Seattle DUI Attorney | Illegal Search and 404b Evidence

Here we go yet again, a new run down of the criminal jurisprudence cases ruled in the most recent week in Washington State. As with last week, the number of decisions released is minute - maybe it has a bit to do with the holidays or something, so this article may not be that long (though I doubt it). And bear in mind, as usual, that although I am a Seattle criminal lawyer, I would not propose you receive my synopsis of these cases and my scrutiny of these cases as gospel as you amble into court to talk to the judge. If you in reality need the help of one of these cases to help you, do the intelligent thing and study the situation. That way you can be rest assured that what you are uttering is right - or better yet, telephone a Seattle DUI attorney to facilitate - you’ll be delighted you did.

The primary criminal defense case on our docket is State v. Hartzell, a situation 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 sort of case a DUI attorney loves because the proof was slight. It is not the kind of state of affairs a criminal attorney loves since the prosecutor employed some original theories of utilizing the rules of proof that appeared to be odd upon first review. Let’s see what the court has to say.

Facts - The victim was awakened in his home by gunshots. He looked outside and saw a person shooting out of a red van. The van was moving as the shooting was going on so the victim assumed there was more than one person. A independent victim heard the same thing, and later discovered bullet holes in her bed. Fragments were drawn from the bed. later the cops searched the house of Hartzell’s buddy, who admitted to shooting a pistol at a different time. According to ballistics, the handgun was that used during the firing described above.

The cops were then afterward called to a reported crime where Hartzell was. The police showed up, witnessed a bullet hole in a car, and brought a search dog to attempt to find the pistol that was used. The dog smelled in the vehicle, then went out and found the gun a few hundred yards away from the car. This gun also matched the bullets fired at the first described site.

Issues - Hartzell challenged the search of his vehicle as illegal and that previous incidents were improperly admitted to illustrate that the defendants had a tendency to perpetrate firearm crimes.

examination - First, on the subject of the search question. The Washington State constitution protects citizens from unnecessary searches of their person and their private things. This stipulation is not dishonored if no search occurs. A search happens when the state interferes with a individual’s private dealings. Usually, a search does not occur if an cop is able to uncover something utilizing one of his senses from a non-intrusive point of view.

With regard to canine sniffs, a search occurs depending on the situation. Prior decisions have held that a search does not arise if the sniff occurs in a place the person would not have a rational expectation of privacy and the sniff was not invasive. Here, the canine sniffed the air coming out of the SUV window. Hartzell wasn’t in the van when the sniff happened and the dog didn’t get into the van. The search was realistic.

Second, on the topic of the 404(b) proof issue. ER 404(b) provides:

facts of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to illustrate 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 test for admitting proof under this rule is well established. The trial court must: (1) discover by a preponderance of the proof that a offense happened; (2) identify the rationale for which the verification is sought to be introduced; (3) determine whether the evidence is relevant to determine the element of a crime charged; and (4) contemplate the probative value against the prejudicial effect.

In this case, there was a realistic inference that the revolver found 100 yards from Hartzell’s automobile was possessed by him, particularly because the canine found the pistol after sniffing Hartzell’s vehicle. Bullets from the gun was also discovered on Hartzell and in the van driven by Hartzell. Next, the prosecutor was attempting to use that facts not to show that the crimes formed an identity that may perhaps illustrate the first offense and the crime alleged were the similar, but that it was likely the defendants committed the crimes for the reason that they were discovered in possession of the guns used in the offense shortly thereafter.

Because of these specifics, the court located that facts to be important. And lastly, the trial court’s examination of the admission of the proof was sound since it reasoned the lack of data about the incident would prevent the entrance of the information from being prejudicial.

Seattle driving under the influence attorney’s examination - This isn’t the most excellent case I’ve ever seen, but the prosecutor was well inside their boundaries to attempt to get this in. Do I think the fact that these guys are located with the guns later have any influence on what occurred under the crimes alleged? No. Because no one spotted anything it is impossible to distinguish who was using those guns on the night in question. The prosecutors once again are drawing conclusion upon inference to arrive at their desired conclusion - that these two guys committed the crimes. What I didn’t see in any of this examination (and granted, all of the evidence wasn’t here) was any corroboration that they committed the crimes alleged. As a criminal lawyer in Seattle, I can absolutely see why this case was taken to trial - the verification just isn’t there.

Next at the Seattle DUI Attorneys Blog we have State v. Bliss, a case on the topic of possession of meth, search and seizure, and car stops.

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

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

Bliss’s Seattle criminal defense attorney moved to suppress the proof on two grounds: (1) the officer didn’t have justification to stop the truck; and (2) the police officer couldn’t have seen who was driving the car when Bliss drove by him. The trial court discovered the officer was justified in the stop and the search was legal.

Immediately before trial Bliss renewed her motion to suppress based on the theory that the search was not happening to the arrest. The court discovered the search was contemporaneous with the arrest.

Issues - Was the search legal?

analysis - 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 issue here, is when an police officer stops a person briefly to investigate a practical suspicion that criminal defense activity is afoot. Under this exception, the police officer must have a practical suspicion that offense is afoot. The practical suspicion must be based on specific facts connected to the specific person stopped such that the stop and investigation is practical 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 case when the cop stopped Bliss, he knew the owner had outstanding misdemeanor and felony warrants. He also knew the person driving the car at least partially matched the description of the registered owner. This is enough information to justify the stop of Bliss.

As for the Gant scrutiny, 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 truck. This topic is sent back down to the trial court to analyze the topic under Gant.

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

Gant has actually given a tool for Seattle DUI attorneys 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 event to arrest. I guess we’ll see…

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Seattle DUI Attorney | Don't Talk to Cops

I retain many of drunk driving defense customers in Seattle. Nearly all are people exactly like you and me. Typical citizens. The solitary distinction is they mostly have made merely one poor blunder that they are at this instant facing penalty for. For nearly everyone it is a Seattle DUI charge or drug possession charge.

Nevertheless since my clients have by and large never been in dilemma previously outside the arbitrary speeding infraction here and there, they possess no idea how to interact amid the police when they show up and are investigating you for a crime. This is for two major reasons: first, since of the media (counting advertising by the cops) we inherently trust the cops are out there to facilitate us; and second, the police understand this and play to this, and utilize their power as often as doable to make you to do things you don't desire to do.

If my consumers would have merely paid attention in social studies class in high school and government class in high school, or actually examine those police officer programs that are all over television, they would grasp that after the police show up and are trying to bust them for Seattle DUI, they are not your companion. They are present for one grounds only - to gather support not in favor of you. And the best approach the get a hold that information is you - that's correct, often you prepare your own bed when it comes to the Seattle drunk driving charges you face.

Like I said, I'm a Seattle DUI attorney. As a Seattle driving under the influence attorney there is not anything I like to glimpse less than a law enforcement report that includes a bunch of my client's statements. They never benefit - they always hurt. And they are repeatedly the primary basis for the accusations my client is facing.

So, what should you do if you are investigated for a felony? First, close your lips. And don't open it unless you desire to state the words "get me a lawyer." Otherwise you are merely hurting yourself. Second, when you utter those words, make an effort to shut yourself down as best you can. The cops aren't going to enjoy this and they are going to try everything they can to get you chatting. This includes using your doubts, your ideology, and the possessions you care about, against you. Just continue quiet until you have a driving under the influence attorney in Seattle nearby to assist you. It will yield a giant alteration.

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Seattle DUI Attorney | Prosecutors Must Play Fair

A new week, a new post at the Seattle DUI Attorneys Blog reviewing the significant criminal defense law case decisions from the Court of Appeals and the Supreme Court of the State of Washington. Although last week there was an significant conclusion that affects a lot of Seattle DUI prosecutions, this week, the actual effect of the cases on the practice of law for your average Seattle DUI attorney is slight.

To give you a concise 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 announce any fresh cases of significance. The Division II case concerns something criminal defense defense lawyers in Seattle will run into from time to time, or at least face questions on - the restoration of firearm rights after a criminal defense conviction. The Division III case concerns the essentials of residential burglary and whether or not obstructing a law enforcement officer counts as the predicate misdeed necessary for a guilty verdict of residential burglary. Let’s get going!

Restoring Fire Arms Rights - State v. Mihali

Facts - State v. Mihali is a case about restoring fire arms rights to an entity convicted of a crime. Mihali, in 2000, was found guilty of conspiracy to manufacture a controlled substance (i.e. drugs - in all probability methamphetamine). In 2004 Mihali received a certification from the Department of Corrections that she had fulfilled the terms of her judgment, was discharged from DOC supervision, and had all of her civil rights restored (right to vote, etc.) not including the entitlement to own 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, arguing that the mandatory 10 years had not elapsed since her conviction was finished, which is a necessity because she was found guilty of a class B felony. The court agreed with Mihali and restored her firearms rights - the State appealed.

Issue - Was Mihali entitled to have her right to possess a firearm restored?

Analysis - firearm restoration rights are governed by RCW 9.41.040(4). It states that a person without a conviction for a sex offense or a Class A felony may petition the court to have their right to possess a weapon if:

(b)(i) If the guilty verdict 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 human being has no prior felony convictions that prohibit the possession of a gun counted as part of the offender score under RCW 9.94A.525

The state's contention that two conditions must be met before firearms will be restored is a sound one: (1) five or more years in the community without being convicted or currently charged with a crime; and (2) no earlier felony convictions in her criminal defense history that would be included in her offender score calculation that make illegal possessing a firearm. The issue in scrutiny here is the date from which the second prong of the scrutiny is calculated from. The state contends the ten year look back phase goes from the date of the petition for restoration of weapon 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 preceding case decisions. There we determined that the Legislature intended the look back phase to be from the date of the petition for firearm restoration. Although the decisions in these cases were not absolutely on point because they weren’t discussing this statute explicitly, the breakdown is similar. Furthermore, this is reflected in the Legislative history of the law.

Holding - The trial court’s decision 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 firearm right restoration.

Seattle DUI attorney’s Analysis - In cases such as these, whether or not the law appears to be impartial, 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 weapon rights restored. It was almost certainly worth a shot from Mihali’s criminal defense attorney because the matter 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 firearm 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 basics of residential burglary, namely whether or not obstructing a law enforcement officer counts as the predicate transgression required for a conviction of residential burglary. The case starts with the cops thinking Devitt stole a car and was involved in a hit and run. The cops saw him nearby to the accident and Devitt took off and ran from them. He ended up hiding in an apartment complex, eventually finding himself in the apartment of a woman. While there Devitt talked to the woman, had a schooner of iced tea, made a telephone call (with her authorization), and just hung out waiting for the officers to leave. The woman said she wasn’t in fear for her security. After a bit she went outside to take out the trash and let the officers know Devitt was in her high-rise.

Devitt was charged with residential burglary (first degree dui trespass as an alternative), obstructing a law enforcement officer, and resisting arrest. At the completion of the state’s case, Devitt moved to dismiss the burglary charge for failing to show all of the fundamentals, namely that Devitt planned to commit a offense against the person or property in the dwelling. 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 sufficient 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 dwelling other than a vehicle with plan to commit a misdeed against a person or goods therein. To support his posture that obstructing a law enforcement officer should not be important as the underlying offense, Devitt pointed the court to the prosecutor’s standards for charging crimes. Obstructing a law enforcement officer is not characterized anywhere as a transgression against a individual, much less anyone other than the officer.

The language of the residential burglary law requires a explicit transgression (against a being or possessions) in a detailed place (inside a dwelling) and with a specific intent (to go in the abode to commit the offense). Because of this, more than just the intent to commit a crime generally is necessary.

The condition that the offense intended to be committed be done “therein” or within the abode, is also notable. 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 precise offense.

Holding - the state failed to provide evidence the elements of the residential burglary statute. The case is dismissed with prejudice.

Everett driving under the influence 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 maintain their completely awkward view to the court of appeals? And why would the trial court judge not read the law and realize the elements of the misdeed had not been met? I am a Seattle dui 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 justice system, make everyone grumpy, and make defense attorneys 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 mandatory to get this decision right.

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

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