State v. Wisdom, 187 Wash.App. 652 (Division 3) w/ Comments

In 2015, the Washington State Court of Appeals Division 3 decided State v. Wisdom, 187 Wash.App. 652.

The defendant in the case was arrested because the truck he was driving in was stolen.  Subsequent to his arrest, a toiletry bag on a seat in the truck was searched by law enforcement.  The search led to the recovery of illegal drugs. Wisdom told the officer there was methamphetamine on the seat of the truck.  But never consented to the police officer’s search of the toiletry bag.  The arresting officer did not apply for a search warrant.  The officer searched the contents of the bag under the guise of a search incident to lawful arrest and an inventory search.  Wisdom was convicted of drug possession and possession with intent to deliver.  But appealed his convictions on the ground the search(s) were unlawful.

On the surface, the facts of the case would appear hopeless to Wisdom, right?  After all, he was caught driving in a stolen truck. Post-arrest he told the officer methamphetamine would be found on a seat in the truck.  And low and behold, a zipped toiletry bag was located by the police officer inside the truck on a seat, of all places.  With wads of cash inside the bag visible from the outside.

Still think the facts of the Wisdom case are hopeless?  If so, you would be wrong in thinking that.

“Search Incident to Arrest”:

Under both the Fourth Amendment to the US Constitution and Article 1, Section 7 of the Washington State Constitution, a warrantless search of a vehicle incident to arrest is authorized when the arrestee would be able to obtain a weapon from the vehicle or reach evidence of the crime of arrest to conceal or destroy,  State v. Wisdom, citing Arizona v. Gant, 556 U.S. 332, 338 (2009).  In short, Wisdom was arrested, handcuffed, escorted to the officer’s police cruiser and was seated in the back of the cruiser prior to the search of the truck.  Certainly, Wisdom was not in a position to obtain a weapon from the truck and/or reach evidence of the crime of arrest to conceal or destroy.  If the bag was of concern to the officer for purposes of shielding the contents from concealment or destruction, the officer could have sealed the bag and applied for a warrant.  See State v. Snapp, 174 Wash.2d 177 (2012) also cited by State v. Wisdom.

“Inventory Search”

The Wisdom Court cited three decisions by Washington court’s wherein suppression was the remedy for evidence found in a closed container on the ground that the closed container could have been listed as inventory rather than opening the container and listing each individual item inside.  See State v. White, 135 Wash.2d 761 (1998); State v. Houser, 95 Wash.2d 143 (1980) and State v. Dugas, 109 Wash.App. 592 (2001).  Again, if the officer had concerns regarding the contents of the bag, he or should could have applied for a warrant.

Washington’s Constitution Provides: “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.”  Washington Constitution Article 1, Section 7.  In this particular case, the officer could have applied for a warrant but chose not too.  Wisdom did not give consent as well.  Two very important factors, in the court’s decision to suppress evidence located inside the toiletry bag.

The moral of the story, if you have been charged with a possession crime make sure to explain all the facts of your case to your attorney.  Your case may not be as hopeless as it appears.  You have legal rights.

Happy Thanksgiving!

Pot Shop Sting Op

Yesterday, it was reported in The Columbia via the Associated Press a sting operation focusing on pot shop sales of marijuana to minors allegedly resulted in 4 of 22 pot shops being non-compliant.  The brief article mentioned 10-day suspensions or fines up to $2,500.00 could occur.  Apparently, notice was given on May 12, 2015 by the liquor board to the various shops regarding the crackdown.  Additionally, the store employees accused of the sales are having their cases referred to the prosecutors office for potential criminal prosecution.

I do not know the specific facts of each individual case referenced above including the age of the minors working on behalf of law enforcement but in general and for the edification for anyone interested in the machinations of the law in Washington State under RCW 69.50.406(2):

“Any person eighteen years of age or over who violates RCW 69.50.401 by distributing any other controlled substance listed in Schedules I, II, III, IV, and V to a person under eighteen years of age who is at least three years his or her junior is guilty of a Class B felony punishable by fine authorized RCW 69.50.401(2)(c),(d), or (e) by a term up to twice that authorized by RCW 69.50.401(2)(c),(d), or (e), or both.”

Of course, if the folks involved in the operation were over the age of 18 than obviously RCW 69.50.401(2) is not triggered.

See also RCW 69.50.4013(3):

“The possession, by a person twenty-one years of age or older, of useable marijuana or marijuana-infused products in amounts that do not exceed those set forth in RCW 69.50.360(3) is not a violation of this section, this chapter, or any other provision of Washington State law.”

To read the article in its entirety, please click on the link provided.

 

 

 

 

 

“Faces of Meth” a Decade Old

Oregonian writer Kasia Hall recently wrote an article on the 10 year Anniversary of “Faces of Meth” launched in 2004.  Anyone doing criminal defense work like me should read this article.  Please find below a link to Hall’s article in its entirety.

One of the subjects of the article is Perry Bennett.  According to the article he has been in and out prison 12 times over the past 26 years.  He is currently serving a 28-month sentence at the Columbia River Correctional Institution in North Portland for possession of heroin, possession of meth and unlawful use of motor vehicle.

Sadly, I wish I had seen this article in time to alert folks to a live chat with the creator of “Faces of Meth,” Multnomah County Sheriff’s Deputy Bret King, which was this past Tuesday.  However, the link to the article does include transcripts from the live chat including contact information for Deputy King.

Link to the article.

Passage of New Law in 2012 May Help Expedite Evaluation of Mentally Ill Criminal Defendants in Clark County

News was reported in The Columbian on October 29, 2014 by Journalist Paris Achen, “Clark County may become the second county in the state to use a panel of local experts to evaluate mentally ill defendants, rather than ask the state hospital to perform competency evaluations, local officials said.”

As a long time criminal defense attorney in the community, I am pleased to hear this latest development in the evaluation of mentally ill defendants in Clark County.  It has been my experience in the past — many defendant’s wait significant periods of time in jail while awaiting their competency evaluations.  A waiting period that can often exceed the standard sentencing range for offenses they are facing.  Consequently, the waiting period can exceed sentencing recommendation typically made by the State for purposes of pre-trial resolution.  Many of the cases involve people being held in custody for non-violent crimes like drug possession, theft and possession of stolen property.  Not to mention misdemeanor offenses.

In other words, let’s say someone is incarcerated in jail on a charge of Theft in the Second Degree.  No prior convictions.  But still unable to make bail so they remain in jail pending the outcome of the case.  Competency is at issue so an evaluation is ordered by the Court.  Absent aggravating factors, the standard sentence range for the Theft in the Second Degree with no prior felonies is 0-60 days.  Unfortunately, the evaluation can take so long that the by the time competency is established that person may have served well over the high end of the range for the offense he/she is being held on.  Example given, someone waiting 3 months in jail before competency is established even though the high end of the range is 2 months.  Sadly, mental illness can result in a huge disparity between the time served for two individuals charged with the same; however, one is being evaluated for competency and the other is not.  This is an unfair though necessary to promote a fair trial.  But efforts should be made to at least ameliorate this unintended consequence.

That said, it appears I am not the only one frustrated with what can be a laborious evaluation process. According to the article, Clark County Prosecuting Attorney, Tony Golik is quoted, “I think it’s a very positive thing that we are moving forward on this … It’s frustrating that Western State (Hospital) takes significantly longer than it should to do competency evaluations.”

The article cites funding and personnel as two major culprits in evaluation delays.

According to the article, “a law went into effect in May 2012 allowed some counties to receive state reimbursement for competency evaluations conducted by private local experts.”  In other words, instead of having to waiting for Western State Hospital to conduct and complete its evaluations.  A more accessible and available local panel of experts can be used to expedite the process at State expense.

Clark County Prosecuting Attorney Tony Golik is further quoted in the article as saying, “It’s important … that we don’t have people just languishing in jail waiting for an evaluation .. It’s important to the criminal justice system as a whole that if you have somebody impacted by mental illness, we can get an evaluation quickly to find out what level the mental illness is so we can react appropriately.”

The article indicates officials hope to have the panel completed by January 2015.  And as required by law, “the Clark County Prosecuting Attorney’s Office and the local defense bar have been involved in selecting the experts for the local panel.”

To read the article in its entirety, please click the following link.

Economists to Discuss Legalized Weed at Econ Forum

As we inch closer to November 2014 elections and ballot measures in Oregon; specifically, Measure 91, the potential for legalized marijuana continues to draw interest not only from criminal defense attorneys, prosecutors, cannabis lawyers, law enforcement, and dispensaries, processors and growers — but economists, as well.

As reported in this morning’s Oregonian economists are gathering today in Portland, OR to discuss the impact of legalized weed on the economy at the Oregon Economic Forum.

According to the article, the latest poll “show 52 percent of the voters support Measure 91 while 41 percent are opposed.”

To read the article in its entirety, please click the following link.

The article also includes links to other articles on Measure 91,  recreational marijuana, and the Oregon Economic Forum.

Defendant Once Accused of Controlled Substance Homicide Pleads Guilty to Lesser Charges in Clark County Superior Court

Yesterday, it was reported in The Columbian by Paris Achen that a Vancouver woman once accused of homicide by delivery pleaded guilty to lesser charges including attempted delivery of a controlled substance and tampering with physical evidence.

According to the article, the State encountered defects in the case with a witness who allegedly saw the defendant, Thomas, deliver the methamphetamine to John Cantwell, the decedent. Apparently, her credibility and possible mental health issues factored into the State’s decision to resolve the case pre-trial.

Under RCW 69.50.415 “Controlled Substances Homicide” (1) A person who unlawfully delivers a controlled substance in violation of RCW 69.50.401(2)(a),(b) or (c) which controlled substance is subsequently used by the person to whom it was delivered, resulting in the death of the user, is guilty of controlled substance homicide. (2) A controlled substances homicide is a Class B felony punishable according to chapter 9A.20 RCW.

Class B felonies are punishable by up to 10 years in prison and a $10,000 fine.

The minimum range for controlled substance homicide is 51-68 months.

However, as indicated in the article, the controlled substance homicide charge was dismissed by the State.  Thomas instead was charged with attempted delivery and other offenses.  Her sentencing was set over until Monday with a both sides agreeing to a recommendation of 400 days which the article indicates is the amount of time she served in jail while the case was pending.  To read the article in its entirety please click the following link.

 

Child Abuse? Or Child Discipline? The case of Adrian Peterson Revitalized the Debate. But what is the law in Washington State?

Last week NFL football player, Adrian Peterson was indicted by a grand jury in Texas on charges of reckless or negligent injury to a child from an alleged incident occurring in June 2013.

Since the story broke, there has been a great deal of debate in the news regarding child abuse and/or child discipline with opinions running the full gamut  between support and condemnation.

As a criminal defense attorney, I am intrigued by the attention Peterson’s story is receiving because it offers insights into people’s attitudes and opinions on a very controversial and polarizing topic.  Attitudes and opinions that a lawyer would surely need to explore during jury selection when presented with defending a client faced with assault of a child charges.

That said, what is the law in Washington State regarding Physical Discipline of a Child.  For example, if a client is faced with a Child Assault charge and the defendant is claiming a discipline defense, the jury would be given the following instructions under WPIC (Washington Pattern Jury Instruction)  17.07:

“It is a defense to a charge of assault that the force used was lawful as defined in this instruction.

The physical discipline of a child is lawful when it is reasonable and moderate, and is inflicted by a [parent] [teacher] [guardian] [person authorized in advance by the child’s parent or guardian to use such force] for purposes of restraining or correcting the child.

You must determine whether the force used, when viewed objectively, was reasonable and moderate.

You may, but are not required to, infer that it is unreasonable to do the following act(s) to correct or restrain a child:  [throwing, kicking, burning, or cutting a child] [striking a child with a closed fist] [shaking a child under age three] [interfering with a child’s breathing] [threatening a child with a deadly weapon] [doing any act that is likely to cause, and that does cause, bodily harm greater than transient pain or minor temporary marks.] [You shall consider the age, size, and condition of the child, and the location of the injury, when determining whether the bodily harm is reasonable or moderate.]  This inference is not binding upon you, and it is for you to determine what weight, if any, such inference is to be given.

The [State] [City] [County] bears the burden of proving beyond a reasonable doubt that the force used by the defendant was not lawful.  If you find that the [State] [City] [County] has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty [as to this charge].”

BUT see also RCW 9A.16.100 “Use of Force on Children – Policy – Actions Presumed Unreasonable” which places no express limitations on acts of physical discipline that can defined as presumably unreasonable :

“It is the policy of this state to protect children from assault and abuse and to encourage parents, teachers, and their authorized agents to use methods of correction and restraint of children that are not dangerous to the children. However, the physical discipline of a child is not unlawful when it is reasonable and moderate and is inflicted by a parent, teacher, or guardian for purposes of restraining or correcting the child. Any use of force on a child by any other person is unlawful unless it is reasonable and moderate and is authorized in advance by the child’s parent or guardian for purposes of restraining or correcting the child.

The following actions are presumed unreasonable when used to correct or restrain a child: (1) Throwing, kicking, burning, or cutting a child; (2) striking a child with a closed fist; (3) shaking a child under age three; (4) interfering with a child’s breathing; (5) threatening a child with a deadly weapon; or (6) doing any other act that is likely to cause and which does cause bodily harm greater than transient pain or minor temporary marks. The age, size, and condition of the child and the location of the injury shall be considered when determining whether the bodily harm is reasonable or moderate. This list is illustrative of unreasonable actions and is not intended to be exclusive.”

Of course, there is always the option of putting the child in “time-out”.  Or taking a deep breath and counting to ten.  Thereby, taking the guess work out of it and not leaving your fate in the hands of your community.

In any event, in light of the news created by the Peterson story, I thought this would be a good opportunity to blog about the laws on this topic locally.

Now Decriminalized in Washington State, Recreational Weed Infrastructure Ain’t Kush

In November, Oregon voters will decide whether Measure 91 (recreational weed) gets passed.  Measure 91 is akin to Washington State’s I-502.  However, despite their prospective kinship there seems to be a slew of reading material lately suggesting how Oregon should avoid and / or learn from the mistakes that have hampered legalized weed in Washington State since the voters passed I-502.  Unlike, let’s say, Colorado (where recreational marijuana is also legal) who by comparison seem to have hit the ground running successfully since there kindred bill was passed in 2012.

One such article I read recently was written by Dirk VanderHart in the Portland Mercury titled “Supply and the Man” with the headline “Pay Attention to Washington’s Difficulties with Legal Weed.  Oregon Might be Next.”

The article identifies several factors in Washington State that lead to these “difficulties”:  limitation on canopy size for growers; growers demanding prices from retailers significantly higher than a buyer would find on the black-market (thus leading to what most voters hoped legalized weed would eradicate — the underground market); retailers diverting deliveries from other retailers via “price gouging” and bidding wars for product; squabbling between indoor and outdoor growers; leaving legal weed in the hands and discretion of the Washington State Liquor Control Board instead of perhaps in the hands of the department of health or agriculture [in Colorado legal weed is regulated by the Department of Revenue]; limited supply; restrictions on the number of licenses people could receive; slow application process, etc.

Great article.  Definitely a worthwhile read for those interested in following the decriminalization of marijuana.  To read the article in its entirely, please click on the following link.

Op Piece on Criminal Justice Act of 1964 by George Will in the Washington Post

Interesting opinion piece on the Criminal Justice Act of 1964 by George Will in the Washington Post. Must read for criminal defense attorneys in the public sector and private sectors.  The opinion article asks who is better off the pre or post act defendant?  One response might surprise some.

In the article David Patton, executive director of Federal Defenders of New York says “‘that federal criminal law expanded recklessly and become too punitive.  Prosecutors use severity (especially mandatory minimum sentences), high rate of pre-trial detention (doubled since 1963) and long detention (the length has quintupled since 1963) to produce excessive plea bargaining.  This limits defense lawyers’ abilities to test evidence and challenge allegations before a neutral arbiter – a judge or jury.  The adversarial process, the foundation of our criminal justice system, has become an inquisitorial process that fails to produce fair trials.”

While the opinion piece does include a counter-point to Patton’s beliefs, as a public defender at the state level for many years, I can tell you he’s absolutely right.  In fact, this is just the tip of the iceberg when it comes to leverage tactics at the disposal of prosecutors to rush a defendant to a plea bargaining without fulling exploring the search for truth.

To read the opinion piece in its entirety please click the following link.  Article in the Washington Post also includes links to other reading material on the subject of legal aid and indigent defense.

In Contrast to Colorado’s Recreational Weed Laws is Washington a Prospective Case Study for Oregon

Interesting article by Noelle Crombie in today’s The Oregonian.  Article addresses a Vancouver Pot Store’s struggle to stay open despite the demand and the legalized recreational use of marijuana in Washington State.  According to the article, among the culprits for slow business: pot shortages, high prices and (perhaps most importantly, in my humble opinion) “the backlog of growers, processors and retailers awaiting state licensing”.  Mj-infused edibles and concentrates are also scarce according to the article.

Crombie notes the contrast between Colorado and Washington, “Washington’s rocky rollout stands in stark contrast to Colorado, where the state relied on its established medical marijuana industry to shape its recreational one”, on the other hand, “Washington’s medical marijuana dispensaries remain unregulated – much like Oregon’s before this year.”  As the article indicates, Oregon began regulating medical marijuana dispensaries in March.

This fall voters in Oregon will decide if individuals 21 and older can possess up to eight ounces at home, one ounce in public.

To read the article in its entirety, click the link.