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Articles Posted in Criminal Law

Under both the Washington and U.S. Constitutions, warrantless seizures are generally prohibited.  Police may, however, briefly stop and question a person if the officer has a well-founded suspicion the person was connected to actual or potential criminal activity.  The suspicion must be based on objective facts.  This type of stop is called an investigative stop or a Terry stop.  In a recent case, a man challenged a conviction, arguing he had been placed under custodial arrest without probable cause and not held for a Terry stop.

A store employee called 911 when she saw a man in the store she thought had previously stolen video equipment.  She described the man and said she had not seen him steal anything that day, but there was video of him stealing previously.  She told the 911 operator the direction he was riding his bike after he left the store.

A police officer found the defendant, who matched most of the description and was riding his bike in the direction the employee stated.  The officer told the defendant about the 911 call.  The defendant denied being involved in a theft.  The officer told him he could not leave and handcuffed him.  The officer also gave him his Miranda warning.

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The Fifth Amendment of the U.S. Constitution protects individuals from being compelled to incriminate themselves.  Government agents must inform individuals in their custody of the rights to remain silent and to have counsel, known as the Miranda warning. If the government fails to give a required Miranda warning, any incriminating statements the individual makes cannot be used against him in a criminal case.  A recent Washington Supreme Court case examined when an individual held at a border crossing is “in custody” for purposes of Miranda requirements.

As the defendant and his friends were crossing the border to return from a music festival in Canada, they were directed to a secondary inspection area by the border agents.  An agent told them to leave their things in the van and wait in the lobby at the secondary area.  The door to the lobby was locked, so it was not accessible to the public or other travelers. The individuals in the lobby had to ask for permission and be patted down before using the restroom or getting water.  The agents found narcotics on two of the other men who were with the defendant and took them to detention cells.

The defendant was kept in the locked lobby for five hours.  The agents found paraphernalia and personal items containing drugs in the van.  The defendant and his friend were the only travelers in the lobby.  The agents asked the men who owned each of the items and the defendant admitting owning the backpack that had small amounts of heroin and LSD in it.

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Police officers may engage in social interactions with individuals.  Some actions or activities, however, can transform the social interaction into a seizure.  Under Washington criminal law, an officer must have reasonable suspicion to detain an individual and probable cause to arrest him.  In a recent case, the state challenged the dismissal of its case after the trial court found the detention and arrest had been unlawful and suppressed the evidence found in a search.

According to the appeals court opinion, a deputy saw a man and woman sitting on a public sidewalk next to a restaurant at about midnight.  There was a “No Trespassing” sign in the restaurant window, but other businesses in the strip mall were still open. When he approached, he asked the pair what they were doing and referenced the sign.  The man, who was the defendant in this case, told the deputy they were charging a cell phone.  The deputy saw a cord plugged into an outlet outside the building.  The deputy asked the defendant’s name.  The defendant gave him a name, but the dispatcher found no record of that name.  The deputy accused the defendant of lying, and the defendant gave the deputy his real name and admitted there was an arrest warrant out for him.  The deputy could not arrest the defendant on the warrant because it was from another jurisdiction.  He instead arrested him for providing false information to a police officer and trespass.

The deputy found methamphetamine and cocaine in the defendant’s pockets when he searched him following the arrest.  The defendant was charged with possessing a controlled substance, but not with trespass or providing false information.

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The Fifth Amendment to the U.S. Constitution provides the right to be free from self-incrimination. The police must advise suspects of their rights when they are subject to a custodial interrogation by a state agent.  If they fail to give the Miranda warning, then the statements made during the custodial interrogation are presumed to be involuntary and are to be excluded from evidence.  A juvenile defendant in a Washington criminal case recently challenged his conviction on the grounds the court erred in admitting the statement he made to the chief of police in the principal’s office.

The fourteen-year-old defendant had been talking about video games with some classmates in one of their middle school classes.  The other students said the defendant said something like “he was going to shoot the school.” One student said he did not really take the statement seriously because the defendant said that sort of thing “all the time” and he thought the defendant was joking.

The other student also said the defendant had previously made similar statements he had not taken seriously.  This time, however, he was concerned and told the teacher.  He said the defendant did not make the statement to anyone individually, but muttered it to himself.  He said he was afraid the defendant would hurt someone.

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The Washington Constitution provides that a person accused of a crime has a right to notice of “the nature and cause of the accusation against him.” An information in a Washington criminal case must set out all essential elements of the crime along with the facts that support them.  If the information does not include this information, it is deficient.  The information must also include any enhanced penalties the prosecution intends to seek.  When the adequacy of an information is challenged, the court looks at the charging document, and does not consider the evidence presented at trial or jury findings.

A defendant recently challenged a sentencing enhancement after her conviction of four counts of delivering a controlled substances.  She argued that the information did not give her adequate notice of the enhancement.  The charges arose from two controlled drug buys by a confidential informant.  The information, amended multiple times, alleged four counts of delivery of a controlled substance.  The first and third information included aggravating circumstances with each count that alleged the defendant violated RCW 69.50.401 by engaging in the prohibited activity “within one thousand feet of a school bus route…”

The defendant was convicted of four counts of delivering a controlled substance, which the jury found occurred, “within one thousand feet of a school bus route stop.”  She received a 24-month enhanced sentence due to those findings.

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Under Washington rules of criminal procedure, a court may dismiss a criminal prosecution due to arbitrary action or governmental misconduct if the accused rights have been prejudiced and his or her right to a fair trial has been materially affected.  CrRLJ 8.3(b) and CrR 8.3(b). Washington case law has held that mismanagement may be sufficient and the misconduct does not have to be evil or dishonest.   In a recent case, a Washington appeals court considered whether the court’s actions were within the scope of “governmental misconduct” that would support dismissal under CrRLJ 8.3(b).

The court continued the defendant’s arraignment on fourth degree assault and third degree malicious mischief charges after ordering he be provided an interpreter.  There were 14 additional pretrial hearings in the next 15 months, but the interpreter failed to appear at 10 of them. The interpreter appeared by phone “ineffectively,” according to the appeals court, twice.  Two times the interpreter actually appeared in person.  The defendant moved to dismiss the charges pursuant to CrRLJ 8.3(b).  After the interpreter failed to appear at yet another hearing, the trial court dismissed the charges with prejudice.  The trial court found the failure to provide an interpreter “seriously interfered with” the defendant’s right to representation.

The state appealed, and the superior court affirmed the dismissal.  The state then sought discretionary review by the Court of Appeals.  The appeals court granted the review to address the issue of whether CrRLJ 8.3(b) can apply to mismanagement by court administration.

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Generally, a police officer needs a warrant to seize a person suspected of a crime.  There are some exceptions to the warrant requirement, including the Terry stop.  Terry allows an officer to briefly stop and question someone if the officer had reasonable suspicion of criminal activity.  The officer’s suspicion must be based on specific and articulable facts and be individualized to the person.  Challenging the validity of a seizure, including a Terry stop, can be an important aspect of a Washington criminal defense case.

A minor defendant recently appealed his conviction, arguing the officer did not have grounds to conduct a Terry stop.  According to the court’s opinion, the officer stopped a vehicle after seeing it roll through a stop sign.  There were three passengers in addition to the driver. The defendant was the front seat passenger.

The officer smelled marijuana when he approached the vehicle.  The driver told him all of the occupants were seventeen.  The driver denied having marijuana, there being marijuana in the car, or any of the passengers having marijuana.  He said his mother used marijuana and that could have been what the officer smelled.  The officer frisked him and put him the back of the patrol car.

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A DUI in Washington is generally a gross misdemeanor, but it can be elevated to a felony if the defendant has three prior offenses, as defined under the statutes within the past 10 years.  RCW 46.61.502.  RCW 46.61.5055 sets out which convictions qualify as prior offenses, including reckless driving if it resulted from a charge that was originally filed as a DUI.  A Seattle DUI attorney can explain whether a conviction may be considered a prior offense.

The Supreme Court of Washington recently reviewed a felony DUI conviction.  At the time of the offense, the statute required four prior offenses for elevation to a felony, but it has subsequently been amended to require only three.  The defendant had a previous DUI conviction, a first-degree negligent driving conviction, and two convictions for reckless driving.  At trial and on appeal, the defendant argued that the state failed to present sufficient evidence that the reckless driving convictions “involved alcohol.”

The trial court assessed the prior convictions on the record and found that there was sufficient evidence for the case to move forward.  The court did not instruct the jury that it had to find that each prior offense involved alcohol to find the defendant guilty of felony DUI.

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Over the past several years, there has been increasing focus on how the imposition of fees and costs on criminal defendants can disproportionately affect poor and disadvantaged individuals.  Washington drew national attention for the way its courts imposed fees and costs on defendants, and particularly the 12% annual interest rate that was applicable to fees and costs.  Last year, Washington passed an act to address some of the issues with the legal financial obligations for criminal defendants.  The act eliminated interest for all legal financial obligations except restitution. Although Washington criminal courts may still require defendants to pay certain costs, a court may not order an indigent defendant to pay costs.  Even if a defendant is not indigent, the court must still consider his or her financial resources and the burden payment of the costs will create in determining the amount of costs and the method of payment.  (RCW 10.01.160.)  A defendant is indigent if he or she receives certain types of public assistance, is involuntarily committed, or has an annual net income of 125% or less of the federal poverty level.  (RCW 10.101.010.)  Additionally, under the new act, a court can no longer sanction a defendant with contempt based on a failure to pay unless it finds the defendant’s failure to pay is willful.  A willful failure to pay occurs when the defendant has the ability to pay but refuses to do so.  The law identifies the factors the court must consider in determining if the defendant has the current ability to pay.  (RCW 10.01.180.)

An indigent defendant recently challenged community supervision costs that were imposed upon him by the trial court.  After the defendant pleaded guilty to first degree assault and second degree robbery, the trial court waived all non-mandatory fees and costs and stated the defendant did not have financial resources.  The judgment and sentence, however, required the defendant to pay supervision fees.

The defendant appealed, arguing the community supervision fee was a non-mandatory cost that should not have been imposed by the trial court in light of his indigence.

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Teenagers sometimes act impulsively, and, unfortunately, if someone gets hurt as a result of those impulsive actions, it could result in Washington criminal charges.  In a recent case, a juvenile defendant challenged his conviction, arguing in part the court should have considered adolescent brain development and maturity in assessing his culpability for assault.

According to the appeals court’s opinion, three friends were in eighth grade at the same middle school.  The court used pseudonyms for all of the boys: Timothy Martin, Andrew Christopher, and Bob Simpson.  While Christopher was sitting on a desk talking to Simpson one day, Martin came up from behind and put Christopher into a choke hold.

Martin said it was a professional wrestling choke hold that he had seen during professional wrestling matches.  He knew it could stop a person’s breathing and cause them to become unconscious.  Martin said he wanted to show the choke hold to Simpson and did not mean to interrupt Christopher’s air or blood flow.

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