Criminal Law

Washington Court Failed to Properly Consider MHSA in Sentencing Felony No-Contact Order Violation

November 28, 2023 | by Blair & Kim, PLLC

In some circumstances, a Washington criminal defendant may be eligible for a sentencing alternative, including a parenting sentence alternative, a drug offender sentencing alternative (“DOSA”), or a mental health sentencing alternative (“MHSA”). The defendant must meet certain conditions to qualify for these alternatives. A defendant is only eligible for an MHSA if: their conviction is for a felony but is not a sex offense or a serious violent offense, they have a diagnosis for a serious mental illness recognized by the current mental health diagnostic manual, the judge determines the defendant and community would benefit from treatment and supervision, and the defendant is willing to participate. RCW 9.94A.695(1). If the court determines that an MHSA is appropriate, it imposes a term of community custody within a range determined based on the length of the standard range sentence, but the court has discretion in determining the actual length of the community custody within the ranges. RCW 9.94A.695(4).

A defendant recently challenged his sentence for felony violation of a no-contact order, arguing the court did not follow the proper procedure set forth in the statute when it denied his request for an MHSA.

According to the unpublished opinion of the appeals court, the defendant was arrested outside his ex-wife’s apartment in April, 2021. Two active no-contact orders prohibited him from contacting her or being within 1,000 feet of her apartment. He had served a sentence for a prior violation and recently been released. He was also under the conditions of a DOSA.

Washington Appeals Court Determines Fenced Pasture Not Protected by Ferrier Rule

November 14, 2023 | by Blair & Kim, PLLC

Article I, section 7 of the Washington Constitution protects a person from having their “home invaded, without authority of law,” which generally requires a valid warrant. There is, however, an exception to the warrant requirement when officers obtain a valid consent to search. The consent except applies only when the consent is voluntary, the person has the authority to consent, and the search is within the scope of the consent.

Pursuant to State v. Ferrier, before entering a home when conducting a “knock and talk,” an officer must inform the person they have the right to refuse consent, revoke consent, and limit the scope of their consent to certain locations in the home. An important aspect of the court’s analysis in Ferrier was the constitutional protection of a person’s home. The court also expressed concerns about officers using the knock and talk to avoid getting a search warrant. The Ferrier court concluded officers violate article I, section 7 if they fail to inform a resident of the right to refuse consent to a warrantless search of the home.

The state recently appealed an order suppressing evidence officers obtained in multiple warrantless searches of a fenced pasture after the trial court suppressed the evidence based on the Ferrier rule.

Washington Appeals Court Upholds Juvenile’s Arson Convictions

October 31, 2023 | by Blair & Kim, PLLC

Washington law provides special protections to children in criminal investigations. Pursuant to RCW 13.40.740, which became effective January 1, 2022, a juvenile being questioned in a custodial interrogation, detained based on probable cause of involvement in criminal activity, or asked to consent to an evidentiary search can only knowingly, intelligently, and voluntarily waive their Miranda rights after consulting with an attorney. This consultation cannot be waived. A Washington juvenile defendant recently challenged his convictions, arguing in part the consultation requirement should apply even though he was interviewed before the statute’s effective date.

The Fires

According to the unpublished appeals court opinion, the thirteen-year-old juvenile told his father there was a fire at the dumpster of their apartment complex when he returned from taking out the trash on May 7.

He was home alone on the morning of May 16 and two more fires occurred. He was home alone again that afternoon and three more fires were set. No one saw how the fires started or who started them.

Washington Appeals Court Reverses Restitution Order

October 8, 2023 | by Blair & Kim, PLLC

RCW 9.94A.753(5) requires a court to order restitution when a defendant is convicted of a Washington criminal offense that results in injury or damage to or loss of property, unless there are “extraordinary circumstances.” The state must prove the damages by a preponderance of the evidence. Restitution cannot include intangible losses like mental anguish or pain and suffering. The restitution cannot be more than double the amount of the defendant’s gain or the victim’s loss. RCW 9.94A.753(3)(a). A defendant recently challenged a restitution order, arguing the state had not sufficiently proven he had caused the damages.

According to the unpublished opinion of the appeals court, the pleaded guilty to a single count of vehicle prowl and three counts of possession of a stolen vehicle. He agreed to pay restitution for in an amount to be determined for two of the charged crimes and three uncharged crimes, including possession of a pick-up truck.

In addition to damages to the truck for which the defendant was charged, the state requested $12,605.84 for damage to the uncharged truck. The state argued the defendant was responsible for all of the damage to the uncharged truck because he was “the person that caused the victim to lose possession of the vehicle. . .” and asked the trial court to find that the defendant was responsible for all of the damages associated with the vehicle.

Washington Driver License Revocation Under RCW 46.20.285(4)

September 14, 2023 | by Blair & Kim, PLLC

Under RCW 46.20.285, a Washington driver license must be revoked upon conviction of certain offenses. The statute requires the Department of Licensing to revoke the driver license when conviction of one of the listed offenses becomes final. A defendant recently challenged his judgment and sentence, arguing the court had applied the wrong version of the statute.

The appeals court obtained the details of what occurred from the affidavit of probable cause. It stated the defendant and another person took fragrances from a beauty store without paying. The store manager described the individuals and the vehicle they left in to police. An officer stopped a car matching that description. He saw several fragrance boxes in the floor and the back seat passenger had store alarm sensors in their lap. The defendant reached a plea agreement with the state and entered a guilty plea on one count of possession of stolen property in the second degree.

The only disputed issue at the sentencing hearing was whether the court should find that the vehicle was used in commission of the offense, leading to suspension of the defendant’s driver license for one year, pursuant to RCW 46.20.285(4).

Washington Court Rejects Defendant’s Entrapment Defense in Drug Case

August 28, 2023 | by Blair & Kim, PLLC

To succeed in an entrapment defense, a Washington criminal defendant must show that the “criminal design” originated with law enforcement or someone acting under law enforcement’s direction and the defendant was induced to commit a crime he otherwise did not intend to commit. It is not sufficient for the defendant to show that law enforcement provided him an opportunity to commit the crime. RCW 9A.16.070. Pursuant to Washington case law, the test focuses on whether the defendant was predisposed to commit the crime. A defendant recently appealed his conviction, arguing entrapment.

A Sergeant with the Whitman County Sheriff’s Office created a Facebook profile under the name of “Pauline Niner” to meet people online who would be willing to sell drugs. At trial, the sergeant said he used a female identity because “[i]t attracts more people.” The sergeant had recently attended a training that addressed drug dealers and users communicating through social media and how officers could create a profile and engage in communication over social media.

According to the appeals court’s opinion, the defendant contacted “Pauline” and they discussed meeting. Pauline wanted methamphetamine and the defendant said he could get some. Various issues prevented him from providing her with the drugs on three occasions, but he stated he had a “little bit” on February 16, 2022. The sergeant arrested him when he got to the address.

Washington Juvenile Adjudicated Guilty of Fourth Degree Assault in Altercation with Sister

August 7, 2023 | by Blair & Kim, PLLC

Young siblings sometimes scuffle, but they usually are not charged with a Washington crime as a result. A teenager recently challenged a guilty adjudication for fourth degree assault arising from an altercation with his younger sister.

According to the appeals court’s opinion, which relied primarily on the juvenile court’s unchallenged findings, the sixteen-year-old juvenile had recently had surgery and was weak and had lost weight. His eleven-year-old sister came upstairs to the bedroom where he was resting looking for the dogs to take them out before school. When she tried to get the juvenile’s dog, it nipped her and she struck it on the nose. The juvenile told her not to hit the dog.

She called the juvenile a name as she tried to get the other dog from under the bed. She said the juvenile gave her a “quick tap in the face with his foot.” She responded by throwing a bottle of lotion and a bottle of vitamins at him, hitting him with one of them.

Washington Supreme Court Concludes Warrantless Search of Home Was Justified

July 30, 2023 | by Blair & Kim, PLLC

The U.S. Supreme Court held in Caniglia v. Strom that the “community caretaking” exception to the warrant requirement did not extend to a residence. The Washington Supreme Court has recently considered application of that holding in a Washington criminal case.

According to the opinion, a deputy went to a home after 911 received a call that a caregiver had not come to work that morning. The caller also reported the caregiver had been involved in a domestic incident with her husband the day before. The deputy knocked and announced himself, but there was no answer.

He called the caregiver’s husband and told him he needed to talk with her. The deputy asked where she was and the husband said she should be at work. The husband confirmed the minivan in the driveway was hers. He provided his wife’s phone number. The deputy did not tell the husband his wife was missing or ask him to come home or for consent to check the residence.

Washington Driver Can’t Consent to Search of Passenger’s Backpacks

June 13, 2023 | by Blair & Kim, PLLC

Evidence obtained through an unlawful search is generally inadmissible in a Washington criminal case. Both the Fourth Amendment to the U.S. Constitution and the Washington Constitution offer protections against unlawful searches. The Washington Constitution provides that “No person shall be disturbed in his private affairs, or his home invaded, without authority of law,” Article I, Section 7. This section in some circumstances provides greater privacy protections than the Fourth Amendment.

A defendant recently challenged a search of his backpacks that were inside a vehicle. The appeals court’s opinion states the defendant was a passenger in a vehicle during a traffic stop for suspicion of suspended license. The officer recognized the defendant as having an outstanding warrant. The officer ordered him to remain seated, but the defendant got out of the car and subsequently fled. The officer caught him and searched his pockets. He found a pipe, cash, and a small amount of what he thought was heroin.

The driver told the officer the defendant asked her to stop at a gas station when the patrol car was following them. She said he moved some bags to the back seat. She pointed out two backpacks on the rear floorboard and another on the passenger side floorboard. She gave permission to search the car “without limitation.”

Washington Appeals Court Affirms Admission of 911 Call as Excited Utterance

May 28, 2023 | by Blair & Kim, PLLC

Generally, hearsay is not admissible in a Washington criminal case, unless it meets an exception. Hearsay is an out-of-court statement “offered in evidence to prove the truth of the matter asserted.” ER 801(c). Generally, hearsay is not admissible unless it meets a specific exception. One exception is an “excited utterance.” Statements made while the speaker is still under the stress of the exciting event are considered more likely to be true because they are thought to be spontaneous. The exception only applies if there has been “a startling event or condition,” the statement was made while the speaker was under the stress of the excitement from that event or condition, and the statement was related to the startling event or condition. ER 803(2). In determining if the excited utterance exception applies, the court may consider the speaker’s emotional state, the spontaneity of the statement, how long has passed, and if the speaker has had the opportunity to fabricate a story. A defendant recently challenged the admission of a 911 call when the alleged victim had not testified at trial.

According to the appeals court’s opinion, the defendant and his ex-girlfriend had recently broken up at the time of the incident. The defendant knocked on his ex-girlfriend’s door at about 10 and started crawling in her bedroom window when she did not answer. She woke up and told him not to come in. She then ran a neighbor’s apartment. The defendant followed and knocked on the neighbor’s door.

The neighbor called 911. The ex-girlfriend told the 911 operator the defendant jumped in her window while she was sleeping and was currently standing outside the door trying to open it. She said he wanted to hurt her.