Criminal Law

Washington Court Finds Second Search Warrant Proper After Excluding Evidence Under First Warrant

March 15, 2019 | by Blair & Kim, PLLC

Evidence collected from an unlawful search is generally not admissible in a Washington criminal case. If, however, the evidence is ultimately obtained pursuant to lawful means independent of the lawful search, it may be admissible. When considering this “independent source doctrine,” the court must consider whether the illegally obtained evidence affected the decision to seek or issue the warrant. The independent source doctrine applies if the illegal search did not contribute to the otherwise lawful warrant being issued.

A defendant recently challenged evidence that was collected from his phone pursuant to a second warrant after the original warrant had been found to be improper. According to the appeal court’s opinion, the defendant was arrested after a shopper noticed him taking “upskirt” photos of a teenage girl at a grocery store. The police seized his phone at the time of the arrest and subsequently obtained a warrant to search the phone. The warrant covered all photos and videos on the phone “related to this investigation of voyeurism. The officers seized more than 500 files and charged the defendant with voyeurism.

The trial court granted a motion to suppress the phone evidence, finding the warrant lacked sufficient particularity. That day, the police obtained another warrant that again covered photos or videos related to the voyeurism investigation, but this time added the name of the store, the city, the name and age of the alleged victim, what the alleged victim was wearing, and the date the photos were taken. Eighteen photos of the girl were found on the phone. The trial court denied the defendant’s motion to suppress the evidence from the second search.

Qualifying for Residential-Based DOSA Sentencing in Washington

February 25, 2019 | by Blair & Kim, PLLC

In a Washington criminal case, the court must generally impose a sentence within the standard sentence range. RCW 9.94A.505. In some circumstances, however, the court may deviate from the standard range. These exceptions include exceptional sentences, first-time offender waivers, and Drug Offender Sentencing Alternative (DOSA). DOSA allows a reduced sentence, treatment, and increased supervision for certain non-violent drug offenders with a goal to help them recover from addiction. The DOSA statute sets forth the criteria for qualifying for special sentencing and provides for both prison-based and residential chemical dependency treatment-based alternatives. RCW 9.94A.660. Under the statute, the residential chemical dependency treatment-based alternative is only available if the midpoint of the standard range is not greater than 24 months.

In a recent case, the state challenged the imposition of a residential-based DOSA sentence because the defendant’s standard range midpoint was greater than 24 months. According to the opinion, the defendant twice sold his prescription Suboxone strips to a police informant within 1,000 feet of a school bus stop. He was charged with two counts of delivering the drug, each with a sentence enhancement for delivering within 1,000 feet of a school bus stop. The standard sentence range for the defendant, based on his offender score and the seriousness of the crime, was 12 to 20 months, plus a 24-month enhancement for each count.

The state offered a deal that would drop one count and recommend prison-based DOSA for the other. This would have resulted in 20 months in prison and 20 months in community custody. The state rejected the defendant’s counter offer to plead guilty if the state removed the school-zone enhancements so he could serve a residential-based DOSA rather than a prison-based DOSA.

Washington Juvenile Courts Must Enter Findings as to Each Element of the Crime

February 8, 2019 | by Blair & Kim, PLLC

Washington Juvenile Courts are subject to their own rules, which may be different from the rules and procedures that apply to a criminal trial of an adult. A juvenile being tried in a juvenile court does not have a right to a jury. RCW 13.04.021. The case is instead heard by a judge. The court must find the juvenile guilty or not guilty and state its findings of fact. The court must include the evidence it relied upon in its findings. The court must also enter written findings of fact and conclusions of law in a case that is appealed. The findings must include the ultimate facts that prove each element of the crime. JuCR 7.11. Generally, the appropriate remedy on appeal for a juvenile court’s failure to enter sufficient findings is remand to the juvenile court to enter the appropriate findings.

A juvenile recently challenged her conviction based on insufficient findings by the juvenile court. The juvenile was arrested after a woman reported seeing a girl rummaging around in her car and then riding away on a bicycle. A sergeant from the sheriff’s department found the juvenile sitting on a bicycle and looking into a truck a couple of blocks from the woman’s home. According to the appeals court opinion, the girl provided the officer with a name that was not her own. The sergeant arrested the girl. When the girl was searched, police found two knives, two speakers, and some change when she searched her.

The juvenile was charged with second degree vehicle prowling and providing a false statement to a public servant. According to the juvenile court’s findings, the woman identified the juvenile as the girl she saw in her car, based on the girl’s clothing, complexion, and build. The juvenile court found the juvenile guilty of both charges.

Washington Court Upholds Restitution for Loss of Gun Held as Evidence

January 18, 2019 | by Blair & Kim, PLLC

Restitution is a concept in criminal law that requires an offender to compensate crime victims for their losses. It is designed to both punish the offender and compensate the victim. In a Washington criminal case, restitution is to be ordered when the defendant is convicted of an offense that results in personal injury or property damage or loss. The injury or loss must be “causally connected” to the offense. Generally, this means that the loss would not have occurred but for the crime. The loss does not, however, have to be foreseeable.

In a recent case, a court ordered restitution for the loss of a weapon that was in the possession of the sheriff’s office. The defendant challenged a court order to pay restitution to the owner of a gun he was convicted of stealing. He argued the court erred in ordering him to pay restitution when the gun could have been returned to the owner instead.

According to the court’s opinion, the man had been served with a no-contact order that arose from an arrest for assaulting his estranged wife. In the same day, he visited the gun owner and asked to see his guns. He stole a pistol and left while the gun owner was in the bathroom. He later used the weapon to threaten his wife. The gun was recovered by the sheriff’s office and placed into evidence. The defendant admitted stealing it from the owner.

Washington Supreme Court Finds Detaining Incompetent Defendant Violation of Substantive Due Process

December 13, 2018 | by Blair & Kim, PLLC

Sometimes a criminal defendant is not competent to stand trial. Washington criminal law sets out procedures for competency evaluations and restorative treatment. Unfortunately, there are not always sufficient resources for these procedures to timely occur. This lack of resources does not justify holding defendants in jail for excessive amounts of time until resources are available.

A defendant recently challenged his conviction and alleged a violation of substantive due process because he had been detained in jail pending transfer to the hospital for competency restoration treatment. The trial court found the defendant was not competent to stand trial and ordered him to be committed to Western State Hospital (WSH) for 45 days within 15 days of the order. 76 days passed before the defendant was admitted to WSH. During that period, he twice moved to have the charges against him dismissed based on a substantive due process violation. He also moved in the alternative for the hospital to show cause as to why it should not be held in contempt. The court ordered a show cause hearing, but denied the motion to dismiss. Before the hearing occurred, the defendant filed two more motions to dismiss.

A doctor provided a declaration for the show cause hearing stating the hospital had to put the defendant on a waiting list. The doctor stated the average wait time for a 45-day restoration case was 71 days.

Sealed Juvenile Records and Firearm Rights in Washington

November 8, 2018 | by Blair & Kim, PLLC

Criminal records, especially felony convictions, can have an ongoing impact on a person’s life. Convictions can affect a person’s rights, including the right to possess firearms. Washington criminal defense attorneys know that getting a juvenile record sealed can restore certain rights.

In a recent case, a Washington appeals court found that sealed juvenile adjudications do not preclude a person from possessing a firearm. The petitioner in this case had been found guilty of two class A felonies as a juvenile. Many years later, the court sealed those records. The petitioner was subsequently denied a concealed pistol license (CPL) on the basis of those felony adjudications. He petitioned for a writ of mandamus to compel the sheriff to issue the CPL, but the superior court denied the petition. He appealed.

The court found that the petitioner met the requirements of RCW 13.50.260 and ordered that the official juvenile court record, social file, and related agency records be sealed. The court also entered a subsequent order stating that the petitioner qualified for restoration of his firearm rights.

Washington Court Upholds Marijuana Manufacture Conviction

October 8, 2018 | by Blair & Kim, PLLC

Photo Credit: HubbardSteve / Shutterstock.com

Washington criminal defense attorneys understand that people sometimes face drug charges because they were in a vehicle or a home where drugs were present. This can be particularly true of the owner or resident of the property where the drugs were found. Although a landlord generally cannot be held liable for a tenant’s criminal actions just because he or she failed to evict the tenant, a Washington appeals court recently upheld a conviction of a woman whose boyfriend allegedly had a marijuana grow operation in her home.

According to the appeals court’s opinion, the defendant lived in a home owned by her stepmother with no formal lease agreement. She shared the home with her children, her boyfriend, and her boyfriend’s brother. The police executed a search warrant and found 27 marijuana plants in the back yard, marijuana in the kitchen, and drying marijuana and glass pipes in the basement. The defendant was charged with manufacturing marijuana. She testified that the marijuana was her boyfriend’s and denied any involvement with the marijuana grow. She testified she had asked him to stop, but he did not do so. She admitted it was her choice to allow her boyfriend to remain at the residence.

Felony Enhancement in Washington DUI Cases

August 31, 2018 | by Blair & Kim, PLLC

Photo Credit: Paul Biryukov / Shutterstock.com

A misdemeanor Washington DUI can be elevated to a felony under some circumstances, including a prior conviction for “[v]ehicular assault while under the influence of intoxicating liquor or any drug.” To elevate a charge, the state must prove the existence of the conviction and that it relates to the defendant. Vehicular assault is an alternative means offense, with three alternatives, but not all of the alternatives qualify for the enhancement. A Washington appeals court recently considered whether the state had proved a defendant’s prior conviction for vehicular assault qualified for the enhancement.

The defendant was charged with a DUI in 2016. The state alleged the defendant’s prior conviction for vehicular assault while under the influence made the current offense a felony. After finding the defendant had committed DUI, the jury was then asked to determine whether the defendant had a qualifying prior vehicular assault conviction. The state introduced the court records from the previous conviction as well as testimony from a police officer. The jury found the defendant had a prior vehicular assault while under the influence of alcohol conviction.

The defendant appealed, arguing the state did not produce sufficient evidence to elevate the offense to a felony. He argued the evidence only established a generic conviction for vehicular assault, rather than showing that he was convicted of vehicular assault while under the influence pursuant to RCW 46.61.522(1)(b).

Statement to Police Officer Found Admissible in Washington Domestic Violence Case

July 13, 2018 | by Blair & Kim, PLLC

In Washington domestic violence cases, the prosecution or defense may want to present evidence of what one of the involved parties said about the events. Hearsay evidence is generally not allowed, so such statements must fall within an exception to the hearsay rule to be admissible. A Washington appeals court recently considered whether a victim’s statement to a police officer was appropriately admitted into evidence.

The couple lived together in the woman’s home at the time of the incident. They got into an argument and the woman reached to take back a cell phone she had given the defendant. According to the court’s opinion, the defendant wrapped his arm around her neck and strangled her for about 10 seconds.

The woman called 911. When the deputies arrived, the woman described these events to one of them.

Scope of Washington Investigative Stop Can Be Expanded

June 6, 2018 | by Blair & Kim, PLLC

Both the U.S. and Washington Constitutions prohibit warrantless seizures, unless the state can show an exception applies. Washington criminal defense attorneys know that one such exception is the Terry stop. An officer may briefly detain an individual if he or she has a reasonable suspicion of criminal activity based on specific and articulable facts the officer knows at the time of the stop. If the activity is consistent with criminal activity, it may justify a brief detention, even if it is also consistent with activity that is not criminal.

A Washington defendant recently challenged her convictions on the ground that the stop was unlawful. After being notified of unauthorized vehicles in his driveway, a man returned home to find he had been burglarized. He reported unauthorized vehicles in his driveway, and two men were arrested. He subsequently found another vehicle on the private road to his house and again called the police. The deputy who responded stopped a vehicle that appeared to be leaving the remote road. The deputy stated the vehicle was “loaded with goods,” so he asked the driver to exit the vehicle. He handcuffed her and put her in the back of his vehicle.

The property owner identified some fluorescent light bulbs in the vehicle as belonging to him. When asked why she was there, the defendant told the deputy she needed to urinate. She was arrested, and officers found a baggie in her jacket that contained a substance that tested positive for methamphetamine. She was charged with burglary in the second degree and possession of a controlled substance—methamphetamine.