Seattle DUI Attorney | Search and Seizure

Here we go again, a new run down of the criminal defense jurisprudence cases ruled in the preceding week in Washington State. As with last week, the amount of decisions out is minute - perhaps it has a bit to do with the holidays or something, so this post might not be that lengthy (though I doubt it). And bear in mind, as always, that although I am a Seattle DUI attorney, I would not suggest you receive my summary of these cases and my examination of these cases as gospel as you amble into court to talk to the judge.

If you truly require the benefit of one of these cases to help you, do the brainy thing and study the case. That way you can be rest secure that what you are uttering is accurate - or better yet, phone up a DUI attorney in Seattle to facilitate - you’ll be pleased you did.

The initial criminal defense case on our docket is State v. Hartzell, a state of affairs focused on the rules of evidence, 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 kind of state of affairs a criminal defense attorney cherishes because the facts was poor. It is not the kind of case a driving under the influence attorney loves since the prosecutor employed some fresh theories of utilizing the rules of verification that appeared to be dubious upon first review. Let’s see what the court has to state.

Facts - The victim was awakened in his residence by gunshots. He looked outside and witnessed a person shooting out of a red automobile. The car was moving as the shooting was going on so the victim assumed there was more than one individual. A separate victim heard the equivalent thing, and afterward located bullet holes in her bed. Fragments were drawn from the bed. afterward the cops searched the home of Hartzell’s buddy, who admitted to firing a pistol at a different time. According to ballistics, the pistol was that used during the firing described above.

The cops were then later on called to a reported crime where Hartzell was. The cops showed up, spotted a bullet hole in a sports car, and brought a search canine to try to locate the handgun that was used. The canine smelled in the sedan, then went out and discovered the firearm a few hundred yards away from the vehicle. This pistol also matched the bullets fired at the first described location.

Issues - Hartzell challenged the search of his vehicle as inappropriate and that previous incidents were inappropriately admitted to show that the defendants had a inclination to execute revolver crimes.

breakdown - First, regarding the search issue. The Washington State constitution protects individuals from needless searches of their individual and their private things. This stipulation is not violated if no search occurs. A search happens when the state interferes with a individual’s personal affairs. Usually, a search does not occur if an police officer is able to distinguish something utilizing one of his senses from a non-intrusive point of view.

With regard to dog sniffs, a search happens depending on the circumstances. Earlier decisions have held that a search does not happen if the sniff occurs in a place the person would not have a reasonable 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 car when the sniff occurred and the dog didn’t get into the car. The search was rational.

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

proof of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show 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 established. The trial court must: (1) unearth by a preponderance of the evidence that a offense happened; (2) identify the rationale for which the verification is sought to be introduced; (3) decide whether the evidence is relevant to determine the element of a offense charged; and (4) ponder the probative value against the prejudicial effect.

In this case, there was a realistic inference that the gun found 100 yards from Hartzell’s car was owned by him, particularly because the dog discovered the handgun after sniffing Hartzell’s vehicle. Bullets from the handgun was also discovered on Hartzell and in the van driven by Hartzell. Next, the prosecutor was attempting to use that facts not to demonstrate that the crimes formed an identity that may possibly demonstrate the first crime and the offense alleged were the similar, but that it was probable the defendants committed the crimes for the reason that they were found in control of the guns used in the offense shortly thereafter. Because of these facts, the court discovered that facts to be important. And in conclusion, the trial court’s scrutiny of the admission of the proof was sensible since it reasoned the lack of information about the occurrence would prevent the entrance of the information from being prejudicial.

Seattle DUI attorney’s breakdown - This isn’t the most excellent state of affairs I’ve ever seen, but the prosecutor was well inside their limitations to attempt to get this in. Do I believe the fact that these guys are located with the guns later on have any effect on what occurred under the crimes alleged? No. Because no one witnessed anything it is out of the question to make out who was utilizing those guns on the night in question. The prosecutors once again are drawing conclusion upon inference to arrive at their preferred conclusion - that these two guys committed the crimes. What I didn’t observe in any of this scrutiny (and granted, all of the evidence wasn’t here) was any corroboration that they committed the crimes alleged. As a criminal attorney in Seattle, I can absolutely see why this case was brought to trial - the proof just isn’t there.

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

State v. Bliss is a case about a traffic stop that resulted in the search of the sedan and the unearthing of meth. It brings up a hot issue 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 officer got behind her and checked the registration on her van. The cop discovered that Bliss had outstanding misdemeanor and felony warrants. He stopped the van, confirmed Bliss’s identity, and arrested her on the warrants. Upon arresting her, he searched the truck, discovering a tan handbag that contained a meth pipe and two small baggies of methamphetamine. The officer completed a property account prior to having the van towed.

Bliss’s Seattle driving under the influence defense lawyer moved to suppress the verification 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 van when Bliss drove by him. The trial court located the cop was correct in the stop and the search was legal.

Very soon before trial Bliss renewed her motion to suppress based on the hypothesis that the search was not occasion to the arrest. The court discovered the search was simultaneous 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 officer stops a person briefly to investigate a practical suspicion that criminal activity is afoot. Under this exception, the police officer must have a realistic suspicion that offense is afoot. The realistic suspicion must be based on specific facts connected to the specific person stopped such that the stop and investigation is logical 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 cop stopped Bliss, he knew the owner had outstanding misdemeanor and felony warrants. He also knew the individual driving the sports 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 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 van. This question is sent back down to the trial court to analyze the topic under Gant.

driving under the influence lawyer in Seattle analysis - 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 could 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 afterward the car was impounded, which suggests the sports car would have been searched to inventory the van. Whether that includes a search of the inside of the bag remains to be seen.

Gant has actually given a tool for DUI attorney in Seattle to use on a regular basis, particularly since cops 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 incident to arrest. I guess we’ll see…

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Seattle DUI Attorney | Don't Talk to the Cops - Ever

I have a lot of DUI defense clients in Seattle. Nearly all are individuals just resembling you and me. Regular individuals. The lone variation is they customarily have committed solely one substandard fault that they are at the moment facing sentence for. For nearly all it is a Seattle driving under the influence allegation or marijuana possession accusation.

But because my patrons have typically never been in trouble beforehand beyond the indiscriminate speeding ticket here and there, they retain no inkling how to intermingle amid the cops when they get there and are investigating you for a criminal act. This is for two main reasons: firstly, since of the media (including advertising by the cops) we naturally believe the cops are out there to help us; and second, the cops identify this and play to this, and use their power as habitually as feasible to induce you to do things you don't desire to do.

If my customers would have just paid attention in social studies lecture in high school and government class in high school (or read the DUI Attorney Seattle Blog), or actually examine those police officer shows that are all over television, they would know that when the cops show up and are investigating a criminal act, they are not your pal. They are nearby for one aim only - to collect proof against you. And the most excellent approach the get that information is you - that's correct, regularly you create your own bed when it comes to the DUI charges you face.

Like I said, I'm a Seattle DUI attorney. There is not anything I like to observe less than a law enforcement commentary that includes a lot of my client's statements. They never help - they constantly damage. And they are frequently the prime foundation for the accusations my client is in front of.

So, what should you do if you are investigated for a felony? First, shut your mouth. And don't open it unless you would like to speak the expression "get me a lawyer." If not you are simply hurting yourself. Second, when you say those terms, undertake 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 worries, your ethics, and the effects you care about, hostile to you. Just stay calm until you have a DUI attorney in Seattle at hand to help you. It will make a enormous modification.

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Seattle DUI Attorney | Guns and Burglary

A different week, an additional post reviewing the important criminal defense law case decisions from the Court of Appeals and the Supreme Court of the State of Washington. Even though last week there was an significant decision that affects a Seattle DUI attorney, this week, the actual effect of the cases on the practice of law for your average criminal defense lawyer 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 announce any new cases of significance. The Division II case concerns something criminal defense attorneys in Seattle will run into from time to time, or at least face inquiries on - the restoration of weapon rights after a drunk driving 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 transgression requisite 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 individual convicted of a misdeed. Mihali, in 2000, was convicted of conspiracy to manufacture a controlled substance (i.e. drugs - most likely methamphetamine). In 2004 Mihali received a documentation from the Department of Corrections that she had fulfilled the terms of her sentence, was discharged from DOC supervision, and had all of her civil rights restored (right to vote, etc.) with the exception of the entitlement to own and/or have 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 required 10 years had not elapsed since her conviction was finished, which is a requirement 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 entitled to have her right to have a gun 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 plead the court to have their right to have 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 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 good one: (1) five or more years in the neighborhood without being convicted or currently charged with a transgression; and (2) no earlier felony convictions in her dui history that would be incorporated in her offender score computation that disallow possessing a gun. The subject in scrutiny here is the date from which the second prong of the examination 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 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 gun restoration. Although the decisions in these cases were not precisely on point because they weren’t discussing this statute specifically, the analysis is parallel. Also, this is reflected in the Legislative history of the statute.

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

Seattle 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 ruled 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 drunk driving 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 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 elements of Seattle residential burglary, namely whether or not obstructing a law enforcement officer counts as the predicate offense requisite for a guilty verdict of residential burglary. The case begins with the cops believing Devitt stole a car and was implicated in a hit and run. The cops spotted him close by 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 conversed to the woman, had a goblet of iced tea, made a phone call (with her permission), and just hung out waiting for the officers to leave. The lady said she wasn’t in concern for her wellbeing. 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 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 offense against the person or belongings inside the dwelling. 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 adequate to meet the underlying transgression prerequisite 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 truck with intent to commit a offense against a individual or belongings therein. To prove his posture that obstructing a law enforcement officer should not make a difference 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 crime against a individual, much less anyone other than the officer.

The words of the residential burglary law requires a specific transgression (against a self or possessions) in a definite place (inside a dwelling) and with a precise intent (to go into the house to commit the crime). Because of this, more than just the intent to commit a transgression generally is obligatory.

The requirement that the misdeed 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 dwelling, making it hard for Devitt to have entered the apartment to commit that detailed misdeed.

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

Seattle DUI Lawyer’s Analysis - Really? Are you freaking kidding me? Why would the prosecutor even charge this transgression, much less see it through to a jury trial and then contend their completely irrational view 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 Seattle DUI attorney, 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 criminal defense justice system, make everyone grumpy, and make defense lawyers 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 obligatory to get this conclusion 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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