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Articles Posted in Criminal Law

Washington drug cases often turn on the legality of the search that found the evidence.  Both the federal and Washington state constitutions provide protection from unreasonable searches and seizures.  Generally, searches must be conducted under a lawful warrant, unless an exception applies.  A man recently successfully challenged his conviction on the grounds the trial court erred in applying the Terry and community care taking exceptions to the search that found the evidence used against him.

A Starbucks employee called 911 for assistance removing a sleeping person from the store.  According to the court’s opinion, the officer tried to wake the defendant, but he was unresponsive.  The officer started to suspect the defendant was under the influence of drugs.  He noticed a metal utensil partially sticking out of the defendant’s pocket.  He was concerned it was a knife, needle, or other sharp object.  He took it out of the defendant’s pocket and found it was a cook spoon with a dark brown residue and burn marks.  The officer determined he had probable cause for an arrest and kept searching, finding drugs and other drug paraphernalia.

The officer then performed a “hard sternum rub” to wake the defendant.  He told the defendant he was under arrest, handcuffed him, and took him to an aid car.

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Washington criminal case law has established that defendants are entitled to be free of shackles at trial, unless there are extraordinary circumstances.  Restraints may affect a number of constitutional rights, including the presumption of innocence, the right to testify, and the right to consult with counsel.  Trial courts do, however, have discretion in deciding on courtroom security measures, including restraints, as long as they base that discretion on facts in the record.

In a recent case, a defendant challenged his conviction after he was shackled in pretrial appearances and required to wear a leg brace at his jury trial.  At his first court appearance, the defendant was shackled in handcuffs and a belly chain.  His attorney moved for removal of the shackles, arguing they violated the defendant’s due process rights under the Fifth Amendment and the Washington State Constitution.

The trial court held a consolidated hearing on all motions related to restraint and removal before it.  The court granted the motions “to the extent the court agrees there are less restrictive means of furthering the compelling government interest of courtroom security.”  The court proposed videoconferencing as an alternative, but acknowledged it would not be implemented for over a year.  The court indicated its adoption of the sheriff’s policies would remain in effect until videoconferencing was implemented.  The policy required leg braces at trials.

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In a Washington criminal case, the state must prove all of the elements of the crime.  In a recent case, a defendant challenged her conviction for second degree organized retail theft, arguing that the state had not shown that she obtained goods from a “mercantile establishment” when the alleged crime involved online catalogs.

Second degree organized retail theft occurs when the defendant steals property worth a total of at least $750 from one or more “mercantile establishments.” RCW 91.56.350.

According to the appeals court’s opinion, the defendant used her neighbors’ names and accounts to place three orders from online catalogs.  One of the other residents reported the incident to the complex office and the police.  The defendant was charged with second degree organized retail theft, two counts of second degree possession of stolen property, and three counts of first degree identity theft.

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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.

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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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