Seattle Criminal Attorney | Possession of Drugs - Evidence

Here we go once more, a new run down on the Seattle Criminal Attorney's Blog of the criminal defense law cases determined in the most recent week in Washington State. As with last week, the amount of decisions released is mimimal - possibly it has something 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 Seattle criminal attorney, I would not advise you take my synopsis of these cases and my analysis of these cases as gospel as you saunter into court to speak to the judge. If you in reality require the help of one of these cases to assist you, do the brainy thing and read the situation. That way you can be rest assured that what you are uttering is right - or better yet, call up a criminal defense lawyer in Seattle to help - you’ll be happy you did.

The primary criminal state of affairs on our docket is State v. Hartzell, a situation focused on the rules of evidence, namely 404(b). Here we go.

State v. Hartzell is a case about armed assault and unlawful possession of a handgun. It is the type of case a criminal defense lawyer enjoys because the verification was slight. It is not the variety of state of affairs a criminal defense attorney cherishes since the prosecutor employed some original theories of utilizing the rules of evidence that appeared to be odd upon first review. Let’s see what the court has to state.

Facts - The victim was awakened in his abode by gunshots. He peered outside and spotted a person firing out of a red automobile. The vehicle was moving as the shooting was going on so the victim assumed there was more than one person. A separate victim heard the same thing, and later discovered bullet holes in her bed. Fragments were pulled from the bed. later on the police searched the dwelling of Hartzell’s friend, who admitted to firing a revolver at a different time. According to ballistics, the revolver was that used during the shooting described above.

The police were then afterward called to a reported offense where Hartzell was. The police showed up, viewed a bullet hole in a sedan, and brought a search dog to attempt to uncover the pistol that was used. The dog smelled within the sports car, then went out and located the firearm a few hundred yards away from the car. This revolver also matched the bullets fired at the first described location.

Issues - Hartzell challenged the search of his automobile as illegal and that earlier incidents were wrongly admitted to show that the defendants had a propensity to carry out handgun crimes.

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

With regard to canine sniffs, a search happens depending on the circumstances. Previous decisions have held that a search does not happen if the sniff occurs in a spot the person would not have a realistic expectation 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 automobile when the sniff happened and the dog didn’t get into the sedan. The search was reasonable.

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

facts of other crimes, wrongs, or acts is not admissible to prove the character of a person 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 verification under this rule is well recognized. The trial court must: (1) find by a preponderance of the proof that a crime occurred; (2) identify the purpose for which the facts is sought to be introduced; (3) conclude whether the facts is pertinent to determine the element of a crime charged; and (4) evaluate the probative value against the prejudicial effect.

In this occurrence, there was a logical supposition that the firearm located 100 yards from Hartzell’s van was possessed by him, particularly given that the dog found the pistol after sniffing Hartzell’s car. Ammunition from the gun was also found on Hartzell and in the vehicle driven by Hartzell. Next, the prosecutor was trying to use that facts not to illustrate that the crimes formed an identity that may possibly demonstrate the first crime and the offense alleged were the identical, but that it was likely the defendants committed the crimes for the reason that they were discovered in control of the guns used in the offense shortly thereafter. Because of these specifics, the court discovered that facts to be relevant. And to end with, the trial court’s examination of the admission of the facts was sensible since it reasoned the lack of data about the occurrence would preclude the entrance of the information from being prejudicial.

Seattle criminal defense attorney’s breakdown - This isn’t the most excellent case I’ve ever seen, but the prosecutor was well inside their limitations to try to get this in. Do I believe the fact that these guys are discovered with the guns later have any bearing on what occurred under the crimes alleged? No. Because no one spotted anything it is impossible to recognize who was utilizing those guns on the night in question. The prosecutors once again are drawing conclusion upon conclusion to arrive at their desired conclusion - that these two guys committed the crimes. What I didn’t see in any of this analysis (and granted, all of the facts wasn’t here) was any evidence that they committed the crimes alleged. As a drunk driving attorney in Seattle, I can certainly see why this state of affairs was taken to trial - the facts just isn’t there.

Next we have State v. Bliss, a situation on the subject of possession of meth, search and seizure, and van stops.

State v. Bliss is a state of affairs about a traffic stop that resulted in the search of the sedan and the discovery of meth. It brings up a hot subject these days, the search incident to arrest and Gant v. Arizona. Let’s look at on and see what happens.

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

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

Immediately before trial Bliss renewed her motion to suppress founded on the premise that the search was not event to the arrest. The court discovered 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 issue here, is when an officer stops a individual briefly to investigate a realistic suspicion that driving under the influence activity is afoot. Under this exception, the officer must have a realistic suspicion that crime is afoot. The reasonable suspicion must be based on specific facts connected to the specific individual 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 officer stopped Bliss, he knew the owner had outstanding misdemeanor and felony warrants. He also knew the individual driving the vehicle 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 truck. This topic is sent back down to the trial court to analyze the question under Gant.

driving under the influence attorney in Seattle analysis - This was probably the right thing to do here. If the issue 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 conclude if the search was legal. One thing I did come across interesting in this opinion was the fact that later on the car was impounded, which suggests the van would have been searched to inventory the motor vehicle. Whether that includes a search of the within of the bag remains to be seen.

Gant has actually given a tool for criminal lawyers in Seattle 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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I get several of drunk driving defense clients in Seattle (I am, after all, a Seattle criminal attorney). The majority are individuals just akin to you and me. Common citizens. The only disparity is they usually have committed just one bad misstep that they are now facing reprimand for. For the majority it is a Seattle DUI allegation or cocaine possession allegation.

But since my patrons have ordinarily never been in difficulty in the past beyond the random speeding infraction here and there, they hold no notion how to intermingle in the midst of the cops once they arrive and are investigating you for a drunk driving. This is for two prime reasons: first, since of the media (including advertising by the police) we innately trust the cops are out there to aid us; and second, the police know this and play to this, and make use of their authority as often as possible to persuade you to do things you don't desire to do.

If my consumers would have simply paid attention in social studies lecture in high school and government class in high school, or in fact watch those cop shows that are all over tube, they would appreciate that as soon as the police show up and are investigating a criminal act, they are not your friend. They are near for one basis only - to gather evidence critical of you. And the preeminent means the get a hold that information is you - that's right, repeatedly you construct your own bed when it comes to the Seattle drunk driving accusations you face.

Like I said, we're criminal attorneys Seattle. There is not anything I like to observe less than a law enforcement commentary that includes a bunch of my client's statements. They never assist - they always damage. And they are often the primary core for the charges my client is facing.

So, what should you do if you are investigated for DUI? First, shut up your mouth. And don't open it unless you would like to say the expression "get me a attorney." Otherwise you are just hurting yourself. Second, after you say those terms, make an effort 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 chatting. This includes using your qualms, your ideology, and the belongings you care about, in opposition to you. Just stay calm until you have a Seattle DUI attorney there to aid you. It will generate a gigantic modification.

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A different week, an additional post on the Seattle Criminal Attorney's Blog reviewing the key criminal defense law case decisions from the Court of Appeals and the Supreme Court of the State of Washington. Though last week there was an key 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 criminal lawyer is small.

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 make public any fresh cases of consequence. The Division II case concerns something DUI defense lawyers in Tacoma will run into from time to time, or at least face questions on - the restoration of gun rights after a driving under the influence guilty verdict. The Division III case concerns the elements of residential burglary and whether or not obstructing a law enforcement officer counts as the predicate crime 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 human being found guilty of a misdeed. Mihali, in 2000, was found guilty of conspiracy to manufacture a controlled substance (i.e. drugs - almost certainly methamphetamine). In 2004 Mihali received a official recognition from the Department of Corrections that she had finished the terms of her prison term, was discharged from DOC supervision, and had all of her civil rights restored (right to vote, etc.) except the entitlement to have possession of 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, disagreeing that the obligatory 10 years had not elapsed since her conviction was finished, which is a prerequisite because she was convicted of a class B felony. The court settled with Mihali and restored her firearms rights - the State appealed.

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

Analysis - weapon restoration rights are governed by RCW 9.41.040(4). It states that a person devoid of a guilty verdict for a sex offense or a Class A felony may request the court to have their right to hold 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 convicted 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 firearm 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 found guilty or currently charged with a offense; and (2) no prior felony convictions in her dui defense history that would be included in her offender score computation that ban possessing a firearm. The matter 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 time 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 conviction. If the state’s view is adopted, Mihali is not suitable. 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 planned the look back period to be from the date of the petition for weapon restoration. Although the decisions in these cases were not completely on point because they weren’t discussing this law explicitly, the breakdown is analogous. In addition, this is reflected in the Legislative history of the statute.

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

Everett dui attorney’s Analysis - In cases such as these, whether or not the law appears to be fair, it is the law. I think the court ruled the way that it should have, even though it forces Mihali to wait five more years to have her weapon rights restored. It was most likely worth a shot from Mihali’s criminal defense attorney because the topic 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 weapon right restoration, Mihali had a felony guilty verdict 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 required for a conviction of residential burglary. The case starts with the cops believing Devitt stole a car and was concerned in a hit and run. The cops viewed 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 talked to the woman, had a schooner of iced tea, made a telephone call (with her authorization), and just hung out waiting for the cops to leave. The woman said she wasn’t in anxiety for her safety. After a bit she went outside to take out the trash and let the cops know Devitt was in her high-rise.

Devitt was charged with residential burglary (first degree criminal defense 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 offense against the person or possessions inside the home. The court said obstructing a law enforcement officer was enough, and let the case go to the jury. Devitt was found guilty of all the charges.

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

Analysis - Residential burglary is defined in RCW 9A.52.025(1) as: entering or remaining unlawfully in a home other than a truck with intent to commit a offense against a human being or belongings therein. To corroborate his position that obstructing a law enforcement officer should not be significant as the underlying transgression, Devitt pointed the court to the prosecutor’s standards for charging crimes. Obstructing a law enforcement officer is not characterized anywhere as a crime against a human being, much less anyone other than the cop.

The language of the residential burglary statute requires a unambiguous misdeed (against a individual or belongings) in a definite place (inside a dwelling) and with a explicit intent (to go in the home to commit the offense). Because of this, more than just the intent to commit a transgression usually is required.

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

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

Tacoma DUI defense Lawyer’s Analysis - Really? Are you freaking kidding me? Why would the prosecutor even charge this crime, much less see it through to a jury trial and then make a case their completely irrational opinion to the court of appeals? And why would the trial court judge not read the law and realize the elements of the transgression had not been met? I am a Bellevue criminal lawyer, so I am a little biased. But I am not the type of 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 criminal justice system, make everyone grumpy, and make Seattle 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 requisite to get this decision right.

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

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