrared thermal devices to observe heat patterns in a home or to track a private vehicle with a GPS device.

In a recent case, a defendant challenged his conviction of two counts of felony violation of a domestic violence no-contact order that involved video surveillance evidence. He had previously pleaded guilty to misdemeanor counts of violation of a domestic violence no-contact order under a previous order. According to the appeals court’s opinion, a detective initiated an investigation after an investigator with the Prosecuting Attorney’s Office encountered the defendant in the parking lot of his wife’s apartment building. The detective had surveillance cameras installed on a telephone pole. In the videos, she saw someone she believed to be the defendant walking toward the defendant’s wife’s apartment. The police then obtained a search warrant. When they executed the warrant, they found the defendant standing outside an open window. They also found his mail and clothes in the bedroom. He was arrested and charged with residential burglary and two counts of felony violation of a domestic violence order.

The defendant sought to suppress the video surveillance evidence, arguing the police violated his rights under both article I, section 7, and the Fourth Amendment. He also argued the police were not allowed to install the surveillance cameras on telephone poles. The trial court found the cameras were directed to public areas and the parking lot, not the defendant’s wife’s apartment. The court also found the defendant did not have standing to raise the telephone pole issue. The trial court denied the defendant’s motion to suppress the video evidence.

Washington Stalking Civil Protection Orders

May 21, 2020 | by Blair & Kim, PLLC

A court may issue a Washington protection order based on stalking behavior. (RCW 7.92.100) Stalking includes repeated actual or attempted contact with the victim, tracking the victim, monitoring the victim’s actions or following the victim. The respondent’s conduct must serve no legal purpose and be conduct that the respondent knows or reasonably should know would intimidate, frighten, or threaten a reasonable person. (RCW 7.92.020) An ex-husband recently challenged a protection order issued against him, arguing his wife had not alleged behaviors that constituted stalking.

The ex-wife petitioned for an order of protection six months after the divorce, alleging her ex-husband was stalking her. She claimed he hired a private investigator to follow her. She also alleged he accessed her bank accounts and social media accounts through her old phone. The trial court issued a temporary restraining order.

The ex-wife testified at the hearing that her ex-husband had accessed her Ancestry account and read her private messages. She said he also accessed her social media accounts and read her private messages. She also thought he accessed the account where her employer reimbursed her expenses. She testified he had hired a private investigator who followed her for about four weeks. She said she felt afraid and threatened.

No Blanket Rule Against Live Testimony and Cross-Examination in Washington Protection Order Cases

April 15, 2020 | by Blair & Kim, PLLC

Courts in Washington protection order cases do not always have to allow live testimony or cross-examination, pursuant to the Domestic Violence Prevention Act. The trial court or commissioner should perform a balancing test, weighing the value of cross-examination against the potential harm to the witness. The Washington Supreme Court has stated that courts must conduct “individual inquiries” to determine if live testimony or cross-examination is appropriate in the particular case. Courts are not allowed to issue a “bright line rule” to prohibit testimony or cross-examination in protection order hearings.

A man recently challenged the denial of his request to cross-examine the petitioner and present his own testimony in a protection order hearing. The petitioner petitioned for a domestic violence protection order against the respondent.

A temporary protection order was entered. At the hearing, the commissioner allowed the petitioner to speak to “add to her declaration.” The commissioner denied the respondent’s attorney’s request to cross-examine the petitioner and present testimony. The commissioner stated, “I’m not going to take testimony at these hearings” and referenced Gourley v. Gourley. The respondent’s attorney argued that case did not hold that cross-examination was always inappropriate in protection order cases. The commissioner stated that the respondent could testify only by submitting a declaration. The respondent agreed to a continuance so he could submit documentary evidence.

Washington Father Not Required to Pay Mother’s Attorney Fees after Seeking Protection Order and Custody Modification

March 23, 2020 | by Blair & Kim, PLLC

Sadly, suspicions or allegations of abuse sometimes arise in Washington custody cases. Although there may be circumstances where a party makes an allegation in an attempt to affect the custody case, some parents have sincere concerns about their children. A father recently challenged an order that he pay the mother’s attorney fees related to his motion to modify the parenting plan after he sought a protective order against the mother.

The father claimed he noticed injuries on the child after he picked her up from the mother’s home in June 2017. He said he asked her about them, and she said words in her native language that translated to “Ouwie,” “Hit,” and “Mama.” He took the child to the doctor and the doctor reported finding bruising with small abrasions on her feet and linear areas of bruising on her upper inner forearm. The doctor contacted CPS.

The father claimed he noticed more bruising after picking the child up a few days later. He took her back to the doctor and a nurse practitioner examined her and noted she had bruising on her right periorbital area and healing bruising and abrasions on the top of her feet. The nurse practitioner called CPS, and they recommended calling the police and seeking a protective order. The nurse practitioner called the father and recommended he seek a protective order and not return the child to the mother.

Washington No Contact Order Violation Conviction Upheld Where Protected Party Said She Planned to Drop the Order

February 6, 2020 | by Blair & Kim, PLLC

When a Washington civil protection order is in place, any contact with the protected party could result in a charge for a violation of the order. In a recent case, a defendant challenged his conviction for violation of a no contact order, claiming the state did not prove he knowingly violated the order because the protected party told him she had dropped it.

The defendant was stopped for driving with a broken taillight. The officer discovered the vehicle belonged to the passenger and that she was the protected party in a no-contact order against the defendant. The officer arrested the defendant.

The defendant told the officer he knew about the no-contact order, but the protected party said she had taken care of it or was having it dropped. The protected party also told the officer she intended to drop the no-contact order.

Washington Parents May Use Reasonable and Moderate Physical Discipline

December 30, 2019 | by Blair & Kim, PLLC

A person who has experienced domestic violence may seek a protection order with the assistance of a Seattle civil protection order lawyer. Courts may order a protection order based upon violence against a child. Washington law does, however, recognize a parent’s right to physically discipline his or her child, as long as that discipline is reasonable and moderate. An incident of reasonable and moderate physical discipline should not lead to the issuance of a protection order.

A father recently challenged a protection order, claiming that the incident in question was discipline rather than assault. The mother had petitioned for an order of protection against her former husband, alleging that he had assaulted the mother and their son. A judge issued a temporary order of protection, prohibiting the father from having contact with his former wife and their three children.

The father filed opposing declarations, disputing most of the accusations. He did admit, however, that he had recently slapped his 11-year-old son’s cheek for talking back. A police report indicated that the responding officers did not see any marks on the child’s face.

Washington Prosecutor Does Not Have to Stipulate No-Contact Order

September 6, 2019 | by Blair & Kim, PLLC

In a Washington felony violation of a no-contact order case, the prosecution must prove the existence of the no-contact order and the defendant’s knowledge of it. For a variety of reasons, the defense may not want the jury to see the no-contact order. A recent issue in Washington has been whether a defendant can keep a no-contact order out of evidence by stipulating to its existence and his or her knowledge of it. The Washington Supreme Court recently addressed this issue.

A court entered a domestic violence no-contact order prohibiting the defendant from contacting his girlfriend after he was convicted of a domestic violence offense. Finding the defendant was a “credible threat to [her] physical safety,” the court ordered the defendant not to come within 1000 feet of her residence.

Nevertheless, the couple lived together. According to the Washington Supreme Court’s opinion, a neighbor witnessed them having a verbal altercation outside their home. The girlfriend told the neighbor the defendant had hit her and asked them to call 911. The girlfriend told law enforcement the defendant struck her head and face repeatedly and law enforcement observed bruising and other injuries.

Weapons Surrender in Washington Domestic Violence Protection Order

August 15, 2019 | by Blair & Kim, PLLC

In certain circumstances, Washington courts ordering domestic violence protection orders must also order the restrained person to surrender his or her firearms, other dangerous weapons, and concealed pistol licenses (CPL). RCW 9.41.800. There is a standard order that courts may use. The standard order requires the restrained person to immediately surrender the weapons and CPL, get a receipt for the items surrendered, complete a proof of surrender form, and file all of the documents within five days.

In one case, a wife questioned whether the husband had truly surrendered all of his firearms after being ordered to do so. After separating from her husband and moving to Washington, the wife sought a domestic violence protection order, alleging, in part, he had threatened to shoot her. The commissioner issued the order, but found a lack of personal jurisdiction over the husband prevented her from ordering a weapons surrender.

The wife moved for revision of the order. At the hearing, the husband said no firearms were in his possession because his relatives had them. He requested a continuance. The court granted the continuance, but entered a temporary order requiring him to turn over his weapons and any CPL. The husband subsequently filed a proof of surrender form with a receipt from the sheriff’s office showing he had surrendered three guns.

Renewal of a Washington Civil Protection Order

July 15, 2019 | by Blair & Kim, PLLC

It is common for a person with a Washington temporary protection order to seek renewal before the order expires. If a victim petitions for renewal, the court must order a hearing. The burden is on the respondent to show by a preponderance of the evidence that he or she will not commit acts of domestic violence against the petitioner or the petitioner’s family or household members if the order ends. If the respondent fails to meet this burden, then the court will grant the renewal.

A Washington appeals court recently reviewed the renewal of a protection order against the petitioner’s brother. The sister sought a temporary protection order against her estranged brother in 2017. She alleged he made threats against her through her mother and other brother. She also alleged he was emotionally unstable and had firearms. The court granted a protection order for one year. During the year, they had some indirect contact through other family members.

The sister petitioned for renewal shortly before the order expired. She alleged her brother threatened to come to her home after the order expired. Both parties testified at the hearing. The evidence included voice mail transcripts and a letter from another brother.