Seattle Criminal Attorney | Search Incident to Arrest

Here we go yet again, a new run down of the criminal jurisprudence cases decided in the previous week in Washington State. As with preceding week, the amount of decisions out is mimimal - maybe it has a little to do with the holidays or something, so this post might not be that long (although I doubt it). And keep in mind, as always, that though I am a Bellevue criminal attorney, I would not suggest you receive my synopsis of these cases and my scrutiny of these cases as gospel as you saunter into court to speak to the judge.

If you truly need the benefit of one of these cases to aid you, do the intelligent thing and read the situation. That way you can be rest certain that what you are saying is right - or better yet, call up a criminal defense attorney in Seattle to aid - you’ll be pleased you did.

The initial driving under the influence case on our docket is State v. Hartzell, a case focused on the rules of facts, namely 404(b). Here we go.

State v. Hartzell is a state of affairs about armed assault and unlawful possession of a handgun. It is the variety of situation a drunk driving defense attorney loves because the verification was slim. It is not the type of case a criminal defense attorney loves because the prosecutor employed some original theories of using the rules of proof that appeared to be suspicious upon first review. Let’s see what the court has to declare.

Facts - The victim was awakened in his abode by gunshots. He peered outside and saw a person firing out of a red sports car. The automobile was moving as the shooting was going on so the victim assumed there was more than one person. A unconnected victim heard the similar thing, and later located bullet holes in her bed. Fragments were drawn from the bed. later the police searched the abode of Hartzell’s friend, who admitted to shooting a pistol at a different time. According to ballistics, the firearm was that used in the firing described above.

The cops were then afterward called to a reported offense where Hartzell was. The police showed up, spotted a bullet hole in a vehicle, and brought a search canine to attempt to locate the revolver that was used. The canine smelled inside the van, then went out and discovered the gun a few hundred yards away from the sports car. This revolver also matched the bullets shot at the first described location.

Issues - Hartzell challenged the search of his truck as illegal and that previous incidents were wrongly admitted to illustrate that the defendants had a tendency to execute gun crimes.

breakdown - First, on the subject of the search issue. The Washington State constitution protects people from gratuitous searches of their individual and their private things. This provision is not violated if no search occurs. A search occurs when the state interferes with a individual’s confidential dealings. Usually, a search does not arise if an police officer is able to reveal something utilizing one of his senses from a non-intrusive point of view.

With regard to canine sniffs, a search happens depending on the conditions. Prior decisions have held that a search does not occur if the sniff happens in a place the individual would not have a reasonable belief of privacy and the sniff was not invasive. Here, the dog sniffed the air coming out of the SUV window. Hartzell wasn’t in the car when the sniff happened and the dog didn’t get into the vehicle. The search was logical.

Second, regarding the 404(b) facts question. ER 404(b) provides:

facts of other crimes, wrongs, or acts is not admissible to prove the character of a individual in order to demonstrate action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The experiment for admitting verification under this rule is well recognized. The trial court must: (1) find by a preponderance of the proof that a crime happened; (2) distinguish the point for which the evidence is sought to be introduced; (3) conclude whether the verification is pertinent to determine the element of a offense charged; and (4) ponder the probative value against the prejudicial effect.

In this occurrence, there was a reasonable deduction that the gun discovered 100 yards from Hartzell’s sedan was owned by him, particularly since the dog found the firearm after sniffing Hartzell’s automobile. Bullets from the firearm was also discovered on Hartzell and in the van driven by Hartzell. Next, the prosecutor was trying to use that proof not to demonstrate that the crimes created an identity that may perhaps illustrate the first offense and the offense alleged were the similar, but that it was probable the defendants committed the crimes because they were discovered in possession of the guns used in the offense shortly thereafter. Because of these particulars, the court found that evidence to be important. And to end with, the trial court’s examination of the admission of the evidence was sensible since it reasoned the lack of data about the occasion would prevent the admission of the information from being prejudicial.

Seattle DUI attorney’s breakdown - This isn’t the most excellent case I’ve ever seen, but the prosecutor was well within their boundaries to try to get this in. Do I believe the fact that these guys are found with the guns later on have any impact on what occurred under the crimes alleged? No. Because no one viewed anything it is not possible to see who was utilizing those guns on the night in question. The prosecutors once again are drawing inference upon conclusion to achieve their preferred conclusion - that these two guys committed the crimes. What I didn’t notice in any of this scrutiny (and granted, all of the evidence wasn’t here) was any evidence that they committed the crimes alleged. As a Bellevue criminal attorney, I can certainly see why this case was taken to trial - the facts just isn’t there.

Next we have State v. Bliss, a state of affairs on the subject of possession of methamphetamine, search and seizure, and car stops.

State v. Bliss is a case about a traffic stop that resulted in the search of the van and the discovery of meth. It brings up a hot topic these days, the search event to arrest and Gant v. Arizona. Let’s study on and see what happens.

Facts - Bliss was driving around one night when a cop got behind her and checked the registration on her motor vehicle. The officer found that Bliss had unsettled misdemeanor and felony warrants. He stopped the van, established Bliss’s identity, and arrested her on the warrants. Upon arresting her, he searched the van, finding a tan handbag that contained a meth pipe and two small baggies of meth. The cop completed a property record before having the van towed.

Bliss’s Seattle drunk driving defense attorney moved to suppress the verification on two grounds: (1) the cop didn’t have good reason to stop the van; and (2) the police officer couldn’t have seen who was driving the vehicle when Bliss drove by him. The trial court located the officer was correct in the stop and the search was legal.

Just before trial Bliss renewed her motion to suppress based on the premise that the search was not event to the arrest. The court located the search was simultaneous with the arrest.

Issues - Was the search legal?

scrutiny - Warrantless searches are per se unreasonable under the United States and Washington Constitutions. To survive scrutiny the warrantless search must fall into one of several enumerated exceptions. One exception, the one at question here, is when an cop stops a person briefly to investigate a logical suspicion that criminal activity is afoot. Under this exception, the police officer must have a reasonable suspicion that crime is afoot. The practical suspicion must be based on specific facts connected to the specific individual stopped such that the stop and investigation is reasonable under the circumstances. It must be based on more than a “feeling” or a “hunch.” In determining reasonableness, the courts look to the totality of the circumstances.

In this state of affairs when the cop stopped Bliss, he knew the owner had outstanding misdemeanor and felony warrants. He also knew the individual driving the automobile at least partially matched the description of the registered owner. This is enough information to justify the stop of Bliss.

As for the Gant analysis, further information is needed. This ruling was not yet in effect at the time of the initial motions and so was neither considered by the court nor addressed by the prosecution by way of providing an alternative justification for the search of the car. This question is sent back down to the trial court to analyze the topic under Gant.

criminal defense attorney in Seattle scrutiny - This was probably the right thing to do here. If the question wasn’t known at the time of the initial hearing then there is no way the Appeals court may possibly have the information it needs to decide if the search was legal. One thing I did uncover interesting in this opinion was the fact that afterward the car was impounded, which suggests the vehicle would have been searched to inventory the vehicle. Whether that includes a search of the inside of the bag remains to be seen.

Gant has actually given a tool for criminal defense defense lawyer’s to use on a regular basis, particularly since police don’t yet fully grasp what it means or how to deal with it. In the end what I think it means is that there will be a lot more vehicles impounded and a lot more other excuses for searching vehicles than a search occasion to arrest. I guess we’ll see…

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I retain several of DUI defense clients in Seattle. A large amount are citizens just similar to you and me. Usual people. The single distinction is they as a rule have made merely one deficient mistake that they are at this moment facing reprimand for. For most it is a Seattle driving under the influence allegation or marijuana possession accusation. They need a Seattle criminal attorney that can help.

Nevertheless because my patrons have generally in no way been in dilemma previously outside the arbitrary speeding infraction here and there (and they don't regularly read the Criminal Attorney in Seattle Blog, they retain no plan how to interact with the police as soon as they arrive and are investigating you for a crime. This is for two major reasons: firstly, since of the media (counting promotion by the police) we inherently accept as true the cops are out there to aid us; and second, the cops recognize this and play to this, and make the most of their influence as frequently as feasible to persuade you to do things you don't desire to do.

If my consumers would have absolutely paid attention in social studies seminar in high school and government seminar in high school, or in fact observe those police officer shows that are all over TV, they would know that as soon as the police show up and are investigating a criminal act, they are not your pal. They are present for one aim only - to collect data not in favor of you. And the preeminent system the get a hold that information is you - that's correct, frequently you prepare your own bed when it comes to the Seattle DUI accusations you face.

Like I said, I'm a Seattle DUI attorney. There is nothing I like to see less than a police description that includes a bunch of my client's statements. They never lend a hand - they at all times impair. And they are regularly the primary basis for the accusations my client is facing.

So, what should you do if you are investigated for a misdemeanor? First, lock up your mouth. And don't open it unless you intend to express the expression "get me a attorney." Otherwise you are absolutely hurting yourself. Second, when you articulate those words, undertake to close yourself down as best you can. The cops aren't going to be keen on this and they are going to try everything they can to get you talking. This includes using your worries, your ethics, and the clothes you care about, counter to you. Just continue calm until you have a driving under the influence attorney in Seattle at hand to help you. It will make a giant modification.

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Seattle Criminal Attorney | Firearms and Residential Burglary

Another week, a different column reviewing the significant criminal law case decisions from the Court of Appeals and the Supreme Court of the State of Washington. Although last week there was an important determination that affects a lot of Kirkland DUI prosecutions, this week, the actual effect of the cases on the practice of law for your average Seattle criminal attorney is small.

To give you a short preview, we have two decisions, one out of Division II of the Court of Appeals and one out of Division III of the Court of Appeals. It was a slow week for the Supreme Court - they didn’t make public any new cases of significance. The Division II case concerns something DUI attorneys in Kirkland will run into from time to time, or at least face inquiries on - the restoration of weapon rights after a dui conviction. The Division III case concerns the fundamentals of residential burglary and whether or not obstructing a law enforcement officer counts as the predicate transgression mandatory for a guilty verdict of residential burglary. Let’s get started!

Restoring Fire Arms Rights - State v. Mihali

Facts - State v. Mihali is a case about restoring fire arms rights to an human being convicted of a crime. Mihali, in 2000, was convicted of conspiracy to manufacture a controlled substance (i.e. drugs - probably methamphetamine). In 2004 Mihali received a documentation from the Department of Corrections that she had fulfilled the terms of her punishment, was discharged from DOC supervision, and had all of her civil rights restored (right to vote, etc.) excepting the entitlement to possess and/or hold a firearm. In 2008 she filed with the court a motion to restore her firearms, alleging that she had met all of the requirements to have her right to firearms restored. The state opposed this motion, disagreeing that the necessary 10 years had not elapsed since her guilty verdict was finished, which is a requirement because she was found guilty of a class B felony. The court settled with Mihali and restored her firearms rights - the State appealed.

Issue - Was Mihali entitled to have her right to own a weapon restored?

Analysis - firearm restoration rights are governed by RCW 9.41.040(4). It states that a individual devoid of a conviction for a sex offense or a Class A felony may formally request the court to have their right to own a weapon if:

(b)(i) If the conviction or finding of not guilty by reason of insanity was for a felony offense, after five or more consecutive years in the community without being found guilty or found not guilty by reason of insanity or currently charged with any felony, gross misdemeanor, or misdemeanor crimes, if the individual has no prior felony convictions that prohibit the possession of a firearm counted as part of the offender score under RCW 9.94A.525

The state's argument that two conditions must be met before firearms will be restored is a sensible one: (1) five or more years in the area without being convicted or currently charged with a misdeed; and (2) no earlier felony convictions in her driving under the influence history that would be incorporated in her offender score computation that prohibit possessing a weapon. The matter in scrutiny here is the date from which the second prong of the scrutiny is measured from. The state contends the ten year look back period goes from the date of the petition for restoration of gun rights. Mihali argues the ten year look back period should be from the date of the last guilty verdict. If the state’s view is adopted, Mihali is not appropriate. If Mihali’s view is adopted, she is.

This issue has been raised and answered in prior case decisions. There we determined that the Legislature intended the look back era to be from the date of the petition for weapon restoration. Although the decisions in these cases were not exactly on point because they weren’t discussing this statute particularly, the examination is similar. Additionally, this is reflected in the Legislative history of the statute.

Holding - The trial court’s conclusion reinstating Mahili’s weapon rights is overturned. Mahili must delay ten years from the date of her last guilty verdict before the court can consider gun right restoration.

Kirkland criminal attorney’s Analysis - In cases such as these, whether or not the law appears to be rational, it is the law. I think the court decided the way that it should have, even though it forces Mihali to wait five more years to have her firearm rights restored. It was probably worth a shot from Mihali’s dui attorney because the subject hadn’t been litigated, but it was a long shot to be upheld by the Court of Appeals. The fact is, at the time of her petition for gun right restoration, Mihali had a felony conviction that would have counted as part of her offender score.

Elements of Residential Burglary - State v. Devitt

Facts - State v. Devitt is a case about the essentials of residential burglary, namely whether or not obstructing a law enforcement officer counts as the predicate transgression mandatory for a guilty verdict of residential burglary. The case begins with the officers believing Devitt stole a car and was implicated in a hit and run. The cops witnessed him close to the accident and Devitt took off and ran from them. He ended up hiding in an apartment complex, ultimately finding himself in the apartment of a woman. While there Devitt spoke to the woman, had a goblet of iced tea, made a telephone call (with her acquiescence), and just hung out waiting for the cops to leave. The female said she wasn’t in concern for her safety. After a bit she went outside to take out the trash and let the officers know Devitt was in her apartment.

Devitt was charged with residential burglary (first degree criminal trespass as an alternative), obstructing a law enforcement officer, and resisting arrest. At the close of the state’s case, Devitt moved to dismiss the burglary charge for failing to demonstrate all of the fundamentals, namely that Devitt planned to commit a crime against the person or possessions in the residence. The court said obstructing a law enforcement officer was enough, and let the case go to the jury. Devitt was convicted of all the charges.

Issue - Is obstructing a police officer adequate to meet the underlying transgression obligation of residential burglary?

Analysis - Residential burglary is defined in RCW 9A.52.025(1) as: entering or remaining unlawfully in a house other than a automobile with intent to commit a offense against a individual or property therein. To hold up his posture that obstructing a law enforcement officer should not be significant as the underlying misdeed, Devitt pointed the court to the prosecutor’s standards for charging crimes. Obstructing a law enforcement officer is not characterized anywhere as a misdeed against a human being, much less anyone other than the officer.

The language of the residential burglary law requires a precise misdeed (against a person or belongings) in a specific place (inside a residence) and with a explicit intent (to enter the apartment to commit the misdeed). Because of this, more than just the intent to commit a misdeed usually is necessary.

The condition that the transgression intended to be committed be done “therein” or inside the home, is also main. In this case there was no law enforcement officer in the dwelling, making it hard for Devitt to have entered the home to commit that detailed misdeed.

Holding - the state failed to show the elements of the residential burglary law. The case is dismissed with prejudice.

Seattle criminal Lawyer’s Analysis - Really? Are you freaking kidding me? Why would the prosecutor even charge this offense, much less see it through to a jury trial and then argue their completely unreasonable position to the court of appeals? And why would the trial court judge not read the law and realize the elements of the crime had not been met? I am a Seattle drunk driving defense lawyer, so I am a little biased. But I am not the type of criminal defense attorney that is an apologist for my clients. I see the facts and I see the crimes charged and I work from there. Why can’t prosecutors do the same thing?

This is a great example of some of the things we are forced to deal with all the time that gum up the DUI defense justice system, make everyone grumpy, and make a Seattle criminal attorney think prosecutors are unreasonable and gunning for victories at all times. If this prosecutor would have amended the charges to first degree trespass there would have been no trial, there would have been no appeal, and all of this time would not have been wasted. A first year law student should be able to make the analysis requisite to get this determination right.

That’s my two sense for today. Stay tuned next week for another installment of the latest driving under the influence decisions from Washington State. Hopefully there will be more exciting news.

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