DUI Lawyer Seattle | Illegal Searches

Here we go again, a new run down of the drunk driving law cases ruled in the previous week in Washington State. As with preceding week, the quantity of decisions out is small - possibly it has something to do with the holidays or something, so this article might not be that lengthy (although I doubt it). And bear in mind, as usual, that though I am a Seattle DUI attorney, I would not propose you take my outline of these cases and my analysis of these cases as gospel as you amble into court to chat to the judge. If you really require the benefit of one of these cases to facilitate you, do the brainy thing and read the state of affairs. That way you can be rest secure that what you are uttering is accurate - or better yet, phone a drunk driving defense lawyer in Seattle to assist - you’ll be pleased you did.

The initial drunk driving state of affairs on our docket is State v. Hartzell, a case focused on the rules of facts, namely 404(b). Thanks for coming back to the Seattle DUI Attorney Blog!

State v. Hartzell is a state of affairs about armed assault and unlawful possession of a handgun. It is the type of case a driving under the influence defense attorney enjoys because the evidence was poor. It is not the variety of situation a driving under the influence attorney loves since the prosecutor employed some fresh theories of using the rules of proof that appeared to be suspect upon first review. Let’s see what the court has to state.

Facts - The victim was awakened in his abode by gunshots. He looked outside and witnessed someone shooting out of a red car. The automobile was moving as the firing was going on so the victim assumed there was more than one person. A unconnected victim heard the identical thing, and afterward found bullet holes in her bed. Fragments were drawn from the bed. afterward the cops searched the house of Hartzell’s friend, who admitted to shooting a revolver at a different time. According to ballistics, the handgun was that used in the shooting described above.

The cops were then later called to a reported offense where Hartzell was. The police showed up, viewed a bullet hole in a automobile, and brought a search dog to try to uncover the gun that was used. The canine smelled within the vehicle, then went out and found the gun a few hundred yards away from the sedan. This handgun also matched the bullets fired at the first described site.

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

breakdown - First, concerning the search question. The Washington State constitution protects citizens from unwarranted searches of their individual and their confidential things. This proviso is not violated if no search occurs. A search happens when the state interferes with a individual’s private dealings. Usually, a search does not arise if an police officer is able to notice something utilizing one of his senses from a non-invasive point of view.

With regard to canine sniffs, a search occurs depending on the conditions. Earlier decisions have held that a search does not happen if the sniff happens in a location the individual would not have a practical expectation of privacy and the sniff was not intrusive. Here, the canine sniffed the air coming out of the SUV window. Hartzell wasn’t in the vehicle when the sniff occurred and the canine didn’t get into the van. The search was rational.

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

evidence 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 test for admitting proof under this rule is well established. The trial court must: (1) come across by a preponderance of the facts that a crime occurred; (2) distinguish the point for which the proof is sought to be introduced; (3) conclude whether the facts is relevant to decide the element of a offense charged; and (4) evaluate the probative value against the prejudicial effect.

In this situation, there was a reasonable deduction that the revolver found 100 yards from Hartzell’s car was possessed by him, particularly since the dog found the gun after sniffing Hartzell’s van. Ammunition from the firearm was also discovered on Hartzell and in the automobile driven by Hartzell. Next, the prosecutor was attempting to use that facts not to demonstrate that the crimes created an identity that could demonstrate the first offense and the crime alleged were the same, but that it was probable the defendants committed the crimes for the reason that they were found in possession of the guns used in the offense shortly thereafter. Because of these specifics, the court discovered that proof to be relevant. And to end with, the trial court’s breakdown of the admission of the facts was sensible since it reasoned the lack of information about the incident would prevent the admission of the information from being prejudicial.

Seattle criminal attorney’s analysis - This isn’t the greatest case I’ve ever seen, but the prosecutor was well within their limitations to attempt to get this in. Do I feel the fact that these guys are located with the guns later have any influence on what happened under the crimes alleged? No. Because no one saw anything it is not possible to see who was using those guns on the night in question. The prosecutors once again are drawing conclusion upon inference to achieve their preferred conclusion - that these two guys committed the crimes. What I didn’t make out in any of this scrutiny (and granted, all of the evidence wasn’t here) was any proof that they committed the crimes alleged. As a criminal lawyer in Seattle, I can unquestionably see why this situation was brought to trial - the evidence just isn’t there.

Next we have State v. Bliss, a situation concerning possession of meth, search and seizure, and vehicle stops.

State v. Bliss is a case about a traffic stop that resulted in the search of the vehicle and the discovery of methamphetamine. It brings up a hot theme these days, the search occurrence to arrest and Gant v. Arizona. Let’s look at on and see what happens.

Facts - Bliss was driving around one night when a cop got behind her and checked the registration on her car. The police officer discovered 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 car, discovering a tan handbag that contained a meth pipe and two small baggies of meth. The police officer completed a property inventory before having the van towed.

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

Just before trial Bliss renewed her motion to suppress based on the theory that the search was not occurrence to the arrest. The court located the search was contemporaneous 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 topic here, is when an cop stops a person briefly to investigate a rational suspicion that driving under the influence activity is afoot. Under this exception, the cop must have a reasonable suspicion that crime is afoot. The realistic suspicion must be based on specific facts connected to the specific individual stopped such that the stop and investigation is realistic 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 situation when the officer 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 examination, 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 motor vehicle. This issue is sent back down to the trial court to analyze the question under Gant.

DUI attorney in Seattle scrutiny - 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 determine if the search was legal. One thing I did unearth interesting in this opinion was the fact that later on the sports car was impounded, which suggests the automobile would have been searched to inventory the van. Whether that includes a search of the within of the bag remains to be seen.

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

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I have several of DUI clients in Seattle. Most are people exactly resembling you and me. Normal people. The single difference is they frequently have committed simply one flawed misstep that they are currently facing reprimand for. For most it is a Seattle DUI allegation or marijuana possession accusation.

Nevertheless since my customers have regularly never been in dilemma before outside the arbitrary speeding infraction here and there, they possess no inkling how to deal amid the cops as soon as they get there and are investigating you for a criminal act. This is for two primary reasons: firstly, because of the media (plus advertising by the police) we inherently accept as true the cops are out there to assist us; and second, the cops see this and play to this, and utilize their power as repeatedly as feasible to induce you to do things you don't desire to do.

If my patrons would have just paid attention in social studies seminar in high school and government class in high school, or actually watch those cop programs that are all over television, they would recognize that when the police show up and are investigating a crime, they are not your buddy. They are there for one reason only - to collect data in opposition to you. And the preeminent means the obtain that information is you - that's correct, repeatedly you make your own bed when it comes to the Seattle driving under the influence accusations you face.

Like I said, I'm a Seattle DUI attorney. As a Seattle criminal attorney there is not anything I like to glimpse less than a law enforcement commentary that includes a lot of my client's statements. They never help - they all the time damage. And they are time and again the chief source for the charges my client is facing.

So, what should you do if you are investigated for a drunk driving? First, shut your lips. And don't open it unless you desire to utter the words "get me a attorney." Or else you are absolutely hurting yourself. Second, after you utter those terms, attempt to lock up yourself down as best you can. The police 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 suspicions, your main beliefs, and the effects you care about, counter to you. Just continue quiet until you have a criminal defense lawyer in Seattle there to assist you. It will create a mammoth alteration.

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Another week, a different column reviewing the key DUI law case decisions from the Court of Appeals and the Supreme Court of the State of Washington. Although last week there was an significant determination that affects a lot of 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 sample, 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 up-to-the-minute cases of consequence. The Division II case concerns something drunk driving defense attorneys in Seattle will run into from time to time, or at least face inquiries on - the restoration of firearm rights after a DUI guilty verdict. The Division III case concerns the fundamentals of residential burglary and whether or not obstructing a law enforcement officer counts as the predicate crime for a conviction of residential burglary. Let’s get started at the Seattle DUI Attorney Blog!

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 transgression. Mihali, in 2000, was found guilty of conspiracy to manufacture a controlled substance (i.e. drugs - probably methamphetamine). In 2004 Mihali received a official recognition from the Department of Corrections that she had finished the terms of her sentence, was discharged from DOC supervision, and had all of her civil rights restored (right to vote, etc.) except the entitlement to own and/or possess a weapon. 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 required 10 years had not elapsed since her conviction was fulfilled, which is a requirement because she was convicted of a class B felony. The court agreed with Mihali and restored her firearms rights - the State appealed.

Issue - Was Mihali eligible to have her right to hold a gun restored?

Analysis - gun restoration rights are governed by RCW 9.41.040(4). It states that a person with no a guilty verdict for a sex offense or a Class A felony may formally request the court to have their right to hold 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 convicted or found not guilty by reason of insanity or currently charged with any felony, gross misdemeanor, or misdemeanor crimes, if the person has no prior felony convictions that prohibit the possession of a weapon counted as part of the offender score under RCW 9.94A.525

The state's contention that two circumstances must be met before firearms will be restored is a reliable one: (1) five or more years in the community without being found guilty or currently charged with a transgression; and (2) no previous felony convictions in her drunk driving history that would be included in her offender score calculation that ban possessing a firearm. The subject in scrutiny here is the date from which the second prong of the analysis is calculated from. The state contends the ten year look back phase goes from the date of the petition for restoration of firearm 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 previous case decisions. There we determined that the Legislature planned the look back phase to be from the date of the petition for firearm restoration. Although the decisions in these cases were not completely on point because they weren’t discussing this statute explicitly, the breakdown is comparable. In addition, this is reflected in the Legislative history of the law.

Holding - The trial court’s determination reinstating Mahili’s gun rights is overturned. Mahili must wait ten years from the date of her last conviction before the court can think about gun right restoration.

Tacoma DUI attorney’s Analysis - In cases such as these, whether or not the law appears to be reasonable, 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 gun rights restored. It was almost certainly worth a shot from Mihali’s dui defense lawyer because the issue 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 elements of residential burglary, namely whether or not obstructing a Seattle law enforcement officer counts as the predicate misdeed obligatory for a conviction of residential burglary. The case starts with the cops thinking Devitt stole a car and was caught up 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, in the end finding himself in the apartment of a woman. While there Devitt spoke to the woman, had a glass of iced tea, made a cell phone call (with her consent), and just hung out waiting for the officers to leave. The female said she wasn’t in anxiety for her security. After a bit she went outside to take out the trash and let the officers know Devitt was in her residence.

Devitt was charged with residential burglary (first degree criminal 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 prove all of the fundamentals, namely that Devitt planned to commit a transgression against the person or possessions inside the dwelling. The court said obstructing a law enforcement official was enough, and let the case go to the jury. Devitt was found guilty of all the charges.

Issue - Is obstructing a police officer sufficient to meet the underlying offense requirement 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 intention to commit a misdeed against a person or property therein. To substantiate his posture that obstructing a law enforcement officer should not count 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 misdeed against a human being, much less anyone other than the cop.

The language of the residential burglary law requires a unambiguous transgression (against a human being or possessions) in a explicit place (inside a dwelling) and with a detailed intent (to go in the home to commit the misdeed). Because of this, more than just the intent to commit a offense usually is requisite.

The prerequisite that the misdeed intended to be committed be done “therein” or inside the lodging, is also crucial. In this case there was no law enforcement officer in the abode, making it hard for Devitt to have entered the house to commit that precise offense.

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

Tacoma DUI Lawyer’s Analysis - Really? Are you freaking kidding me? Why would the prosecutor even charge this misdeed, much less see it through to a jury trial and then claim their completely unreasonable opinion 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 Tacoma criminal attorney, so I am a little biased. But I am not the type of DUI 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 drunk driving 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 necessary to get this conclusion right.

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

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