Evolution of Search and Seizure Law Re: Blood Draws in the DUI Context (Part 1)

August 27, 2014,

By:Brent Thompson

Any warrantless search or seizure is presumed unlawful aside from a few jealously guarded exceptions. Traditional exceptions include but are not limited to (1) consent; (2) incident to arrest; (3) hot pursuit; and (4) exigent circumstances. Exigent circumstances concern situations where there is an emergency where obtaining a warrant is impossible or impracticable. Exigent circumstances may exist where there is a risk of immediate destruction of evidence or imminent danger of substantial injury where police must act quickly and have no time to get a warrant. One classic example of exigent circumstances is where the police know that a person is about to flush drugs down the toilet--obtaining a warrant is unrealistic and police must react quickly to prevent the destruction of evidence.

For decades courts in Washington believed that the natural dissipation of alcohol or drugs in the human body constituted an exigent circumstance that permitted law enforcement to subject individuals to nonconsensual warrantless blood draws in the DUI context. This belief was incorrect. Unfortunately a major flaw in legal reasoning became embedded into Washington state case law for decades.

Schmerber v. California--1966

It all began with the Schmerber v. California opinion issued in 1966. In Schmerber, the United States Supreme Court held a nonconsensual warrantless blood draw did not violate a defendant's Fifth Amendment rights because he was not compelled to give testimonial or communicative evidence. Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826 (1966). The court also held there had been no violation of the petitioner's Fourth Amendment right to be free from unreasonable searches and seizures. Schmerber, 384 U.S. at 772. The court reasoned:

The officer in the present case, however, might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened 'the destruction of evidence,'. We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to the petitioner's arrest.

Id. at 770-771 (citations omitted). The language in the block quote above was viewed differently by courts across the nation.

Split Authorities and Washington Case Law

Schmerber caused a split of authority. Lower courts differed on the question of whether Schmerber held the natural dissipation of alcohol in the bloodstream alone establishes an exigency that suffices to justify an exception to the warrant requirement for blood testing in DUI investigations. Missouri v. McNeely, -- U.S. --, 133 S.Ct. 1552, 1558 (2013).

Some courts believed Schmerber meant the state could force nonconsensual warrantless blood testing incident to all DUI arrests. See, e.g., Burnett v. Municipality of Anchorage, 806 F.2d 1447, 1449-1450 (9th Cir. 1986) (claiming Schmerber rejected warrant requirement and permits search incident to arrest); State v. Machuca, 347 Or. 644, 657, 227 P.3d 729 (Or. 2010) (evanescent nature of a suspect's blood alcohol content is an exigent circumstance that will ordinarily permit a warrantless blood draw); State v. Shriner, 751 N.W.2d 538, 545 (Minn. 2008) (holding dissipation of alcohol in defendant's blood creates single-factor exigent circumstances justifying warrantless nonconsensual blood draw); State v. Bohling, 173 Wis.2d 529, 533, 494 N.W.2d 399 (Wis. 1993) (same); State v. Woolery, 116 Idaho 368, 370-371, 775 P.2d 1210 (Idaho 1989) (same). Washington case law is permeated with this view of Schmerber. See, e.g., City of Seattle v. Stalsbroten, 138 Wash.2d 227, 235-236, 978 P.2d 1059 (1999) ("[T]here is no constitutional right not to take the blood test. According to the Court, blood alcohol tests are so "safe, painless, and commonplace," that the State could legitimately require suspects to take the test. [citing South Dakota v. Neville and Schmerber]. Given that the State could require suspects to take the test, the State can also legitimately offer suspects the option of refusing the test, with attendant penalties."); State v. Bostrom, 127 Wash.2d 580, 590, 902 P.2d 157 (1995) ("Both the United States Supreme Court and this court have held that the State can constitutionally force a defendant to submit to a blood alcohol or breathalyzer test. [citing Schmerber and State v. Moore, infra]"); State v. Judge, 100 Wash.2d 706, 711-712, 675 P.2d 219, 222-223 (1984) ("Furthermore, the Schmerber court rejected defendant's contention that a warrant must be obtained before blood samples may be taken."); State v. Zwicker, 105 Wash.2d 228, 239 n.2, 713 P.2d 1101 (1986) (In Schmerber the Court held that withdrawal of blood to determine blood alcohol content and its admission in evidence did not abridge the federal constitutional guaranties of...the right to be free from unreasonable searches and seizures."); State v. Wetherell, 82 Wash.2d 865, 869-870, 514 P.2d 1069 (1973) ("[Schmerber] held that the extraction of the blood sample from the defendant was tantamount to a search for and seizure of real or physical evidence which was governed by the fourth amendment to the United States Constitution. The warrantless nature of the designated search was justified upon the grounds that it was incident to a lawful arrest coupled with a reasonable emergency I.e., the progressive diminution of the blood-alcohol level during the time interval incident to obtaining a search warrant."); State v. Baldwin, 109 Wash.App. 516, 523, 37 P.3d 1220 (Wash. Ct. App. 2001) ("Schmerber held that a blood test can be taken without consent to determine alcohol intoxication because the delay necessary to obtain a warrant threatens the destruction of the evidence. Alcohol dissipates quickly after drinking stops, and there may be little time to seek out a magistrate and secure a warrant." (internal citations omitted)); Baldwin, 109 Wash.App. at 525 ("Without knowing what drugs have been ingested or how long a particular drug stays in the system of a particular person, the arresting officer faces an emergency situation when the facts and circumstances indicate that a suspect has been driving under the influence of drugs or drugs and alcohol.").

Other courts read Schmerber as requiring "special facts" beyond mere natural dissipation of alcohol for an exigency to exist to justify a nonconsensual warrantless blood draw. See, e.g., State v. McNeely, 358 S.W. 65 (Mo. banc 2012); United States v. Chapel, 55 F.3d 1415, 1419 (9th Cir. 1995) (holding arrest is not a constitutional prerequisite, but officer must (1) have probable cause to believe suspect committed offense, (2) must reasonably believe an emergency exists in which delay necessary to obtain warrant would threaten loss of destruction of evidence, and (3) procedure to extract sample must be reasonable); State v. Johnson, 744 N.W.2d 340, 344 (Iowa 2008) (officer reasonably believed he was confronted with emergency situation in which the delay necessary to obtain search warrant threatened destruction of evidence of intoxication under circumstances where driver caused an accident resulting in serious injuries, left scene of accident on foot, was later located several blocks away, failed field sobriety tests, was arrested, refused breath test, was transported to hospital where he had his blood drawn more than two and one-half hours after the accident); State v. Rodriquez, 156 P.3d 771, 772-773 (Utah 2007); id. at 780-781 (Under totality of circumstances analysis, probable cause and exigent circumstances justified warrantless blood draw from defendant who driver in automobile collision; vodka bottle was found at the scene, officer noted defendant's slurred speech, bloodshot eyes, and odor of alcohol when he encountered her at the hospital, and the collision was of a serious nature, as driver's passenger was expected so succumb to her injuries); see also United States v. Berry, 866 F.2d 887, 891 (8th Cir. 1989) (reading Schmerber as an application of the exigent circumstances to the warrant requirement although "Schmerber cast its decision in terms of a 'search incident to arrest' exception to the warrant requirement.").

In short, some jurisdictions adopted the view that the mere natural dissipation of alcohol or drugs in the human body alone presents a sufficient exigent circumstance which permits a lawful nonconsensual warrantless blood draw incident to arrest in all DUI type cases. Others jurisdictions adopted the view that the Fourth Amendment holding in Schmerber was fact specific--i.e. there was an emergency in Schmerber that presented an exigent circumstances under the particular facts of the case which made it impracticable for the officer to obtain a warrant under the circumstances and therefore the nonconsensual warrantless blood draw was legal. This split in authorities was not resolved until 2013.

Missouri v. McNeely Resolves The Split Of Authorities--2013

In McNeely, Tyler McNeely was stopped for speeding and repeatedly crossing the centerline. McNeely, 133 S.Ct. at 1556. McNeely was arrested after performing poorly on SFSTs and declining a portable breath test. Id. at 1556-1557. McNeely then told the officer he would refuse to provide a breath sample at the station. The officer did not attempt to secure a warrant. The officer drove McNeely to a hospital:

Upon arrival at the hospital, the officer asked McNeely whether he would consent to a blood test. Reading from a standard implied consent form, the officer explained to McNeely that under state law refusal to submit voluntarily to the test would lead to the immediate revocation of his driver's license for one year and could be used against him in a future prosecution. McNeely nonetheless refused. The officer then directed a hospital lab technician to take a blood sample.... Subsequent laboratory testing measured McNeely's BAC at 0.154 percent....

McNeely, 133 S.Ct. at 1557 (citations omitted). The United States Supreme Court held that the natural metabolization of alcohol in the bloodstream does not present a per se exigency that justifies an exception to the Fourth Amendment warrant requirement for nonconsensual blood testing. Id. at 1556. The court affirmed suppression of McNeely's blood draw results. Id. at 1558. The United States Supreme Court clarified that "[i]n those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so." Id. at 1561. The United States Supreme Court also rejected assumptions that have been embedded in Washington case law for decades:

Here and in its own courts the State based its case on an insistence that a driver who declines to submit to testing after being arrested for driving under the influence of alcohol is always subject to a nonconsensual blood test without any precondition for a warrant. That is incorrect.

Id. at 1568; compare Stalsbroten, 138 Wash.2d at 235-236; Bostrom, 127 Wash.2d at 590; Judge, 100 Wash.2d at 711-712; Zwicker, 105 Wash.2d at 239; Wetherell, 82 Wash.2d at 869-870; Baldwin, 109 Wash.App. at 523; id. at 525; et al. The United States Supreme Court reaffirmed the warrant requirement:

Noting [in Schmerber] that "[s]earch warrants are ordinarily required for searches of dwellings," we reasoned that "absent an emergency, no less could be required where intrusions into the human body are concerned," even when the search was conducted following a lawful arrest. We explained that the importance of requiring authorization by a " 'neutral and detached magistrate' " before allowing a law enforcement officer to "invade another's body in search of evidence of guilt is indisputable and great."

Id. at 1558. The United States Supreme Court also clarified the proper reading of Schmerber. See id. at 1559-1560. It explained the Fourth Amendment holding in Schmerber was indeed fact specific and narrow. Id. at 1559-1560.

Today, in light of McNeely, we know that a fairly significant line of Washington jurisprudence is bad law. McNeely has also led to recent and significant evolution in search and seizure law concerning blood draws in the DUI context. For example, we have seen this evolution most recently in the July 21, 2014 Division One Court of Appeals case State v. Martinez. There, Division One held that the state may not conduct tests on a lawfully procured blood sample without first obtaining a warrant that authorizes the testing and specifies the types of evidence for which the sample may be tested. State v. Martinez has had a major impact on DUI type cases in Washington in recent months including those handled by our office. State v. Martinez will be discussed further in later blogs.

Fergusson, MO and Me

August 25, 2014,

Tank.jpgMimi always says I manage to turn everything into stories about me, but this is hard not to. This is where I grew up. Well, not exactly. But my parents and older sisters lived in Fergusson right before I was born. I grew up hearing this sort of idealized fairy tale about the land where houses were cheap and the St Louis Cardinals were playing a short drive away. WWII G.I. Nirvana. Wife, two kids, house for $10K, the All American Dream.

Now? Not so much. It is disconcerting to see this. For many reasons. As a lawyer, one of the most disconcerting things is the way that completely incorrect legal analysis seems to rule the airwaves.

There are three primary legal issues involved in the situation unfolding in Ferguson. First is the standard dictating when police can and cannot stop someone to see what they are up to. The second is what sort of force is appropriate during such an investigatory stop, according to the circumstances as they occur. The third is the response of law enforcement to the demonstrations and the civil unrest that has followed.

Let's take the easy one first. Americans have a First Amendment Right to Assemble and Speak Freely. That is so fundamental. It is what the Founders did to create our government. They almost immediately made it the First Amendment to the Constitution once they figured out that they had given all the power to the Government without really thinking that through. They fixed their mistake by making sure that everyone in this country had a right to criticize the Government. Period. What a beautiful concept. I get paid every day to challenge the Government, and even that fundamental right is not found until several amendments after the First.

So, we have Free Speech and that shall not be infringed. There are exceptions, and that is where the Riot Police come in. I have no doubt that as the situation escalated the police were required to intervene with escalating force. That is not the issue. The issue is how did that happen?

Simple. Motivational speakers, or lawyers like me [who teach trial tactics to young lawyers] love the old trick where you pick someone out of the audience and push the palm of their hand as they stand across from you on the stage. Without exception that person will push back. Then you make the point that in every negotiation or act of persuasion if you push, the other person will just push back.

This is what happens when a bunch of cops show up in the type of body armor and heavy artillery that would have been the envy of many impoverished service members in Iraq. It pushes people. They push back. It escalates. Duh.

The second question is the issue of the initial stop, something about which I have yet to hear one single intelligent observation expressed on popular media. It boggles my mind that the pundits actually get paid.

The standard is simple. Reasonable articulable suspicion. i.e. Can you say why it is that you want to stop this person and ask them questions and is what you say reasonable. Would it make a reasonable person want to ask those same questions in order to find out what is going on? If you can say why you are suspicious and that is reasonable then you can, and normally should, ask away. The answer can never be, simply, "because he was black". That is not reasonable.

There is no requirement that the information is coming directly from the victim. A witness will do. After all, in some cases, the victim is dead or their phone line is cut. I know I sound like a prosecutor, but not to anyone who actually knows the law. That is what it is. You get what appears to be legit intell on a robbery of some sort and you see someone matching the description and you can stop them and ask questions.

The fact that race is involved is irrelevant, except that it helps identify the suspect. If a fat, bald, formerly red headed white guy robs a bank they better be stopping me if I am speeding away in a stolen car as the bank's alarm blares behind me. The more problematic scene is where the suspect is described as African American and the cops cast their net too broadly.

However, that is really a societal problem. Because legally it's ok. I do NOT like that it is ok. Every day I fight that. But the law is what it is. The fact that the officer stopped X to ask him questions happens every day and if that is wrong we need to look very closely at what should be OK for cops to rely upon and what should not be OK. As it stands right now [sorry pundits] it was legal. Period.

Which brings us to what happened next. That is the easiest of all. Because I have no idea. I was not there. I have not seen all of the discovery. I have not interviewed a single witness, have never talked to the cop who shot him. Just like all the know-it-all pundits.

And that is my point. The stop was valid. What happened next needs to be determined in a court of law. What happened after that is obviously a problem from which we need to learn. We need to remember that the right to protest is FUNDAMENTAL and the way we handle volatile situations can shape how they turn out.

I just hope that everyone at least tries.

Why I am Against the Death Penalty

August 4, 2014,

death penalty gurney.jpg
China, Iran, North Korea, and The U.S.A. What do we all have in common? How could we possibly have anything in common with those despotic dictatorial terroristic States? You guessed it. We all kill people who commit crimes. Great company, huh? It reminds me of the old W.C. Fields line about not wanting to belong to a club that would let him in. In fact we are the only supposedly superior "G7" country that still believes in this barbaric form of torture.

The Death Penalty. I'm against it. Big time. Frankly, all you have to do is look at the company we are keeping to know it's a problem. I mean North Korea? Really? The country that is starving its people to death in order to control them? Hiding rice in giant warehouses as it rots while the people starve? They kill people for just thinking things. So we want to be in that club? I mean, if you went to a party and the only other people in the room were these guys wouldn't you think twice about staying? So why do we?

Simple. Fear. And ignorance. And a complete disconnect between what we say and what we do. There is nothing that is not cruel and unusual about the death penalty. Just read the Eighth Amendment. How it is not unconstitutional is beyond me, no matter how many lame supreme court opinions I read. Justice Utter, that brilliant jurist, agreed. He quit the Washington State Supreme Court because of it.

When you read about Justice Utter, his background, his integrity and life experience, and above all, his compassion and intelligence, and his unwavering opposition to this grotesque form of "punishment" you can't help but wonder. Unless you don't have an especially inquiring mind, maybe. If he feels this way, and Kim Jong Un disagrees with him, who're ya gonna believe? If you are hesitating at all I have some rotting rice jammed into giant warehouses to sell you.

The latest horrific story is the botched execution of one Joseph Wood in Arizona, just last week. Are you kidding me right now? Again? Another prolonged torture session thanks to the reject chemists that are cooking up the poison used to put the bad guys down like dogs? Why not just blow them up? Like Al Queda does? I mean, those guys know how to kill people. What is wrong with us, anyway? Oh wait, I forgot, we are the same country that created and wrote into law the whole concept that we would not be cruel and unusual, making us better than everyone else. Supposedly. But when I read about the two hours Mr. Wood spent anguishing as his lawyers frantically tried to invoke his constitutional rights and save him from this inhumane treatment, I get sick to my stomach. What a joke. Who cares what he did. We are not China and Russia and the rest of them. We are the U.S. of A.

Oh wait, Russia has a moratorium on the death penalty too. Buncha commies.
:~

So we need to look at ourselves closely in the mirror and ask what we see. Kim Jun Il, the guy who fed his uncle to dogs, or our heroes, the folks who created our entire system of government, the Founders of the United States? Take your pick. To me it's a no brainer. Maybe that's the problem. You know it's cruel when you see it. You know it's unusual when you find yourself hanging out with Kim J., the dog whisperer, Dennis Rodman's friend. Get the picture?

kim and rodman.jpg

Thank goodness we live in a state where our Governor is enlightened enough to save us from ourselves by declaring a moratorium on the death penalty here.

It brings tears to my eyes to see that Justice Utter teared up at the news. Maybe if more people really thought about it we could learn something and rise up above China and Iran and North Korea and their evil ways. Heck. If we work hard enough we might even catch up with Russia! Get it?

Lawyer Confidentiality Matters

August 1, 2014,

I am sitting at one of my favorite spots in Ballard on a beautiful summer afternoon. Miro Tea. It's great because the wi-fi is fast, it's quiet, and you can sit on the sidewalk and work away while everyone else strolls by being relaxed. Since college I have loved working in this type of environment. Hey, it got me into Stanford Law School. So say what you will.

Years ago, it was the noisier the better, but these days I prefer the quiet click click click of bloggers blogging and soccer moms posting on Facebook to the loud rock n roll of my youth. It's too distracting now when I am trying to do real work. But there's a problem.

The problem, ironically, is that there is some lame lawyer sitting right next to me, practically screaming supposedly confidential advice into his cell phone for all of us to hear. In case any of us wonder why he would do such a thing, it might be relevant that he is saying the words "Lawyer" and "Court" over and over. And over. Gosh. He must be a lawyer. Guess what? So am I. In fact, I actually know him, but unlike him I am doing my best to be inconspicuous and make sure nobody can see what I am doing. I was writing a brief, but he is so loud and obnoxious that I can't concentrate. So, I thought it might be fun to take a short break and vent by slamming him as I wait for him to leave.

The real issue I have with this type of behavior is that it just doesn't happen out here on the sidewalk on beautiful Ballard Avenue on a nice summer day. I see it in courthouses every day. Lawyers talking away with their clients about their cases without even bothering to lower their voices. Calling across crowded court rooms, blurting out information that is not meant for public consumption. I mean, get a room people! They have them you know. They are called attorney client conference rooms, found in almost every courthouse, and I basically refuse to talk to clients unless I am safely behind their closed soundproof doors. This one is a classic. He is using their actual names! I might even be the opposing counsel on one of these cases. Which could be very interesting since he is blab blab blabbing away, discussing strategies and different approaches to the case, for me to hear.

What can he be thinking? Oh, wait. He isn't. If he could think that deeply he might even be able to read. He might even be able to read the RPC's, or Rules of Professional Conduct. RPC 1.6 for example. The one about confidentiality. The one that says we have to be super careful to keep all communications with clients confidential. I can tell you that his client has NO IDEA that he is broadcasting to the entire greater Ballard downtown core. They probably think he is sitting at his desk in his office behind a closed door. But he isn't.

I can't wait for him to hang up. I want to smile at him and say, "Hey, Counsel." It's what the old dogs like me say to other lawyers when we don't know their names. It's a bit old school, I know, but we are supposed to be lawyers, not hipsters. It always makes the youngsters startle a bit when I do that. You can tell they are mystified how I was able to tell that the harried looking person in the courthouse elevator with the giant stack of files is a lawyer. But, they will learn. They're obvious.

But not as obvious as this fool. I hope he reads this. I am annoyed that anyone who is charged with the sacred duty and honor to protect their clients' lives would have so little regard for their privacy. Or for their own ethical obligations.

So, when you work with a lawyer, ask them. Do you sit in tea shops and scream at your clients on your cell phone?? If they hesitate, find another lawyer. One who can read.

Another False Accusation Bites the Dust

July 18, 2014,

Well, go figure. I really did not intend to focus so much on sex crimes right now, but things happen. Like the woman who has been defaming and falsely accusing one of my favorite young musician / songwriters, Conor Oberst (aka Bright Eyes) , suddenly retracting her previous lies about the poor guy. [BTW, notice how the aka makes him sound like a criminal if you don't know him? This is why prosecutors love to pile on the AKA's when they file charges. It just sounds bad.]

Turns out, the woman was making stuff up. In her retraction, Joan Elizabeth Harris aka Joanie Faircloth states that she fabricated on-line accusations of being sexually assaulted by the musician ten years ago. The false accusation had been published in the comments section of an XO Jane article in December of 2013, where they quickly spread on Tumblr. But not before the lies had damaged his career.

Turns out, that rumors were spreading that Oberst had been fired from his record label, Nonesuch, which would have lent great weight to their truthfulness, if it had really happened. (It appears he never was fired.) I mean, what self-respecting record label wants to lose money? The common reaction would be that it must be true if the record label is willing to take such a drastic (and costly) step. Kind of like it must be true when the prosecutor is working so hard to lock up someone who has been accused of rape. Why go through all that trouble if it is all based on lies?

Well, Ms. AKA-Whatever supplies us with one explanation for why people might lie: She was going through a "difficult period" in her life due to her son's illness. Huh? I mean, too bad about the son, but what does that have to do with anything? Just goes to show you. There can be as many reasons for people to make up something as serious as raping a sixteen year old as there are people in the world. Oh yes, she claimed that this happened when she was 16, back in 2003, ten years before she made her public claims. If ten years passing before someone cries rape is not a red flag, I don't know what is.

We criminal defense lawyers, and prosecutors too, for that matter, refer to this as "delayed reporting". It is a possible clue that the accusation is fabricated. The person making the claim has had ten years to develop their story, after all. When something that bad happens you would normally expect them to come forward sooner.

It is not that real rapes don't go unreported. Tragically, that happens every day. Everywhere from colleges to military barracks, women are afraid to come forward after being sexually assaulted, and who can blame them? They have to go through the gauntlet of police investigation and potential public exposure of their personal lives. Which is why false accusations like this are so very wrong. They make the real victims look bad.

Oberst spent seven months trying to get Harris aka Faircloth to tell the truth. Finally he had to file a libel suit against her before she would admit that she lied. Some might say that this was just a threat made by a guilty rapist to avoid answering for his crimes. However, assuming he had a good defense attorney, he likely would have been advised not to go that route, precisely because by taking the offensive he risked being seen as a bully and manipulator, or in other words, like a rapist. That is why you are 'darned if you do and darned if you don't respond to false accusations, and why you need a lawyer to help you if you are falsely accused.

In jury selection I sometimes ask the jurors, "If I were to meet you socially, and the first thing I said was, 'Hi, I am not a child molester,' What would you think?" After squirming in their seats for a bit, they always say, "I would think you were a child molester!" I then go on to show how this is the reason someone might not be comfortable taking the witness stand to testify on their own behalf. Simply denying the lies can make you look guilty.

Thank goodness that didn't happen here. It is one of those rare examples when taking the offense worked. Normally it is all defense. Which is why criminal defense attorneys guide their clients through this minefield slowly and carefully. At every turn you risk making the lies look real, just by the way you react. It is also why our system of criminal justice is so critical. You shouldn't be convicted for holding your ground and making them prove what they cannot prove when it did not happen. This is why the presumption of innocence is so very important. In America, you are innocent until proven guilty. Knowing how to make sure that works the way it is supposed to is what lawyers try to do every day, against all the odds.

Not everyone can afford to hire a team of lawyers and file libel suits, but everyone has the right to defend themselves in court against false charges. I'm just glad for Mr. Oberst that this time it worked.

What if you are Accused of Committing a Sex Crime?

July 17, 2014,

First of all, take the Fifth.* Remain silent and get a lawyer. Second, understand this: Sex crimes are tough. Sex crimes are simultaneously the most heinous crimes to be accused of committing, the hardest crimes to disprove once you are accused, but also the easiest crimes to falsely accuse (and convict) an innocent person of committing.

This post is my follow up to my last post where I said that it does not matter whether or not you committed a crime when I represent you, with two possible exceptions: Sex crimes and crimes involving substance abuse.

There are several reasons that it matters whether you are guilty of a sex crime when you are confronting the legal system in Washington State. The two primary reasons have to do with proof and sentence options. Let me explain.

Proof.

Trust me, it can be easy to get witnesses in sex cases to contradict themselves, look like liars and generally lose their ability to convince anyone that anything ever happened. Every good criminal defense attorney knows what I am talking about. It is what happens in trial, when ordinary people find themselves in extraordinary situations. We do what we can to show that there may be missing pieces of evidence, inconsistencies, undue influence from investigators and family members who script out the witness' answers through the use of leading and suggestive questions, and much more. There is plenty to cross-examine witnesses about when they are testifying about things like rape and child molestation.

But, there is also this: Jurors are not fools. Witnesses either had something happen to them or they didn't. It's not like an eye witness to an armed robbery who picks out the only black man in the court room, a man they had never seen before or since the robbery occurred (if then). It's fathers or uncles or aunts or sisters who commit most sex crimes. ID is generally not an issue.

And, if the molestation or rape or indecent liberties or communication with a minor for immoral purposes really did indeed take place, the witness is telling the truth. And jurors know that.

But, there is another, probably better reason that it matters if you are really guilty when accused of committing a sex crime. There is help available, in most cases.

Sentence Options (SSOSA's)

In Washington state a Special Sex Offender Sentencing Alternative (SSOSA) is available for individuals charged with certain sex crimes, who are willing to admit that they are guilty and that they need help with their problem or they will be at risk to reoffend, and, above all, who are willing to commit to years of specialized intensive treatment.

It is not an easy way out. No. It requires admitting that you have a problem to begin with, followed by years of steadfast dedication to working on that problem every hour of every day, doing everything in your power to get well. But, in many cases it can be a way to avoid years of prison where you will only get worse, not better, and instead try to fix yourself.

Don't misunderstand. As noted, sex crimes are also notoriously difficult for innocent people to fight. It goes both ways. Plus, innocent people won't succeed on SSOSA's. They will fail every single test that requires you to admit that you have a problem. The only problem innocent people have is being falsely accused of a crime or crimes they did not commit. They will be deemed evasive and dishonest and in denial if they so much as hint that they are not guilty. So, if you are truly innocent you need a lawyer who gets that. And knows how to fight back.

I'll say it again. Sex crimes are tough. Many lawyers refuse to take them. I understand that. But, if not me, then who? Who is going to help someone who is vilified by society, perhaps falsely accused, and if not, in great need of help, ....if not me?

So, again, you see. It really doesn't matter to me whether you are guilty or not. If you are not, then you need to put the Government's case to the test. If you are then you need to give some thought to taking advantage of the help that is available out there. Me? I'll help you either way. It's what I do.

*Nothing in this blog is intended to be legal advice. Every case is different. If you are facing even the potential of being charged with any kind of crime, get a lawyer to help you. That is the most important thing you can do.

Both Sides Now

July 14, 2014,

Jail Cell Bars.jpgMy last post is getting some interesting feedback. Pro Pot types think it was a good discussion about the legalization of marijuana here in Washington State. Anti MJ folks see it as a wonderful condemnation of the harmful effects of drugs. Some felt my treatment of the Seattle City Attorney, Pete Holmes, was too harsh, others thought it was too kind. Everyone loved the photo of Rob Ford, looking as if he is about to explode.

The fact is my whole point in writing that was to be neutral. I did not (and do not) want to take sides on that issue. It's not my job. I'm just a lawyer. I don't take sides unless I am getting paid. Actually, that's not entirely true, as I am known to be pretty outspoken about my political opinions and personal viewpoints. In private. In public I'm available for hire. Pay me and I will argue it, up to a point. That point is always the same: I won't knowingly straight up lie about anything in the course of performing my duties as a criminal defense attorney. That means I will not knowingly say something that I know to be untrue.

I may let people get the wrong impression by saying things a certain way. I may emphasize facts that I know will lead them to reach their own conclusion, which I may know is wrong. I may make them "think things" as a prosecutor once objected in the middle of a trial, but that episode deserves its own posting. The one cardinal rule we all have to follow is that we cannot be a party to a fraud on the court. In other words, if our clients tell us that they committed a crime we cannot and will not allow them to take the witness stand and say that they didn't. That's about it. Pretty much everything else goes. This is why I have represented people charged with some pretty major crimes for months on end and never asked them whether they did the crime. I didn't want to know.

"WHAT?!?!" You may well ask. I understand. How can I possibly do my job effectively without knowing whether my client is guilty? The answer is simple. It is totally irrelevant. "WHAT WHAT?!!?", I hear you say. But, it's true. It makes zero difference to me whether or not someone is guilty of a crime when I represent them. None. What matters is what is the evidence that the Government wants to try to use against them, what issues does that evidence present, what evidence is out there that might contradict the Government's case, what exactly is my client accused of doing wrong, and, finally, what legal issues exist in terms of search and seizure, warrantless arrest, hearsay, improper charging, and on and on. In short, what tools are available to me in any given case to make sure that nobody goes to jail without first leaving no stone unturned before the right to be presumed innocent is overcome. That simple.

Well, not simple really, but that is what I get paid for. There are some cases where it really does matter whether someone is guilty or innocent, primarily in situations where they need treatment to help them stop committing those crimes in the future, such as sex crimes or crimes involving substance abuse. But, that is the subject of another post. For now, I am focusing on the simple cases, the ones where it just does not matter whether someone is guilty.

Still, I hear the skeptics. The ones who say that criminal defense attorneys are a bunch of amoral sociopaths. [This could not be further from the truth, by the way, but no matter.] The fact is that we have a system of justice in this country that is the ideal for the citizens of most of the second-class countries in the world, countries where folks get locked up for political or personal or other improper reasons. Here, if you go prison, the idea is that you only went there after the Government's case was put to the test through extensive analysis by both the prosecution and defense, research of all legal issues, close review of all factual discrepancies, and ultimately, when appropriate, by a neutral and independent jury looking at the evidence and deciding, beyond a reasonable doubt, whether the crime was committed.

And, for that to work, you have to have criminal defense attorneys who are dedicated to that system and who do not substitute their own opinion about guilt or innocence when it is supposed to be up to juries and judges to do that.

That's just how it works. If you don't like it, move to China. Or Russia. Or half the other countries in the world where you can be killed or imprisoned just because you belong to the wrong tribe. Here you gotta come through me before you can try to lock up one of my clients, whether or not they are guilty. That's the law and that's my job. And, I am proud to be the last best hope for my clients, who are up against the giant machinery the whole Government brings down on them in their attempt to lock them up and throw away the key.

Legal Marijuana in Seattle

July 10, 2014,

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I'm kind of in a state of shock.

Not because NBC News is broadcasting out of some parking lot in SODO about the one and only legal pot store in Seattle, Cannabis City, on its Opening Day. No. I'm in a state of shock because the local Fox News outlet is talking about the City Attorney for Seattle, Pete Holmes, being fourth in line when the store opened at noon Tuesday.

We've come a long way, baby.

You see, it doesn't really matter where you stand on the legalization of marijuana issue. Some say it's like D Day. To others it's more like Pearl Harbor. It matters not. The fact is that, legally speaking, this was an historic day in the history of Washington State.

I remember years ago selecting a jury on a big pot case. "Biggest Pot Bust in Island County History!!!" said the Whidbey News Times, that bastion of journalistic accuracy. [Funny part about that was it was only twelve pounds and we were simultaneously working on sixty pounds found in a tire buried in a back yard in Oak Harbor. But, who were we to say anything?]

There was a tall, elegant man seated in the front row of the jury panel, Osh Kosh overalls and all. I half expected him to be chewin' on some timothy. (Turns out he owned the best dairy farm which happened to be the best piece of undeveloped real estate on the island at the time.) The prosecutor saw a right wing conservative. I saw a farmer.

So, the prosecutor called Mr. Farmer up to explain his sacred opinion about the war on drugs to the kind people of the jury, expecting a scathing indictment of my liberal commie ways.

"Well," he said. "If ya ask me, the 'war on drugs' is just some fancy excuse for a bunch of crooked cops and crooked prosecutors to get together and pad their pockets at the expense of the rest of us law abiding citizens."

I wanted to run over and hug him.

Those of us who have represented people accused of possessing or selling or growing or smuggling marijuana over the past decades have seen first hand the impact of the drug laws when it comes to marijuana. Again-- It just does not matter where you stand on the issue. Facts are facts. Enormous amounts of time and energy and people power and, above all, money have been spent in the "Just Say No" effort. An effort that has more or less just come crashing down overnight. It makes any thinking person wonder what it was all about.

Which brings us back to City Attorney Holmes.

In a way, the most shocking thing I have seen about all of this, is the Seattle City Attorney brandishing his legal ganja in front of TV cameras. That's because that singular grandstanding moment, albeit profound in its own way, represents the biggest "radically new thing" I have seen happen with my own two eyes since the whole legalization thing happened many months ago.

Me? I was on my way speeding past that media circus, high overhead, tempting fate while careening along that death trap, the Viaduct, listening to the live radio coverage beaming up from SODO down below me, tempted to make a quick detour to at least grab a photo of history in the making. But, I was rushing between a three hour client conference at the Federal Detention Center in Seatac to an important court date downtown. (DUI dropped down to a Neg I). And besides.... What self respecting attorney would want to be caught on national TV standing outside a head shop on steroids surrounded by a bunch of dread lock rasta vagabonds, looking for all the world like just another stoner, except wearing a suit? Well, in Seattle, apparently the City Attorney does! Hope he wasn't driving.

Other than that, not much is else new around here. Seattle took its typical Scandinavian methodical responsible yet fundamentally radical and fiercely independent approach to the whole process. (Remember, they practically invented such advanced legal concepts as community property and sentencing guidelines here before virtually any other states had even thought of it.)

I mean, one pot store in the entire greater Seattle area? Seriously? In Denver they had one on every corner the day after their law passed, which incidentally is the same day we passed ours. Go figure. Buncha cowboys to our mellow tree huggers I guess. Either way, Washington is doing its best to make sure that the entire process is carefully regulated and controlled. This ain't no hemp fest Woodstock type affair. We can be proud of the way our lawmakers and law enforcement have handled every aspect of this significant change to our existing laws. Maybe that's why nothing much seems very different, other than our stoner City Attorney waving around baggies on TV. I wonder if he knows that mayor from Toronto?

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These days kids duck behind dumpsters in Ballard on Friday nights, sneaking around outside the music clubs and bars, toking up and laughing at nothing. But that could easily be ten years ago. Thirty, for that matter. Nothing's changed. The more things change the more they stay the same.

And, that's the point. The legalization of marijuana is simply a reflection of what already is. Like it or not. The change in the law, by definition, reflects what the majority of the voting public believes. That is how our country is supposed to work. At least that's what they taught us in law school.

This change is not really a change at all. It's a fix. Fixing the law to reflect the majority opinion. As it should be. And, as it is. Here in Washington.

Eat your heart out, California.

Happy Fourth of July! The Supreme Court Got It Right In Riley v. California

July 3, 2014,

Criminal Defense Attorney serving Oak Harbor, Seattle, and King, Island, Skagit, Snohomish, and Whatcom County provides a quick, unedited blurb about how the Supreme Court was correct in its June 25, 2014 opinion.

The Supreme Court recently issued its opinion in Riley v. Califorina on June 25, 2014. The court held the police generally may not conduct a warrantless search of digital information on cell phones seized incident to arrest. This is a huge victory for privacy advocates and those who oppose unfettered government intrusion into the personal lives of citizens.

The court outlined the evolution of the search incident to arrest exception to the warrant requirement. It first recognized the general rule governing the search incident to arrest exception stating "the right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime." It then discussed three major cases governing the scope of searches incident to arrest.

In 1969 in Chimel v. California the police conducted a search of an entire home following an arrest made inside the home. The court ultimately concluded this search did not fall within the search incident to arrest exception because the search was not limited to preserving evidence or protecting officers. But four years later in United States v. Robinson, the court held that a search of a crumpled up cigarette package in an arrestee's coat pocket was reasonable even though there was no concern about loss of evidence or officer safety. Then, in the 2009 case Arizona v. Gant, the court returned to the Chimel rationale concerning officer safety and evidence preservation which provides justification for searches incident to arrest. Based on this rationale Gant held that police may only search a vehicle incident to an arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search or if evidence relevant to the arrest might be found in the vehicle.

With this background the court turned to unfettered searches of cell phones incident to arrest. It recognized the fact that massive amounts of personal data are on cellular phones. Finally it recognized that in most cases a search of a cellular phone seized incident to arrest does not fit into the rubric concerning officer safety or preservation of evidence in most cases. Finally the court held that police generally may not conduct a warrantless search of digital information on cell phones seized incident to arrest. It also declined to make a distinction between smart phones and less sophisticated phones.

This is a huge victory. The Supreme Court has recognized the great expectation of privacy individuals have when it comes to data on computers. It is possible this opinion may provide insight in future cases concerning the NSA's mining of meta-data. it is also possible it may have an impact on future cases.

One writer opined the Riley opinion matters for purposes of future cases concerning the NSA spying programs: a phone is more than just a phone as opposed to the crumpled cigarette pack with heroin as in Robinson. The expectation of privacy associated with a phone may be as great as one's expectation of privacy in one's home. And the case also reveals how important it is for judge's to understand the technology when making decisions concerning search and seizure of such technology.

Overall, it is good to see that judges, at least this time, had the guts to stand up to the executive branch. That is their job. This Fourth of July we have something to celebrate--reassurance that checks exist to ensure we will be free from government intrusion and tyranny.

Happy Fourth of July from the criminal defense lawyers at Platt & Buescher.

Degrees of Culpability, Mens Rea, and Luis Suarez's Biting

June 25, 2014,

Luis Suarez is a great player. He tied the season goal scoring record for the English Premier league during the 2013-2014 season. No one doubts his skill. He is cunning and deceptive. My friends and I have nicknamed him "Sneaky Suarez." That is because he tends to sneak past defenders or sneak balls past goalkeepers. But I think the name is fitting for reasons beyond his offensive capability.

Suarez has a bit of a biting problem. First, Suarez bit Bakkal during a match between Suarez's Ajax and Paris Saint Germain. Then Suarez bit Ivanovich during a match between Suarez's Liverpool and Chelsea. Now, Suarez appears to have bitten Chiellini during a match between Suarez's Uruguay and Italy.

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Taylor Twellman recently opined that Suarez should be banned for life. But why? The maximum penalty is a 24 game suspension or two years. What justifies such a harsh penalty.

Principles concerning the degree of culpability or mens rea may provide an answer. The law recognizes mens rea or "evil thoughts." Oftentimes the degree of culpability is proportional to the level of mens rea. Therefore, punishment likewise is often proportional to the mens rea.

For example, in general the categories of mens rea are:

(1) Malice aforethought, or premeditated intent;

(2) Intent (without premeditation)

(3) Knowledge

(4) Recklessness

(5) Gross Negligence

(6) Negligence.

Malice aforethought means that the individual turned an idea over in his mind and deliberated on the acts before carrying out the evil deed. Society recognizes that such thoughts mixed with carrying out the later act are particularly evil and therefore deserve more punishment. For example, first degree murder occurs where the killing is premeditated. Second degree murder, by contrast is committed where there is simply intent that is not premeditated. Intent means to act with purpose. Manslaughter, may occur, by contrast, where recklessness causes the killing. Recklessness means the person actually recognized a substantial risk, but nonetheless deviated from the standard of care that an ordinary person would exercise. An example may be where a person standing on a high rise building in downtown Manhattan throws a potted plant down below. The person, may not have intended to kill someone, but likely recognized that Manhattan is a populous place, people are likely below, and there is a substantial risk that a potted plant would strike someone.

Referees and pundits alike take mens rea into consideration when doling out punishment. Those of us who watch the English Premier League may notice broadcasters mentioning tackles that are "malicious," "reckless," or "mistimed." The two footed, studs up, knee high tackle that wholly misses the ball will be considered malicious and may be worthy of a red card. A tackle that is fast, hard, low and studs that lacks malicious intent, but risks serious injury may be worthy of a yellow card as opposed to a red depending on the circumstances. The mistimed challenge where a player attempts to get the ball in good conscience, but misses and makes contact with the other player may simply be negligent and only worthy of a foul and perhaps a verbal warning. Ultimately, like criminal law, the world of football considers mens rea.

Back to Suarez. Biting has no place in the game. It cannot be claimed to be a mistimed challenge. It cannot even be claimed to be reckless. There is simply no reason to bite in the game. The only reason for biting is to intentionally harm someone else. Therefore, it is more worthy of punishment than a simple foul and likely more than a simple yellow.

However, I think Twellman is too harsh to consider banishment for life. Suarez did not deliberate or plan to bite. I think the biting is almost instinctual for him (since he has demonstrated it so many times before). It is perhaps a childhood habit--a violent reaction to gain a competitive edge. It is likely Suarez used biting before his professional career as a boy on the playground as a means to intimidate, frighten, frustrate, harm, and perhaps gain a step ahead of his opponents. It may be a boyhood habit perhaps that comes out in the most competitive games. This was kind of like Richard Sherman's reaction after the game against San Francisco. The guy is so pumped up, filled with adrenaline, and on edge that he overreacts and comes off as a WWE wrestler talking smack. Same thing here. Suarez appears to do these things without thinking almost like the nail biter who catches himself in the act. And Suarez caught himself in the act. He realized what he did and fell down as if he had been bumped in the mouth.

I am not making excuses for Suarez. What he appears to have done was still totally repugnant, inappropriate, and silly. I am saying that this was not something he turned over in his head and planned out. It was just done in the heat of the moment. Therefore, banishment for life is inappropriate. Especially when things like Eric Cantona's kung fu kick are considered. Cantona not only ninja kicked this fan, but also threw several punches after the fact. Cantona was banned for nine months for that stunt. And he too, like Suarez, had a history of violent acts. That was something planned. Cantona is seen pacing back and forth before the incident. He then calmly walked over and engaged in a full blown kung-fu kick for all the fans to see. Suarez on the other hand got a little carried away in the heat the of the game and went in for a minor bite.

Again, not making excuses for the guy. I am just saying that Suarez's offense was relatively minor when considered in context of these types of incidents that get attention. Banishment for life is too much. Two years is too much. NIne months is too much.

I say sort the whole think out after the World Cup. The refs have already had too much impact on this tournament. I say treat it like a red card and get on with it. Also, the game is meant to be entertaining. Suarez is entertaining in terms of his play. His shenanigans also get people talking. The guy is a one of the kind. Keep him playing.

USA vs. Portugal: The Glass Is Half Full

June 24, 2014,

Criminal defense lawyer serving Oak Harbor, Seattle, Bellingham, Mt. Vernon, and greater western Washington discusses how USA's glass is half full even after the "devastating" tie against Portugal on June 22, 2014.

Many have been talking about how the USA "blew it" against Portugal in the last seconds of injury time. However, this writer would like to offer a different perspective. We are lucky to even be in the position that we are in going into Thursday's game against Germany.

Ghana has been a historic thorn in the side for the United States. Ghana eliminated the United State's in the round of 16 in the 2010 World Cup in South Africa. Ghana then proceeded to the quarterfinals where they were barely eliminated after a controversial move made by Luis Suarez (denying Ghana a winning goal by playing phony goal keeper worthy of a red card). Ghana is also a great team with high quality players. Michael Essien is on Ghana's bench. Kevin Prince Boateng has also come off the bench for Ghana. These are legendary players. Ghana also tied #2 in the world Germany. Overall, despite their record, Ghana is an incredibly good team.

Portugal is ranked #4 in the world. Arguably the best player to ever play the game is on their team. Nani of Manchester United, Pepe of Real Madrid, Coentrao of Real Madrid, to name a few, are on this team. Portugal made it to the semi final of the last Euro cup. Portugal was eliminated only by the Spanish champions in the last world cup. This is a team that was supposed to beat the United States.

While the tie against Portugal was deflating because of the goal conceded in the last seconds, the United States should really take a glass is half full view of their position so far in group G, dubbed the group of death. No one, including their own coach perhaps, believed they would be in a position to win their group. Few also believed they would even have a realistic shot of getting to the group stages.

If the United States win against Germany, they will go through as winner of group G and will likely play Algeria (maybe Russia) in the round of 16. If the United States tie Germany they will go through as runner up of the group and will likely face off against Belgium in the round of 16. And, if the United State's lose against Germany they will still have a shot at going through, although it will be left up to chance and Portugal's performance against Ghana and goal differential.

Let's stay positive. If Costa Rica went through, if Chile could defeat the mighty Spanish side and go through as well, then the USA has plenty of room to believe. Recall the United States did well against Italy a few years back. The United States also defeated Spain in the confederations cup before South Africa. We also tied England in the last world cup. If we have proven that we can keep up with these teams and come away with a tie, then why not Germany? There is room to believe. The glass is certainly half full for the US. Let's put the past behind us and look forward to Thursday. We should be thankful we are in the position that we are. They say this is the group of death because USA is in the group. Give them death.

World Cup Opener: Bad Reffing and Fred's Flopping

June 13, 2014,

Since it is a world cup year we have decided to shift our focus from the law to something more important---Association Football (or soccer). We are going to provide discussion and analysis regarding the most exciting games during the World Cup. First up, Brazil vs. Croatia on June 12, 2014.

No one can doubt that Croatia looked strong. There team consisted of a solid line up including Modric, Corluka, Lovren, Olic, Jelavic, and others. At the outset Croatia maintained a solid shape on defense. They were very disciplined in terms of not getting stretched out by ball chasing in Brazil's half. Their entire team got back behind the ball and maintained control of their half of the field on defense--initially frustrating Brazil and preventing any penetration.

On offense, Croatia's goal was not possession per se. Their movement had purpose. Upon winning the ball, the Croatians brought a quick counter attack that sought to take advantage of Brazil's shape being stretched or or out of a defensive formation.

Croatia's tactics worked well. Brazil appeared desperate to penetrate Croatia's disciplined D. As Brazil took more and more risk in terms of movement forward they become more exposed in the back. This made Croatia's counter very effective and facilitated the first goal whereby an intelligent, well placed, and low cross with pace was played from the left wing in behind the Brazilians that Marcelo ended up tapping in due to the confusion the ball caused the Brazilians.

Croatian continued to fight hard, but in the end it was not enough. A single defensive lapse caused the ball to pop out to Neymar in the Croatian's end of the field. Neymar's left footed strike seemed to be just right. A somewhat slow moving ball slipped by the Crotian keeper's reach and struck the lower right post for a goal. Still Croatia fought hard. But in the end the referee decided to get too involved.

The ball came to Fred's feet about four feet outside the six yard box. His back was to the goal. He was not in a scoring position. The Croatian defense barely made any physical contact. Then Fred flopped like a spoiled child. The Japanese referee then fell for it. A penalty was awarded. The call essentially decided the game as the momentum, composure, and confidence of Croatia changed although they continued to play with heart. Croatia's tactics also had to change in an attempt to get another goal. As a result their defense was stretched due to their offensive desperation.

Why did the ref feel it appropriate to decide a game with a single call? Fred was not in a scoring position. His flop was obviously overly dramatic. He was hardly touched. And refs should be reluctant to make such a call without GOOD CAUSE.

Did the ref feel pressure from the home fans?

Would a Brazil tie or loss kill the party over on Copacabana beach?

Would coca-cola sales suffer? How about jersey sales?

Whatever the reason, the ref messed up. Fred's flop was poor sportsmanship at best; cheating at worst. And the call altered the outcome of the world cup. A stunned Brazil may have altered the group, Brazil's confidence, and their subsequent performance.

It is time to fine players that pull such garbage as Fred did last night. It is also time to suspend refs who fall for such tricks or otherwise demonstrate a willingness to alter the outcome of games in situations where there is soft contact and no goal scoring opportunity.

Hopefully Spain v. Netherlands will not disappoint.

The US Men's National Soccer Team Did Well Against Nigeria on June 7

June 10, 2014,

DUI Lawyer serving Seattle, Oak Harbor, Whidbey Island, Skagit, and Bellingham discusses the United States Men's National Soccer team's performance against Nigeria on June 7, 2014.

The United State's Men's National Soccer team, for the most part, looked great against Nigeria on June 7. There were a couple of defensive lapses that enabled Nigeria to create a couple of chances. Such lapses will prove fatal against Germany, Portugal, and Ghana as well. However, the US kept an impressive shape while on defense throughout the game that stopped Nigeria for the most part.

The US did okay on offense as well. In the past our attack has appeared as a desperate free for all--lacking organized and meaningful movement off the ball that those of us who follow the European leagues have become accustomed to seeing. However, against Nigeria our players made blistering overlapping runs down the flanks with purpose. DeMarcus Beasley made intelligent runs that demonstrated why he has had spells at European clubs such as Manchester City. The US's transition from defense to offense looked smooth as well. The system Jurgen Klinsmann has adopted that places Bradley at the top of a diamond midfield 4-4-2 appeared to work. Bradley was freed up to show offensive creativity with Beckerman anchored in an old school stopper like position. Bradley actually displayed intelligence, vision, and the ability to execute when his vision revealed an intelligent run. He put just the right amount of pace on a floated ball that penetrated the Nigerian defense and set up Jozy Altidore's second goal. Bradley also demonstrated a willingness to crack a shot when given the opportunity. Although I have been one of the biggest skeptics of Michael Bradley, his performance against Nigeria may have shifted the tide of opinion.

Clint Dempsey looked okay as well. Like Bradley, he demonstrated a willingness to take a crack at goal when given the opportunity. That is what the US needs. It needs to just shoot the ball on target when given the opportunity 18 to 25 yards out. Just shoot. Dempsey and others did that. Other than that it would be nice to see a little more running, a little more hustle, and a little more energy from Dempsey. He is a must in terms of the starting 11, but his energy levels appear lacking oftentimes. Leave it all on the field.

The story of the game was, of course, Jozy Altidore. Altidore had been plauged by Sunderland's poor quality in the premier league. He received a lack of chances all season mainly due to the fact his supporting cast did not create chances. Confidence is key in football. Confidence will make or break the effectiveness of a forward. Confidence can mean the difference between night and day in terms of a players' performance. Consider Fernando Torres before and after Liverpool. He could not stop scoring at Liverpool. Then something happened after he moved to Chelsea. It is true he was hurt. But after his injury it seems he was a little gun shy and has since demonstrated a total lack of confidence. He has even missed an open net on several occasions.

Altidore's tap in goal is what he needed. He needed a reminder that he can make goals happen. And this reminder could not have come at a better time. Once reminded, once his confidence levels increased, BOOM! He demonstrated first class skill and composure when scoring his second goal. His first touch and control was superb. He also did not hold onto the ball or get too fancy, but did just enough to create space to get a good lock at the net, and then he placed the ball with pace where it needed to go. It was smooth. It was Altidore's confidence--back just in time.

Minus a couple of major defensive lapses, if the team can duplicate the performance, organization, and confidence it showed on June 7, it may be possible for the US to make it out of the group stage.


Warrantless Search of Cellphone

May 13, 2014,

Criminal defense attorney serving Seattle, Whidbey Island, Oak Harbor, Coupeville, Skagit county, King County, Snohomish County, Whatcom County, and Bellingham discusses searches incident to arrest and cell phone searches.

The law evolves along with technology. For example, early strict liability law concerned non-domestic or exotic animals. An owner of a lion, bear, or other wild beast would be strictly liable for damage caused by such an animal notwithstanding the degree of care exercised by the owner. Later legal principles concerning strict liability were applied to inherently dangerous activities (i.e. blasting) and products liability. Administrative law and delegation of congressional authority eventually became acceptable as our society became more advanced and specialization was needed to address various issues. These are just a couple of examples. Privacy law should also evolve along with social norms and technology. It is time to face the reality of the expectation of privacy associated with smart phones and tablets.

Recently the United States Supreme Court considered two cases concerning whether police need warrants to conduct a search of a cellular phone incident to arrest. In one case, Riley v. California, an appellate court upheld the search of a person's smart phone after he was pulled over for expired tabs and after presumably being arrested after loaded guns were found in the car. The phone search revealed entries showing the arrestee's involvement with a gang. IN the second case, United States v. Wurie, a federal appellate court suppressed evidence obtained by police after the arrest of a suspected drug dealer.

Generally, police get a free search of a person who is subject to a valid arrest supported by probable cause. But how far can this go? Recently, in Missouri v. McNeely, the United States Supreme Court held that police must have a warrant to draw blood from one who is under arrest for DUI unless exigent circumstances exist beyond mere dissipation of alcohol in the blood. That is, regardless of the blood draw being done incident to arrest, police must generally obtain a warrant before making such a serious intrusion. The McNeely court discussed how a warrant is needed to search a home and no less could be expected when drawing blood. What about a cell phone?

Today's smart phones contain vast amounts of data and personal information--relationship status', private messages on facebook, private pictures, videos, text messages, etc. The expectation of privacy associated with the phone is unlike never before. Thus, it seems logical that the modern smart phone should be provided as much protection as the home or one's blood. Justice Kagan was correct to note that "most people now do carry their lives on cellphones." Moreover, the content of smart phones oftentimes contains data that may be protected by the first amendment. Generally, heightened particularity is needed to seize items protected by the first amendment. A search of the content of the cell phone without any more justification other than incident to arrest seems to permit a general exploratory fishing expedition inconsistent with particularity, probable cause, and the rationale underlying the search incident to arrest exception to the warrant requirement.

The search incident to arrest was generally based on the need to prevent destruction of evidence, need to remove weapons for officer safety, and the need to ensure that dangerous or harmful items do not make their way into jails. Indeed, most of the argument in the two recent cases heard by the Supreme Court concerned whether searches of phone content is necessary for officer safety. The officer safety rationale does not appear to apply to the content or data in the smart phone. The content inside the smart phone likely will not cause an immediate harm. Seizure of the phone itself (not a search through its contents) is sufficient to ensure officer safety.

Moreover, the destruction of evidence rationale does not seem to justify a search of cell phone content either. if the police can simply seize the phone itself incident to arrest why can't they later obtain a warrant? This would promote a balance between privacy rights and crime deterrence. The warrant requirement would make sure there is a nexus between the crime under investigation and the content of the phone as opposed to enabling a fishing expedition. On the other hand, if probable cause exists to believe that evidence of the crime would be found in the phone, then the officers would be able to get a search warrant. The warrant requirement might not be a "novel" approach. But it works. That is why it is in the constitution. There is no need to propose different standards as the Justice's seemed to. The major-minor crime dichotomy the Justices seemed to play around with should take a back seat to the warrant requirement.

Justice Alito asked why digital information should be treated differently from its tangible equivalent? I would ask why should the content of a modern smart phone be treated different than the content on one's computer located in his or her home? Indeed, the smart phones of today are likely more powerful and may be able to hold more data than the PC of yesterday. It is arguable a greater expectation of privacy exists.

Division One Gets It Terribly Wrong In The April 21, 2014 Opinion State v. Mecham (PART 2)

May 6, 2014,

DUI, DWI, Drunk Driving, Driving While Under the Influence attorney serving Island County, Skagit County, King County, Seattle, Oak Harbor, Anacortes, Bellingham, Whatcom, Mt. Vernon, and Burlington discusses the April 21, 2014 opinion issued by Division One.

In Part 1

DUI lawyer discussed State v. Mecham and its flawed reasoning and lack of consistency with well established law. We explained how the Mecham court (1) ignored how Terry v. Ohio permits only a limited pat down for weapons; (2) ignored how a proper article I, section 7 analysis does not concern notions of "reasonableness" unlike the Fourth Amendment; and (3) used an isolated and context free sentence from State v. Wheeler to claim that the reasonableness of the scope of a SEARCH depends on the type of crime under investigation and probable dangerousness of the suspect when that analysis is proper for purposes of the scope of a SEIZURE (a search is much different than a seizure of a person for purposes of Terry). In short, the opinion is so terribly flawed that any reasonable and intellectually honest lawyer who did not sleep through and rely on canned outlines in Criminal Procedure or who otherwise relies on headnote context free dicta will reject its reasoning immediately. But unfortunately, the opinion gets worse.

The court moved on to claim that a persons refusal to submit to sobriety tests may be used as evidence of guilt. That is ridiculous for countless reasons.

As mentioned in Part 1, people may have countless reasons to not submit to field sobriety tests. Not all persons are super athletic, coordinated, or have the greatest balance. Consider the one leg stand. Looks easy--when you have a nice officer who is being video recorded, it is light out, your failure will not result in a loss of your freedom, fines, loss of a license, etc. Also looks easy when you have done it one thousand times and know what you are being tested on (unlike those who take the test). I mean what kind of a "test" is one that you don't even have a clue what you are being tested on? Does not sound fair to me. Also, some people have bad knees (ME!), others might be sore from working out, the wind might be blowing, the ground might not be flat....on and on and on and on. The point is that a persons refusal to engage in circus tricks does not mean they are drunk or hiding something.

Beyond that, in Washington people have a common law right to refuse to submit to standardized field sobriety tests. Oftentimes the officer asks the person "are you willing to submit to voluntary field sobriety tests." They say voluntary--because that is what they are--they are not mandatory. In fact, if you ask an officer if you must do it, a candid and honest officer will tell you that you do not have an obligation to take the tests. So, people who are told that the tests are voluntary or that they have a right to refuse the tests, will end up being punished under State v. Mecham. Sounds pretty darn misleading and unfair.

Then there is the problem with admitting evidence where a person asserts there right to be free of a nonconsensual warrantless search and seizure. If a field sobriety test is indeed a warrantless search then a person should have a right to refuse. It is constitutionally suspect to punish people for saying "no" when asked to submit to a warrantless search that they are told is "voluntary."

The law is eroding. Fragile constitutional rights are being flushed down the toilet little by little, day by day by appellate courts that refuse to do their job and act as a check on government as opposed to a rubber stamp. Hopefully the Washington Supreme Court will stand up for the rights of the people as it has done so in the past if State v. Mecham makes it to them.