LEGAL UPDATE FOR WASHINGTON LAW ENFORCEMENT 2016 legal update final.pdf · LEGAL UPDATE FOR...

Legal Update - 1 October 2016

LEGAL UPDATE FOR WASHINGTON LAW ENFORCEMENT

Law Enforcement Officers: Thank you!

October 2016

TABLE OF CONTENTS FOR October 2016 LEGAL UPDATE EDITOR’S NOTE REGARDING IRREGULARITY OF MONTHLY ISSUE DATES FOR THE LEGAL UPDATE FOR WASHINGTON LAW ENFORCEMENT……………………2 NINTH CIRCUIT, UNITED STATES COURT OF APPEALS………………………………3 CIVIL RIGHTS ACT CIVIL LIABILITY: PRO-LAW ENFORCEMENT JURY VERDICT IN POLICE SHOOTING CASE OVERTURNED BECAUSE JURY HEARD TOO MUCH ABOUT GANGS AND ABOUT DRUG USE BY THE DECEASED; HOWEVER, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT DENIED IN LIGHT OF MIXED EVIDENCE ON JUSTIFICATION FOR THE SHOOTING Estate of Diaz v. City of Anaheim, 840 F.3d 592 (9th Cir., Oct. 27, 2016)………………..3

WASHINGTON STATE SUPREME COURT………………………………………………..6 “LAWFUL APPLICATION OF A POLICE DOG” UNDER STATUTORY EXEMPTION TO STRICT LIABILITY FOR DOG BITES: “LAWFUL APPLICATION” HELD TO EXIST WHERE, AT THE POINT WHEN A POLICE DOG BIT A POLICE OFFICER: (1) THE POLICE DOG WAS BEING USED BY A LAW ENFORCEMENT AGENCY TO INVESTIGATE A BURGLARY IN PROGRESS, (2) THE DOG WAS SPECIALLY TRAINED FOR LAW ENFORCEMENT WORK, AND (3) THE DOG WAS BEING USED BY A POLICE DOG HANDLER Finch v. Thurston County, 186 Wn.2d 744 (October 13, 2016)…………………………..6 FREE SPEECH, HARASSMENT LAW AND TRUE THREATS: INDIRECT THREATS MADE BY DEFENDANT DURING COUNSELING HELD TO BE “TRUE THREATS” SUFFICIENT TO SUPPORT FELONY HARASSMENT CONVICTION WHERE (1) THREATS INDUCED MORTAL FEAR IN TARGETS AND (2) DEFENDANT’S PLAN WAS DETAILED AND (3) HE DID NOT SEE HIS PLAN AS WRONG State v. Trey M., 186 Wn.2d 884 (October 27, 2016)……………………………………..10 WASHINGTON STATE COURT OF APPEALS…………………………………………..14 KNOCK AND ANNOUNCE: AT 6:47 A.M., WHERE THERE WAS NO NOISE FROM INSIDE HOME AND NO OTHER EVIDENCE INDICATING RESIDENTS WERE


AWAKE, RESIDENTS COULD BE EXPECTED TO BE ASLEEP, SO 6-SECOND TO 9-SECOND WAIT PRIOR TO FORCED ENTRY WAS NOT LONG ENOUGH State v. Ortiz, 196 Wn. App. 301 (Div. III, October 13, 2016)…………………………….14 CHAPTER 9.73 RCW, THE PRIVACY ACT: VOICEMAIL MESSAGE NOT ADMISSIBLE WHERE DEFENDANT TRIGGERED VOICEMAIL RECORDING ON HIS OWN CELL PHONE WHEN HE CALLED PHONE WHILE SEARCHING FOR IT;

COURT DECLARES THAT IT IS IRRELEVANT WHETHER OR NOT RECORDING WAS DONE INADVERTENTLY State v. Smith, 196 Wn. App. 224 (Div. II, October 4, 2016)……………. ……………..18 CHAPTER 9.73 RCW, THE PRIVACY ACT: TRIAL RECORD HELD TO CONTAIN SUBSTANTIAL EVIDENCE OF DEFENDANT’S UNLAWFUL RECORDING OF PRIVATE COMMUNICATIONS IN VIOLATION OF RCW 9.73.030, SO DEFENDANT’S CONVICTIONS UPHELD FOR INSTALLATION AND USE OF “MOBILE SPY” ON GIRLFRIEND’S PHONE State v. Novick, 196 Wn. App. 513 (Div. II, October 25, 2016)…………………………..24 VEHICLE THEFT, A CLASS B FELONY UNDER RCW 9A.56.065, HELD TO NOT APPLY TO THEFT OF A RIDING LAWN MOWER State v. Barnes, 196 Wn. App. 261 (Div. III, October 6, 2016)…………………………..28 RESEARCH SOURCE NOTE……………………………………………………………….29 PRESIDENT’S COUNCIL OF ADVISORS ON SCIENCE AND TECHNOLOGY ISSUES REPORT ON FORENSIC SCIENCE IN THE CRIMINAL COURTS…………29

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EDITOR’S NOTE REGARDING IRREGULARITY OF MONTHLY ISSUE DATES FOR THE LEGAL UPDATE FOR WASHINGTON LAW ENFORCEMENT Readers of the Legal Update for Washington Law Enforcement (Legal Update) may wonder why there was a four-month-plus gap between issuance of the September 2016 Legal Update and issuance of the October 2016 Legal Update. For reasons that I will not try to explain here, the Legal Update shadows the Attorney General’s Office “monthly” Law Enforcement Digest (LED) that is found on the Criminal Justice Training Commission’s website. This makes the issue-date of the monthly Legal Update dependent on the issue date of the monthly LED. The issue dates for the LED have been irregular over the past two years. The LED from the AGO for September 2016 was issued on October 13, 2016. The shadowing Legal Update was issued several days later. The LED for October 2016 was issued on March 2, 2017 (along with the November 2016 LED). The shadowing Legal Updates for October and November were issued on March 6, 2017. Because the November LED addressed appellate court decisions from December 2016, the December 2016 Legal Update was also issued on March 6, 2017.

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NINTH CIRCUIT, UNITED STATES COURT OF APPEALS CIVIL RIGHTS ACT CIVIL LIABILITY: PRO-LAW ENFORCEMENT JURY VERDICT IN POLICE SHOOTING CASE OVERTURNED BECAUSE JURY HEARD TOO MUCH ABOUT GANGS AND DRUG USE BY DECEASED; BUT PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT DENIED IN LIGHT OF MIXED EVIDENCE ON JUSTIFICATION FOR SHOOTING LEGAL UPDATE INTRODUCTORY EDITORIAL NOTE: The following is a three-paragraph summary of the Diaz Opinion; the summary is written by Ninth Circuit staff and is not a part of the Ninth Circuit three-judge panel’s Opinion; bracketed language was added by the Legal Update Editor:

The panel reversed the district court’s judgment, entered following a jury trial in favor of [law enforcement defendants], in an action alleging that a City of Anaheim police officer used excessive force when he shot and killed Manuel Diaz. The panel held that the district court erred by refusing to bifurcate the liability phase from the compensatory damages phase of the trial and as a result the district court admitted inflammatory evidence [testimony about defendant’s involvement with drugs and gangs, plus inflammatory expert testimony about gang behavior in general] introduced by the defendants that had no relevance to the key issue in the case, whether defendant acted within the law when he shot Diaz. The panel remanded for a new trial with guidance for the district court to: (1) closely review under Federal Rule of Evidence 401 and 403 [relevance rules] evidence of Diaz’s drug and gang affiliation and admit the evidence only to the degree that it was connected to the reaction of Diaz’s mother to his death; (2) not permit expert testimony about gangs to be admitted if plaintiffs are willing to stipulate that Diaz was a gang member; (3) sufficiently consider that a limiting instruction may not sufficiently mitigate the prejudicial impact of certain evidence; and (4) when striking testimony, to clearly identify what testimony was improperly given, and instruct the jury that it may not be considered. The panel affirmed the district court’s denial of plaintiffs’ motion for judgment as a matter of law on the excessive force claim, holding that this question was one for the jury. The panel noted that while plaintiffs presented substantial evidence that the force was unreasonable, defendants [law enforcement] also presented substantial evidence to support their position.

Estate of Diaz v. City of Anaheim, 840 F.3d 592 (9th Cir., October 27, 2016)

Facts in Diaz: (Excerpted from Ninth Circuit three-judge panel’s opinion) While on routine patrol in gang territory the afternoon of July 21, 2012, Officers Bennallack and Heitmann drove their unmarked black Crown Victoria into an alley off of Anna Drive in Anaheim, California. They were not responding to a call or plea for help, though Bennallack had arrested a man for gun possession there two weeks prior.


In the alley, Bennallack saw Diaz and another man standing near a parked vehicle, with a third man inside. Bennallack neither recognized Diaz nor saw anything in his hands. But, Bennallack thought that criminal activity was afoot, and that Diaz was a gang member, based on his experience in the area and how Diaz was dressed. Shortly after the officers drove into the alley, and before they said anything to Diaz, Diaz ran away. The officers pursued on foot. Officer Heitmann said he saw Diaz clutching an object near his waist before he took off, but Bennallack—the shooter—did not. While initially hoping to have a consensual conversation with Diaz, once the chase began Bennallack intended to arrest him for the misdemeanor offense of resisting, obstructing, or delaying a police officer. As the officers chased Diaz, they could not see his hands. Based on how Diaz’s arms were not “pumping” as expected and the outward position of his elbows, Bennallack claimed, he thought Diaz’s hands were in his waistband. Another witness did not see Diaz put his hands at his waistband. Both officers said that Diaz looked back at them while he was running away, which they took as his attempt to “acquire a target.” The officers yelled commands such as “stop,” “get on the ground,” and “show me your hands,” but Diaz kept running, and eventually went through a gate and into a courtyard. Bennallack was roughly five to ten feet behind Diaz during the chase. Bennallack testified that at one point, Diaz possibly could have exited through a gate to the street, but did not. [Court’s footnote: Bennallack did not recall whether that gate was open, closed, or ajar.] The officers took this as an escalation of danger, fearing that Diaz was hoping to lure them into an enclosed space to shoot them. Diaz then slowed down. Witnesses disagreed about his movements at this point. Bennallack said Diaz turned to his left, while Heitmann said he turned to his right. One witness did not see him turn or make any threatening movements, while another saw Diaz turn in a non-threatening manner when the police told him to get on the ground. As Diaz started to turn, Bennallack claimed to see a black cloth object going over a fence close to Diaz . Bennallack said that he believed Diaz had a gun in a “low-ready” position in front of his body, ready to fire. According to Bennallack, as Diaz turned and Bennallack saw the object in the air, he fired twice. When Bennallack shot Diaz, he could not see any part of his arms or hands. The shots occurred within one to two seconds after Diaz started to slow down; Bennallack made no lethal force warning. The first bullet entered Diaz’s right buttock and was lodged in his left thigh. The second bullet entered the right side of Diaz’s head, just above and behind his right ear, and exited the left side of his head near his left ear. Diaz was handcuffed and searched. He died shortly thereafter at a nearby hospital. Officers found a black cell phone and narcotics pipe nearby. No firearm was recovered from the scene.

Proceedings in Diaz: A Federal District Court jury found that officers did not use excessive force in shooting Mr. Diaz. ISSUE AND RULING: Under the evidence presented at trial, are plaintiffs entitled to summary judgment against law enforcement on grounds that the use of deadly force was unreasonable as a matter law? (ANSWER BY NINTH CIRCUIT PANEL: No, there is evidence to support that


the shooting was justified under the Fourth Amendment, as well as evidence to support that the shooting was not justified, so the jury must make the determination of justification) LEGAL UPDATE EDITORIAL NOTE REGARDING EVIDENTIARY ISSUE: This Legal Update entry does not excerpt or discuss the Ninth Circuit panel’s description of the facts and issues relating to admissibility of evidence regarding gang membership and drugs. Result: Reversal of U.S. District Court (Central District of California) judgment on jury verdict; case remanded for retrial. ANALYSIS IN DIAZ: Under the leading precedent of Graham v. Connor, 490 U.S. 386, 397 (1989), to determine whether law enforcement use of force is excessive, courts ask if officers’ actions were objectively reasonable in light of the facts and circumstances confronting the officers. The determination is made without regard to intent or motivation of the officers. Courts determine whether challenged state actions are objectively reasonable by balancing (1) the nature and quality of the intrusion on the individual’s Fourth Amendment interests against (2) the countervailing governmental interests at stake. Under the test of Graham v. Connor and subsequent decisions applying Graham v. Connor, courts focus on the objective evidence of the need, or lack thereof, for the level of force used. Courts first consider the nature and quality of the alleged intrusion, and then balance that against the governmental interests at stake by looking at, among other things, the key factors of (1) how severe the crime at issue is, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight. The Ninth Circuit panel assesses the evidence as follows under the Fourth Amendment balancing test (excerpts below are taken from the panel’s Opinion):

When each of the Graham factors is analyzed, the record does not “permit[] only one reasonable conclusion [on the issue of Fourth Amendment justification] . . . .” i. Severity of Crime or Other Circumstances to Which Officers Were Responding It is undisputed that the only crime Diaz had committed, if any, was a misdemeanor [the misdemeanor offense of resisting, obstructing, or delaying a police officer by evading the officer who was trying to identify him and talk to him], and that Officer Bennallack had no information that a crime was reported in the area. However, Bennallack was aware of an ongoing criminal investigation in the area involving the sale and possession of firearms by the East Side Anaheim Gang, and believed Diaz to be a gang member [LEGAL UPDATE EDITOR’S COMMENT: These facts do not add up to reasonable suspicion for a Terry stop, so this part of the Opinion’s analysis appears to be flawed, at least when viewed under case law in the State of Washington.] ii. Immediate Threat To Officer Safety While Officer Bennallack testified that he never saw Diaz’s hands, or a weapon on his person, certain indicia could have led a reasonable officer to believe Diaz


was armed. For example, Bennallack observed that rather than pumping his arms as he ran, Diaz was “reaching towards his waistband” and appeared to be manipulating an object with his hands. Bennallack also testified that Diaz looked back at the officers multiple times, as if to acquire a target. Finally, instead of running through a gate that led to the street, Diaz led the officers into a fenced-in area, and Bennallack observed Diaz begin to slow down, assume a “low-ready” position, and turn towards him. On the other hand, in addition to the fact that Bennallack never saw Diaz’s hands or a weapon on his person, other evidence weighs against an immediate threat to officer safety. For example, Diaz was shot in the back, which could refute Bennallack’s testimony that he was turning. While the jury was entitled to weigh this evidence and Bennallack’s credibility against other evidence and the credibility of witnesses who offered alternative versions of events, we must view the evidence in the light most favorable to Defendants [in assessing the Plaintiffs’ summary judgment motion]. Certainly “a simple statement by an officer that he fears for his safety or the safety of others is not enough.” . . . . Nevertheless, Defendants presented facts demonstrating why such fear could have been reasonable here, including observations of Diaz’s movements, flight route, the presence of gang activity in the area, and his refusal to comply with the officers’ orders. . . . Even if Bennallack’s subjective fear is discounted, much of his testimony focused on observations during the encounter and how he interpreted the situation based on his training, which the jury could reasonably credit. iii. Attempting To Evade Arrest by Flight It is undisputed that Diaz was running from the officers and did not obey their commands to stop, put his hands up, or get on the ground. That Diaz was slowing down at the time of the shooting does not compel the conclusion that he was complying with the officers’ orders, nor does it prove that he was preparing to shoot the officers. These are both reasonable interpretations of the evidence. The jury was entitled to choose between them based on their weighing of the evidence and the witnesses’ credibility.

[Some citations omitted, others revised for style; bracketed language added]

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WASHINGTON STATE SUPREME COURT

“LAWFUL APPLICATION OF A POLICE DOG” UNDER STATUTORY EXEMPTION TO STRICT LIABILITY FOR DOG BITES: “LAWFUL APPLICATION” HELD TO EXIST WHERE, AT THE POINT WHEN A POLICE DOG BIT A POLICE OFFICER: (1) THE POLICE DOG WAS BEING USED BY A LAW ENFORCEMENT AGENCY TO INVESTIGATE A BURGLARY IN PROGRESS, (2) THE DOG WAS SPECIALLY TRAINED FOR LAW ENFORCEMENT WORK, AND (3) THE DOG WAS BEING USED BY A POLICE DOG HANDLER Finch v. Thurston County, 186 Wn.2d 744 (October 13, 2016) Facts and Proceedings below: (Excerpted from Supreme Court majority opinion)


On November 14, 2010, [a Tumwater police officer] responded to a call to investigate a possible burglary in progress at the old Olympia Brewery. After surveying the scene, [the Tumwater officer] requested a “K-9” unit to help search the brewery. [A Thurston County deputy] responded with his police dog, Rex. The officers decided that [the Tumwater officer] would assist [the deputy] and Rex search the brewery. The building was dark inside except for the officers’ flashlights. [The three] entered the building, and [the deputy] loudly announced their presence. When no one responded, [the deputy] commanded Rex to search the building. Rex, unleashed, ran ahead of the officers, tracking the scent of the suspect in and out of rooms. The officers followed Rex into a dark room where the suspect was hiding. [The deputy] called Rex back to him, saying “here, here, here.” At this point, both parties largely agree that [the Tumwater officer] saw the suspect, that [the Tumwater officer] shouted at him to show his hands, and that Rex bit [the Tumwater officer] as Rex returned to [the deputy]. [The deputy] had to physically pull Rex off of [the Tumwater officer] before taking the suspect into custody. [The Tumwater officer] drove himself to the hospital, where he underwent surgery for his injuries. [The Tumwater officer] sued Thurston County and others on June 6, 2012 for his injuries, alleging negligence, outrage, and strict liability under RCW 16.08.040. The next day, Substitute House Bill 2191, 62d Leg., Reg. Sess. (Wash. 2012) came into effect, exempting “the lawful application of a police dog” from strict liability under RCW 16.08.040. . . . On cross motions for partial summary judgment, the trial court dismissed [the] statutory strict liability claim. The trial court concluded that the bite occurred during a “lawful application of a police dog,” exempting the county from strict liability under RCW 16.08.040(2) because the police dog was used “to aid an officer in searching an area.” [The Tumwater officer] voluntarily dismissed his remaining claims for negligence and outrage. [The Tumwater officer] appealed the dismissal of his strict liability claim, arguing that Rex’s bite was not a lawful application of a police dog. The Court of Appeals affirmed and held [in an unpublished opinion] that the legislature had abolished strict liability claims for injuries resulting from lawfully used police dogs.

[Footnote omitted, record citations omitted] ISSUE AND RULING: Police dog, Rex, was being used by a law enforcement agency, was specially trained for law enforcement work, and was being used by a police dog handler when the bite occurred. Under this combination of facts, was Rex “lawfully applied” for purposes of the strict liability exemption of RCW 16.08.040(2)? (ANSWER BY SUPREME COURT: Yes, rules a 5-4 majority) Result: Affirmance of Division Two Court of Appeals decision (by unpublished opinion) that affirmed a Mason County Superior Court decision that dismissed the cause of action against Thurston County for strict liability.

ANALYSIS (Excerpted from Supreme Court majority opinion)


Because Rex was being used by a law enforcement agency, was specially trained for law enforcement work, and was under the control of a dog handler when the bite occurred, Rex was lawfully applied for purposes of the strict liability exemption. In 1941, the legislature enacted a statute, now codified as RCW 16.08.040, making a dog owner strictly liable for injuries caused by her dog. Laws of 1941, ch. 77 § 1. The statute states:

The owner of any dog which shall bite any person while such person is in or on a public place or lawfully in or on a private place including the property of the owner of such dog, shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner's knowledge of such viciousness.

RCW 16.08.040(1). In 2012, the legislature amended the statute, carving out an exemption from strict liability for police dogs. . . . Under the exemption, strict liability “does not apply to the lawful application of a police dog, as defined in RCW 4.24.410.” RCW 16.08.040(2). RCW 4.24.410 defines a police dog as “a dog used by a law enforcement agency specially trained for law enforcement work and under the control of a dog handler.” RCW 4.24.410(1)(a) . Unfortunately, neither statute defines the “lawful application of a police dog.” Both parties argue the statute’s meaning is plain on its face. . . . [The majority opinion then notes that resort to ordinary definitions in dictionaries is appropriate in this circumstance.] . . . . “Application” has a number of definitions, including “employment as a means: specific use.” . . . . “Lawful” is defined as “allowed or permitted by law,” . . . We find these definitions illuminating. Together, they define “lawful application” of a police dog as the (1) employment or specific use of a police dog (2) as allowed by law. State regulations have defined the specific uses that police dogs may be trained to carry out. Police dogs may be trained to assist in general patrol and investigations, tracking and trailing persons, building and vehicle searches, and drug and bomb detection. See WAC 139-05-915(4). Police dogs may also be trained “solely for self-protection and assistance in hostile or potentially hostile situations.” WAC 139-05-915(4)(d). Thus, when a police dog is on duty and used for a purpose consistent with its training and certification, the police dog has been lawfully applied within the meaning of RCW 16.08.040(2) and strict liability will not apply. [The Tumwater officer] argues that there is an “application” of a police dog under RCW 15.08, 040(2) only when the handler orders the dog to bite someone. This


reading, however, does not take into account the myriad of situations police dogs are trained for, including training to bite in certain circumstances without a direct order. For example, police dogs are trained in “master protection” – to protect their handlers in the event that the handler is attacked, or injured – and will bite the assailant without a command to do so. . . . But under [the Tumwater officer’s] interpretation, municipalities would be strictly liable for any dog bite made without a command. Neither the plain language nor the legislative history of the exemption supports this narrow interpretation. We decline to adopt it. In this case, the trained police dog, Rex, was on duty and was dispatched to the scene to be used for a specific purpose: to perform a building search for a suspect. At this point, Rex had been lawfully applied for this particular situation. Although Rex bit someone who was not a “suspect” while he was lawfully applied, the county is not strictly liable for those injuries. As the Court of Appeals correctly stated below [in its unpublished opinion], “[t]he fact that [the Tumwater officer] was mistakenly bitten by Rex does not convert a lawful use of Rex to an unlawful use.” State action does not become unlawful merely because it was predicated on a mistake. . . . Accordingly, we hold that the use of Rex was a lawful application of a police dog and that under RCW 16.08.040(2), Thurston County is exempt from strict liability for the injuries to [the Tumwater officer]. Our decision is bolstered by a recent decision of a federal [district] court concluding the exception applied when the police dog and police handler “me[]t the requirements to be classified as a ‘police dog’ and ‘dog handler,’ respectively.” Germain v. City of Seattle, 2016 WL 3017704, at *5 (W.D. Wash. May 25, 2016) [LEGAL UPDATE EDITORIAL NOTE: Germain is a decision of the United States District Court for Western Washington.] [The Tumwater officer] suggests that exempting municipalities from strict liability in instances such as this one would eliminate a remedy for “innocent” dog bite victims. We find this argument unpersuasive. While RCW 16.08.040(2) carves out an exemption from a strict liability statute, the exemption does not mean the police department or municipality is immune from suit in every instance a police dog bites someone. The unavailability of a strict liability claim does not preclude plaintiffs from pursuing other causes of actions against municipalities, such as negligence, civil rights violations, or assault, along with or in lieu of a strict liability claim, . . . . "[A] negligence cause of action arises where there is ineffective control of an animal in a situation where it would reasonably be expected that injury could occur, and injury does proximately result from the negligence." Additionally, there could be situations where municipalities were negligent in adequately training or certifying a police dog for use in the field. Thus, a remedy may be available for plaintiffs for their injuries even if strict liability is not available.

[Footnotes omitted; some case citations omitted; bolding added] LEGAL UPDATE EDITORIAL NOTE REGARDING THE LAW ENFORCMENT DIGEST ENTRY ADDRESSING THIS DECISION: The Finch decision is addressed in the October 2016 LED at page 2.


FREE SPEECH, HARASSMENT LAW AND “TRUE THREATS”: INDIRECT THREATS MADE BY DEFENDANT DURING COUNSELING HELD TO BE “TRUE THREATS” SUFFICIENT TO SUPPORT FELONY HARASSMENT CONVICTION WHERE (1) THREATS INDUCED MORTAL FEAR IN TARGETS AND (2) DEFENDANT’S PLAN WAS DETAILED AND (3) HE DID NOT SEE HIS PLAN AS WRONG State v. Trey M., 186 Wn.2d 884 (October 27, 2016) Facts and Proceedings below: (Excerpted from Court of Appeals opinion)

Trey was a high school student at Naches Valley High School at the time of the incident that led to his arrest. At that time, Trey was in counseling with Mark Heeringa, addressing issues stemming from Trey’s early childhood history of abuse and neglect. Trey had been in counseling since he was five years old, and had received regularly scheduled counseling from Heeringa for the past two years. During a counseling session on October 7, 2014, Trey was upset because three boys had teased him at school. Trey told Heeringa that he thought about taking a gun to school and shooting the boys. He also said he wanted to kill them and for them to know the pain that he felt. He described a specific plan to shoot the three boys and then himself. First, he would get a gun from his grandfather’s gun safe and shoot one boy at the boy’s house before school. He would then go to the school and shoot the other two boys and end by shooting himself. He told his counselor that if he couldn’t get access to firearms, he would use bombs against the boys. Heeringa noticed a change in Trey's mood and demeanor as he made these statements. Specifically, Heeringa testified that Trey was angry, gesturing, short in his speech, and raising his voice at the time. Heeringa asked Trey, “[D]oesn't this seem wrong?” Trey replied, “Who can say?” Heeringa took the threats seriously and contacted law enforcement. At trial, Heeringa testified that this was not the first time Trey had threatened to kill someone, explaining that Trey had previously talked about killing others, including Trey’s grandfather. Trey had also previously talked about committing suicide and had described various ways he would kill himself. [A law enforcement officer] met with Trey and asked him to explain what he said and what he would do. [The officer] described his conversation with Trey as follows:

He told me that he had talked to his counselor and told his counselor that he had thought about and was thinking about killing other students at the Naches [high] school. And so I asked him how he would go about doing that. He indicated to me that he would either find the key to the gun cabinet or he would use an ax and break the door open to the gun cabinet. It’s not a gun cabinet, but it’s a closet where the guns are kept locked up. He would then take the 9 millimeter pistol of his grandpa’s, and he would go to his friend’s house who lives in the near area and kill him first. He would then ride the bus into ., . Naches [high school]


like normal. He would then wait at school until the other students were at lunch or everyone was in the cafeteria because that’s when . . . there would be the gathering of the individuals he wanted to shoot, at which point he said that he would shoot them and then he would shoot himself.

[The officer] testified that Trey said all of this methodically and without emotion. Trey explained to [the officer] that he would use a 9 mm pistol because he could conceal it. Trey also confessed to making 15 or 16 small bombs. [A second law enforcement officer] contacted the principal of Naches Valley High School, Richard Rouleau. Principal Rouleau confirmed a report that Trey was being harassed or bullied at school. Trey had also recently been suspended from school and was upset over the suspension. The State charged Trey with three counts of felony harassment in violation of RCW 9A.46.020(1)(a)(i), (b), (2)(b). Victim E.D. testified at trial, stating that when he learned of Trey’s “hit list,” he was really scared at first. He testified that he was scared that his life could have been taken. He felt relieved after he learned that Trey was in custody. At the time of trial, he testified that he was still a little scared but “relieved that [Trey]’s in custody.” Another victim, W, B., testified that after learning he was on Trey's “hit list,” he was scared and really shaking. He told his dad he “was threatened” and that he was scared. At trial, he testified that he was still a little scared. He also testified that he knew Trey had talked about harming himself before and had even made a noose at one point. The third victim, G, C, testified that he got a text from his friend, W.B., telling him about the “hit list.” G.C. said that he was “scared” and “freaked out” at first. G.C. was at home sick at the time. G, C. thought that if he had been at school, the plan might have been carried through. He testified that made him scared and frightened. Trey was convicted of three counts of felony harassment and appealed these convictions.

[Footnote omitted] ISSUES AND RULINGS: (1) Does sufficient evidence support the defendant’s convictions for felony harassment where the identified victims, upon learning from a third person that they had been on the defendant’s “hit list,” feared that the threat to kill would be carried out? (ANSWER BY SUPREME COURT: Yes, rules an 8-1 majority) (2) Did the defendant’s statements to his therapist constitute “true threats” in light of (a) the defendant’s demeanor when describing his plan to kill the boys, (b) the plan’s depth of detail, and (c) the defendant’s failure to acknowledge that shooting the boys would be wrong? (ANSWER BY SUPREME COURT: Yes, rules an 8-1 majority) Result: Affirmance of Yakima County Superior Court convictions of Trey M. for three counts of felony harassment.


ANALYSIS: (Excerpted from Washington Supreme Court majority opinion)

Sufficient evidence supports Trey’s convictions for felony harassment under RCW 9A.46.020

. . . . This court has explained that the harassment statute requires that the perpetrator knowingly threaten to inflict bodily injury by communicating directly or indirectly the intent to inflict bodily injury; the person threatened must find out about the threat although the perpetrator need not know nor should know that the threat will be communicated to the victim; and words or conduct of the perpetrator must place the person threatened in reasonable fear that the threat will be carried out. State v. J.M., 144 Wn.2d 472, 482 (2001). Appellant specifically contends that the evidence did not show that the victims feared that any threat to kill would be carried out, that any such fear was reasonable, or that such fear was caused by Trey's words or conduct. Here, each boy testified that when he heard that he was on Trey's “hit list,” he was “scared.” That is sufficient. As to reasonableness of the fear, appellant argues that because the news of Trey’s hit list was not available until after he was in custody, any fear that the threat would be carried out was not reasonable. But the record shows that each boy heard that he was on the hit list before finding out that Trey was in custody. Thus, the reasonableness of such fear was a question for the trier of fact in light of the total context. Finally, appellant argues that “[n]one of the three alleged victims testified that they heard [Trey’s] statements, either directly or indirectly.” But neither direct communication nor conveyance of Trey’s exact words was required. “The person to whom the threat is communicated may or may not be the victim of the threat.” [State v. J.M.] “[T]he person threatened must find out about the threat although the perpetrator need not know nor should know that the threat will be communicated to the victim.” [State v. J.M.] Drawing all reasonable inferences in the favor of the State, the evidence was sufficient.

Trey’s statements qualify as true threats under Washington’s reasonable person test Relying on State v. Kilburn, 151 Wn.2d 36, 45 n.3 (2004) Oct 04 LED:05, Trey asserts that his statements to his therapist were not true threats under Washington’s reasonable speaker standard. He argues that in Kilburn, the alleged threat – that the speaker would “bring a gun to school tomorrow and shoot everyone” – was spoken directly to a victim, but still found insufficient. Appellant argues that here, Trey’s statements were spoken to his therapist and were “more vague” as to timing than the alleged threat. But the outcome in Kilburn turned on the speaker’s demeanor. As the student spoke the alleged threat to a classmate, he was “half smiling” and “giggling” afterward. Also, the victim’s history with the speaker showed no basis or rationale for the threat. They had known each other for two years and had never had a fight or disagreement, and the speaker had "always treated [the victim] nicely." By contrast, Trey's demeanor here was not flippant. Trey’s therapist testified that he grew concerned as Trey’s demeanor changed when he talked about killing the


boys. Trey had a detailed plan, specific targets, and a history with the targets of some teasing and conflicts. Trey had been bullied at school and also had been suspended, which had upset him. [Trey] argues that a person in Trey’s position – a reasonable teenager making statements to his therapist – would not foresee that the statements would be interpreted as a serious threat. But here, Trey’s change in demeanor when describing his plan to kill the boys, the plan’s depth of detail, and Trey's failure to acknowledge that shooting the boys would be wrong all argue in favor of this being a true threat. Further, Trey repeated his plan to kill the boys to [an officer]’ who also testified regarding the plan’s depth of detail. Trey’s demeanor, and Trey’s absence of misgivings about what he was planning. [The officer] testified that he “took it as a very credible threat due to [Trey’s] detailed plan and the very matter-of-fact nature of how he explained doing it and putting his plan into action.” Trey told [the officer], “I know right and wrong, but I’m having a hard time wanting to do the wrong things.” Considering the entire context, a reasonable speaker in Trey’s place would foresee that Trey’s statements concerning his plan to kill the boys would be interpreted by a listener as a serious expression of intention to inflict bodily harm. In other words, Trey uttered a true threat under Washington’s objective (reasonable person) test. Finally, while the affirmance of Trey’s convictions is compelled for the reasons discussed herein, we acknowledge that this case demonstrates the need to explore how our criminal justice system responds to juveniles with mental health issues. Knowing what we know about adolescent brain development, we must find alternative means for managing their behavior and providing therapeutic treatment, instead of criminal prosecution. Trey M. is a juvenile in crisis, and our criminal justice system must find ways to provide serious mental health care for such persons while holding them accountable rather than simply placing them inside our revolving door criminal justice system, We reject the invitation of [Trey] and amicus [ACLU of Washington State] to abandon this court’s settled precedent, which applies an objective (reasonable person) test in determining a true threat for First Amendment purposes. [Trey] does not convince us that either [of the two U.S. Supreme Court decisions that he cites] require such a change. Under Washington’s objective (reasonable person) test, the trial court correctly determined that the statements at issue here were true threats and that sufficient evidence supports appellant’s convictions. We affirm appellant’s conviction for three counts of felony harassment under RCW 9A.46.020.

[Some citations omitted; other citations revised for style; bolding added]

DISSENTING OPINION In a dissent that is not joined by anyone, Justice Gordon McCloud agrees that the majority’s ruling is consistent with the Washington precedents. But she argues the following, as she summarizes in the concluding paragraph of her dissenting opinion:

Imposing felony criminal liability for Trey M’s disclosures – disclosures that were requested by adults in positions of authority – contradicts controlling United


States Supreme Court precedents. It undermines constitutional rights, flouts the plain language of the felony harassment statute, and risks undermining attempts to achieve the trust necessary to address juvenile mental health issues. It also opens the floodgates to prosecutions for harsh language that the speaker did not intend to be frightening in other areas, like the political context.

LEGAL UPDATE EDITORIAL NOTE REGARDING THE LAW ENFORCMENT DIGEST ENTRY ADDRESSING THIS DECISION: The Trey M. decision is addressed in the October 2016 LED at pages 3-4.

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WASHINGTON STATE COURT OF APPEALS

KNOCK AND ANNOUNCE: AT 6:47 A.M., WHERE THERE WAS NO NOISE FROM INSIDE HOME AND NO OTHER EVIDENCE INDICATING RESIDENTS WERE AWAKE, RESIDENTS COULD BE EXPECTED TO BE ASLEEP, SO 6-SECOND TO 9-SECOND WAIT PRIOR TO FORCED ENTRY WAS NOT LONG ENOUGH State v. Ortiz, 196 Wn. App. 301 (Div. III, October 13, 2016) Facts and Proceedings below: (Excerpted from Court of appeals opinion)

In late July 2011, in response to information from a fellow officer, [a law enforcement officer] viewed the backyard of 304 North Harding Avenue from the property of a cooperative neighbor. He saw two marijuana plants. [The lead officer] applied for, and was granted, a search warrant for the property. [The officer] with 11 other officers, executed the search warrant at approximately 6:47 a.m. on August 11, 2011. [The lead officer] knocked on the door three times, announced “police search warrant,” waited one to two seconds, and repeated that process twice more. Hearing nothing inside the home, the officers breached the front door and entered the home. Once inside, the officers encountered Raquel Hernandez Ortiz, the mother of defendant Jude Joseph Ortiz, Sr. and the owner of the home, the defendant's 15-year old son, J.O., another teenage male, and two small children. Ms. Ortiz and the two small children appeared to be just waking up. J.O. was coming out of the bedroom where he had been sleeping and the other teenage male was still sleeping on the couch in the living room. Although Mr. Ortiz lived at the home, he was not present. Upon searching the property, the officers found 41 marijuana plants in various stages of growth and other evidence of a grow operation. Mr. Ortiz later admitted to the lead officer] that he had taught his son how to grow marijuana and that they were growing the marijuana together. Mr. Ortiz was eventually charged with one count of manufacture of a controlled substance, one count of involving a minor in an unlawful controlled substance transaction, and several other counts not relevant on appeal.


During trial, the following exchange occurred between the prosecutor and [the lead officer]:

Q. Okay. So is it any surprise to you when you're trying to catch people unawares early in the morning when they’re dead asleep that they’re not going to be able to get up in time in those three short announcements to get up and open the door voluntarily? A. It’s not a surprise.

[Footnote omitted] At the end of trial, the jury found Mr. Ortiz guilty on both counts. ISSUE AND RULING: At 6:47 a.m. the lead officer of a team executing a search warrant at a house knocked on the door three times, announced “police search warrant,” waited one to two seconds, and repeated that process twice more. Hearing nothing inside the home and detecting nothing otherwise indicating anyone inside was awake, the officers breached the front door and entered the home. Did the officers comply with the requirements of RCW 10.31.040 and the Washington and federal constitutions for knocking and announcing to seek consensual entry before forcibly entering a home to execute a search warrant or make an arrest? (ANSWER BY COURT OF APPEALS: No, in light of the time of day and the lack of evidence that anyone inside was awake, the officers did not wait long enough) Result: Reversal of Yakima County Superior Court convictions of Jude Joseph Ortiz for one count each of manufacturing a controlled substance and unlawful involving a minor in controlled substances violations; case remanded with directions to suppress the fruits of the illegal search. Status: The decision is final; no petition for State Supreme Court review was filed. ANALYSIS: (Excerpted from Court of Appeals decision)

The knock and announce rule has both constitutional and statutory components. The Fourth Amendment to the United States Constitution requires “that a nonconsensual entry by the police 'be preceded by an announcement of identity and purpose on the part of the officers.” . . . . This is part of the “constitutional requirement that search warrants be reasonably executed.” . . . . The parallel requirement of article I, section 7 of the Washington Constitution has been codified in RCW 10.31.040. . . . RCW 10.31.040 provides: “To make an arrest in criminal actions, the officer may break open any outer or inner door, or windows of a dwelling house or other building, or any other enclosure, if, after notice of his or her office and purpose, he or she be refused admittance.” “To comply with the statute, the police must, prior to a nonconsensual entry, announce their identity, demand admittance, announce the purpose of their demand, and be explicitly or implicitly denied admittance.” . . . . “The requirement of a demand for admittance and an explicit or implicit denial of admittance have been merged into a ‘waiting period,’ often linked to whether the police officers are refused admittance.” State v. Richards, 136 Wn.2d 361, 370 (1998) Nov 98 LED:03. “Strict compliance with the rule is required unless the State can demonstrate that one of the two exceptions to the rule applies: exigent

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circumstances or futility of compliance.” . . . . “The proper remedy for an unexcused violation is suppression of the evidence obtained by the violation.” . . . The parties agree the police knocked on the door and announced “police search warrant” three times. The only disputed issue is whether the police waited long enough before they broke down the door. “Whether an officer waited a reasonable time before entering a residence is a factual determination to be made by the trial court and depends upon the circumstances of the case.” . . . The reasonableness of the waiting period is evaluated in light of the purposes of the rule, which are: “(1) reduction of potential violence to both occupants and police arising from an unannounced entry, (2) prevention of unnecessary property damage, and (3) protection of an occupant's right to privacy.” To comply with the constitutional reasonableness requirement, the waiting period ends once the rule’s purposes have been fulfilled and waiting would serve no purpose. . . . Similarly, under the statute, “the waiting period ends as soon as the police are refused admittance, but not later than when the purposes of the rule are fulfilled.” “The police need not wait for an actual refusal following their announcement; denial of admittance may be implied from the occupant's lack of response.” State v. Garcia-Hemandez, 67 Wn. App. 492, 495 (1992) Feb 93 LED:09. In this case, due to the early hour of the search, the occupants were foreseeably asleep. Six to nine seconds was not a reasonable amount of time for them to respond to the police, and thus no denial of admittance can be inferred. Even [the lead officer] admitted it would not be a surprise that sleeping occupants would be unable to respond in that amount of time. In addition, the purposes of the rule were not fulfilled due to the property damage done by battering in the door. The police did not comply with the rule. The State nonetheless cites five cases that it claims support its position that the knock and announce rule was not violated. Each case is distinguishable from the facts present here. [The next several paragraphs of the Ortiz opinion discuss the five Washington appellate court decisions cited by the State: State v. Lomax,24 Wn. App. 541 (1979); State v. Johnson, 94 Wn. App. 882 (1999); State v. Schmidt, 48 Wn. App. 639 (1987); State v. Jones, 15 Wn. App. 165 (1976); State v. Garcia-Hernandez, 67 Wn. App. 492 (1992). Most of the discussion of those cases is omitted from this Legal Update entry.] . . . . In each of these cases, the officers possessed facts that made it reasonable to assume the defendants were both present and awake. In Lomax, the television or radio was on. In Johnson, the police heard quick movement behind the door. In Schmidt, the officers heard noise, and then a hush after they knocked. In Jones, the officers actually spoke with the defendant. In Garcia-Hernandez, the fact that the door was ajar indicated to the officers that the defendant was present and awake. Where the police know the defendant is present and awake, the defendant's failure to respond is more likely an implied denial of admission. But here, the officers did not have any indication the home's occupants were present or awake.

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Moreover, unlike in the searches in Lomax and Johnson that occurred in the early evening-a time when it would be reasonable to assume occupants are not

sleeping and can respond more quickly to a knock – here the search occurred at

6:47 a.m. Given the hour of the day, the police could not reasonably infer a denial of admittance after such a short waiting period. And, whereas in Garcia-Hernandez all the purposes of the rule were upheld, here the police caused property damage by battering in the door. The cases Mr. Ortiz cites, though not from this jurisdiction, are more persuasive. In Idaho v. Ramos, 130 P.3d 1166 (2005), the police arrived at the defendant’s home at 7:30 a.m. over Independence Day weekend. The officers knocked rapidly, and shouted “Police, search warrant,” and “Policia.” The knocking took five seconds, and the police waited five more seconds and then forcibly entered the home. They found the residents asleep. The trial court found the 10-second wait was not enough time for anyone to answer the door, but upheld the search due to exigent circumstances. The Idaho Supreme Court found no exigent circumstances and reversed, agreeing with the trial court’s initial reasoning that most people would be asleep at 7:30 a.m. on a holiday weekend and 10 seconds was not enough time to allow an occupant to answer the door. Similarly, in Richardson v. Florida, 787 So.2d 906, 907 (Fla. Dist. Ct. App. 2001), the police approached the defendant’s home at 5:30 a.m. to execute a search warrant. An officer “did three sets of three loud knocks on the door while yelling ‘Bradenton Police Department, search warrant,’ pausing slightly between each set.” The police heard nothing and then battered in the door. The officers estimated that 10 seconds passed between the first knock and forcible entry. The trial court found this period of time reasonable, but the appellate court reversed, reasoning that the inhabitants were probably asleep due to the early hour of the search, and 10 seconds did not give them a reasonable amount of time to respond to the door. This case is nearly identical to these two cases. Because the police violated the knock and announce rule, and there is no legitimate strategic or tactical reason for failing to challenge the search, counsel was deficient for not moving to suppress the evidence.

[Footnote omitted; some citations omitted, others revised for style; bolding added] LEGAL UPDATE EDITOR’S RESEARCH NOTE: For A summary/outline of the law relating to knock and announce requirements under both the Washington and federal constitutions, see the following publication on the Internet LED page of the Criminal Justice Training Commission: “Confessions, Search, Seizure, and Arrest: A Guide for Police Officers,” May 2015, by Pam Loginsky, Staff Attorney, Washington Association of Prosecuting Attorneys (see pages 264-268). LEGAL UPDATE EDITORIAL NOTE REGARDING THE LAW ENFORCMENT DIGEST ENTRY ADDRESSING THIS DECISION: The Ortiz decision is addressed in the October 2016 LED at pages 5-6.

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CHAPTER 9.73 RCW, THE PRIVACY ACT: VOICEMAIL MESSAGE NOT ADMISSIBLE WHERE DEFENDANT TRIGGERED A VOICEMAIL RECORDING ON HIS OWN CELL PHONE WHEN HE CALLED THE PHONE WHILE SEARCHING FOR IT; COURT DECLARES THAT IT IS IRRELEVANT WHETHER OR NOT RECORDING WAS DONE INADVERTENTLY State v. Smith, 196 Wn. App. 224 (Div. II, October 4, 2016) Facts and Proceedings below: (Excerpted from Court of Appeals opinion)

John and Sheryl married in 2011 and lived in Vancouver with Sheryl’s daughter, Skylar Williams. On June 2, 2013, John and Sheryl were in their residence drinking. They became intoxicated and began to argue, which prompted Williams to leave the house. While Sheryl and John were alone, John began to beat and strangle Sheryl, who lost consciousness due to the strangling. Sometime during the attack, John used the residence’s landline telephone to try to locate his cell phone. Unable to do so, he was unaware that his actions activated his cell phone’s voice mail function, which started recording part of the dispute. In that recording, John is heard yelling insults at Sheryl and demands related to locating his cell phone. Sheryl responded to these statements by screaming unintelligibly or asking him to stop or leave her alone. At one point during the recording, Sheryl tells John to “[g]et away,” to which he responds, “No way. I will kill you.” Shortly after the voice mail was recorded, John left the residence. Sheryl called 911 and reported that John had beaten her. During the 911 call, Williams returned home and saw that Sheryl’s head was bloodied and swollen. [A] police officer with the Vancouver Police Department, arrived at the residence, and Sheryl was transported to the hospital. At some point after Williams arrived home, she retrieved John’s cell phone and listened to the voice mail. At the hospital, Williams played the voice mail recording for [the officer], who took the phone into possession. John was later arrested and charged with first degree attempted murder (domestic violence), second degree attempted murder (domestic violence), first degree assault (domestic violence), and second degree assault (domestic violence). Before trial, John moved to suppress the cell phone voice mail recording based on RCW 9.73.030. The trial court held a CrR 3.6 hearing, denied his motion, and entered findings of fact and conclusions of law. . . . At John's bench trial, he, Sheryl, Williams, several police officers, and expert witnesses testified. The recorded voice mail, 911 phone calls, and photographs of Sheryl’s injuries were admitted into evidence. The trial court entered findings of fact and conclusions of law, finding John guilty of second degree attempted murder and second degree assault, both with domestic violence enhancements. The trial court found that the convictions merged, so it sentenced him only on the second degree attempted murder conviction.


ISSUES AND RULINGS: (1) Did the recording capture a “[p]rivate communication transmitted by telephone, telegraph, radio, or other device” within the meaning of RCW 9.73. 090 (1) a)? (ANSWER BY COURT OF APPEALS: No, the parties to the conversation were communicating in person by telephone or other device) (2) In light of the Washington Supreme Court decision in State v. Smith, 85 Wn.2d 840 (1975), did the recording capture a “conversation” within the meaning of chapter 9.73 RCW? (ANSWER BY COURT OF APPEALS: Yes) (3) A communication is “private” for purposes of chapter 9.73 RCW (1) when parties manifest a subjective intention that it be private and (2) where that expectation is reasonable. Subjective intention of privacy can be inferred. In assessing whether an expectation of privacy is reasonable, courts examine duration and subject matter of the conversation, the location of the conversation, the presence or potential presence of third parties at the conversation, and the role of the nonconsenting party and his or her relationship to the consenting party. See State v_Kipp, 179 Wn.2d 718, 729 (2014) April 14 LED:14. Here, the conversation occurred during a domestic dispute in the privacy of a home with no one else present. Under these facts, was the recorded conversation private? (ANSWER BY COURT OF APPEALS: Yes, the conversation was private) (4) Was the conversation “recorded” for purposes of the Privacy Act? (ANSWER BY COURT OF APPEALS: Yes, and it is irrelevant whether the recording was done intentionally or inadvertently) Result: Reversal of Clark County Superior Court conviction of John Garrett Smith for second degree attempted murder; affirmance of Clark County conviction of Smith for second degree assault with a domestic violence sentencing enhancement. Status: Request for discretionary review is pending in the Washington Supreme Court. ANALYSIS: Excerpted from Court of Appeals opinion) 1. Legal Principles

Washington's privacy act, chapter 9.73 RCW, is “one of the most restrictive electronic surveillance laws ever promulgated,” significantly expanding the minimum standards of its federal counterpart and offering a greater degree of protection to Washington residents. . . . RCW 9.73.030 provides in pertinent part,

(1) Except as otherwise provided in this chapter, it shall be unlawful for any individual . . . .to intercept, or record any: (a) Private communication transmitted by telephone, telegraph, radio, or other device between two or more individuals between points within or without the state by any device electronic or otherwise designed to record and/or transmit said communication regardless how such device is powered or actuated, without first obtaining the consent of all the participants in the communication;


(b)Private conversation, by any device electronic or otherwise designed to record or transmit such conversation regardless how the device is powered or actuated without first obtaining the consent of all the persons engaged in the conversation.

“Any information obtained in violation of RCW 9.73.030 . . . shall be inadmissible in any civil or criminal case.” RCW 9.73.050. [Court’s footnote: RCW 9.73.030(2) allows the recording of certain communications or conversations with the consent of one party to the conversation, including those of an emergency nature or which convey threats of bodily harm. . . . Because neither John nor Sheryl consented to this recording, this provision does not apply to the circumstances presented.]

2. Private Communication Transmitted by Telephone or Other Device

John assigns error to conclusion 7 from the trial court's CrR 3.6 ruling, in which it ruled that RCW 9.73.030(1)(a) did not apply. In this, the trial court was correct. Unequivocally, RCW 9.73.030(1)(a) requires a “[p]rivate communication transmitted by telephone, telegraph, radio, or other device between two or more individuals.” (Emphasis added) . . . . The unchallenged findings 1 and 2 and the evidence supporting them show that the voice mail feature recorded John and Sheryl communicating in person. They were not attempting to communicate through any device that would make the voice mail recording subject to RCW 9.73.030(1)(a). Accordingly, we hold that the trial court did not err in concluding that RCW 9.73.030(1)(a) was inapplicable.

3. Private Conversation

John raises three issues related to the trial court’s conclusions . . . pertinent to RCW 9.73.030(1)(b): (1) whether the recorded voice mail's contents are a conversation; (2) if the contents are a conversation, whether it was private; and (3) if a private conversation, whether it was recorded or intercepted. For the following reasons, we hold that John recorded a private conversation in violation of RCW 9.73.030. A. Conversation

To begin with, the parties dispute whether the contents of the recorded voice mail are a conversation under RCW 9.73.030(1)(b). Because the privacy act does not define "conversation, " we may use a dictionary to discern the plain meaning of that term. . . . Webster’s Third New International Dictionary 498 (2002), defines “conversation” in pertinent part as an “oral exchange of sentiments, observations, opinions, ideas: colloquial discourse.” However, the State contends that State v. Smith, 85 Wn.2d 840 (1975) complicates this dictionary definition. In Smith, the Washington Supreme Court held that the trial court did not err in admitting a tape that had recorded the moments immediately before Nicholas Kyreacos, the victim, was killed. Kyreacos was wearing a device to record his encounter with the defendant. The recording begins with Kyreacos observing his surroundings while walking to meet


with the defendant. After Kyreacos’ statement that “[e]verything looks quite normal,” the Smith court described the pertinent contents of the tape recording in the following terms:

Then, suddenly are heard the sounds of running footsteps and shouting, the words “Hey!” and “Hold it!”, Kyreacos saying “Dave Smith,” and a sound resembling a gunshot. The running stops, and Smith tells Kyreacos to turn around. Kyreacos asks, “What’s the deal?” Smith replies, “You know what the deal is. I’ll tell you one thing baby, you have had it.”

Several more words are exchanged, not all of which are clearly intelligible, about whether Smith has “a charge.” Then Kyreacos asks, “If you wanted me, why didn’t you come to see me?” Smith replies, “I’ll tell you why.” A moment later, another shot is heard. The quality of the recording becomes “tinny.” (There was expert testimony that this shot damaged the microphone.) Then Kyreacos, screaming, repeatedly begs for his life. More shots are fired. There is a slight pause, two more shots are heard, then certain unclear sounds, then silence. After a period of nearly complete silence, a voice is heard to say, “We’ve already called the police.” Another voice says, “Hey, I think this guy’s dead, man.” Afterward, the tape records police sirens and the sounds of the officers investigating. Based on this recording, the Smith court held that

the material recorded was clearly “private conversation” within the simple meaning of that term. However, the special circumstances of the present case compel us to arrive at a different result. We are convinced that the events here involved do not comprise “private conversation” within the meaning of the statute. Gunfire, running, shouting, and Kyreacos’ screams do not constitute “conversation” within that term’s ordinary connotation of oral exchange, discourse, or discussion. We do not attempt a definitive construction of the term “private conversation” which would be applicable in all cases. We confine our holding to the bizarre facts of this case, and find that the tape does not fall within the statutory prohibition of RCW 9.73.030, and thus its admission is not prohibited by RCW 9.73.050.

. The Smith court made clear that it was confining its holding to its specific facts and that its definition of “conversation” was not applicable in all cases. Because of its sui generis [i.e., unique - - Legal Update Editor’s note] nature, Smith has little bearing on the case before us. Nevertheless, the State argues that the contents of the voice mail recording here are legally indistinguishable from and as unique as the recording in Smith. We disagree. Unlike Smith, there was a much greater oral exchange of words and sentiments between John and Sheryl. Examples within the voice mail recording include: (1) John calling Sheryl a “[f]at [b]itch” and Sheryl responding, “Stop”; (2) John asking, “Where is my phone?” and Sheryl screaming, “Look what you have done to me!”; and (3) John telling Sheryl, “I will kill you” to which Sheryl responds, “I


know.” In this final example’s complete context, the exchange particularly shows a clear dialogue between the two individuals:

John: You think you're bleeding? . . . . You’re the most fucked up person. Give me back the phone. Sheryl: Getaway. John: No way. I will kill you. Sheryl: I know. John: Did you want to kill me? Give me back my phone. Sheryl: No. Leave me alone.

These examples from the voice mail recording are unmistakably verbal exchanges falling within the definition of conversation. We agree with the State, that similar to Smith, some parts of the recorded voice mail may fall outside the definitional scope of conversation, particularly Sheryl’s unintelligible screams. Standing alone, Sheryl’s screams would not constitute a conversation. However, these screams were responsive to statements that John was making to Sheryl and were scattered throughout the entire dispute, which contained repeated verbal exchanges between the two individuals as outlined above. Within this context, Sheryl’s screams serve as an expression of sentiments responsive to John’s yelling and thus constitute part of a conversation. [Court’s footnote: We note that even if the screams themselves were not deemed to be conversation, their presence would not affect the status of the remaining verbal exchange as conversation.] For the above reasons, the contents of the recorded voice mail constituted a conversation under RCW 9.73.030(1)(b).

B. Private

Both parties dispute whether the conversation between John and Sheryl was private under RCW 9.73.030(1)(b). For the following reasons, we hold that the conversation was private. “A communication is private (1) when parties manifest a subjective intention that it be private and (2) where that expectation is reasonable.” [State v_Kipp, 179 Wn.2d 718, 729 (2014) April 14 LED:14]. In determining a subjective intention of privacy, a party does not need to explicitly state such an intention during the conversation; rather, it can be inferred from the facts and circumstances of the specific case. In ascertaining whether an expectation of privacy is reasonable, we examine the following factors: duration and subject matter of the conversation, the location of the conversation, the presence or potential presence of third parties at the conversation, and the role of the nonconsenting party and his or her relationship to the consenting party. As with subjective intent, “[t]he reasonable expectation standard calls for a case-by-case consideration of all the facts.” Because the trial court’s CrR 3.6 findings of fact are undisputed, we review de novo whether the conversation was private. Kiipp at 722-23.


Here, a domestic dispute occurred between two married persons in the privacy of their home. The dispute did not occur until Williams left, which signals a subjective intention and reasonable expectation that the conversation would be private. Of the factors set out above, the location of the conversation, the relationship between the parties, and the absence of third parties all declare the privacy of the conversation. None of the considerations in Kipp dispute its privacy. On these facts, we hold that John had a subjective intention and reasonable expectation that the conversation with Sheryl would be private.

C. Recording and Interception

Finally, related to conclusions 8, 9, 11, and 13, John contends that the trial court erred in ruling that the conversation was not recorded or intercepted.

In conclusion 11, the trial court ruled: “At the time [Williams] discovered the phone and opened it, neither of the activities prohibited by RCW 9.73.030 were taking place. [Williams] was not violating that statute when she opened the phone and listened to its contents.” In this, the trial court was correct. Williams did not record or intercept John’s conversation when she merely opened his phone and played the voice mail for the police. John himself was the one who enabled the device to record the private conversation. Williams may have accessed a device that happened to record or intercept a conversation, but John was the one who recorded the conversation. Thus, the trial court did not err in concluding that Williams did not record or intercept the conversation. In conclusion 8, the trial court ruled that “RCW 9.73.030(1)(b) applies when two people are having a private, non-electronic, conversation and a third party attempts to record or intercept that conversation.” The trial court erred in this conclusion. RCW 9.73.030(1) by its plain language imposes its restraints on “any individual” without limitation to those not participating in the conversation. A broad and literal reading of this plain text is in step with the Supreme Court’s characterization of our privacy act as requiring the consent of all parties to a private conversation. Kipp. Further, although no case has held so directly, the case law has implied that no third party is required to record a conversation, i.e., a party to a private conversation can also be the person who impermissibly records the conversation. Kipp . . . . Thus, John’s recording of this conversation can violate the privacy act, even though he was a party to it. In conclusion 9, the trial court ruled that

RCW 9.73.030(1)(b) does not apply to this case because this information was recorded by [John]'s phone inadvertently. At the time this information was recorded, nobody was trying to intercept or record what was occurring.

The trial court also erred in this conclusion. Whether John inadvertently or purposely recorded himself is beside the point; the statute requires no specific mental state for a person to improperly record a


conversation. . . . Although some cases involve a person who is both a party to a conversation and intentionally or knowingly records his or her own conversation, e.g., Kipp, 179 Wn.2d at 723, nothing in the plain language of RCW 9.73.030 imposes such a requirement. We are unwilling to risk compromising the scope of the privacy act by the doubtful implication of a mental state requirement from language saying nothing about a mental state. Therefore, the trial court erred by holding that John’s inadvertence in recording the private conversation removed his actions from the reach of the privacy act. In conclusion 13, the trial court ruled that “[n]one of the information that was gathered up until the point that [the law enforcement officer] listened to the phone recording was gathered illegally.” Because John recorded a private conversation without Sheryl's consent, the trial court erred in this conclusion. [Court’s footnote: Because we conclude that John recorded the conversation in violation of the privacy act, we need not decide whether his actions also constituted an interception of the same conversation under the act.] For these reasons, the trial court erred in conclusions 8, 9, and 13 and by admitting the voice mail recording at John's trial. 4. Prejudice Having concluded that the recorded voice mail was improperly admitted, we next turn to whether its admission was prejudicial to John's trial. Failure to suppress evidence obtained in violation of the [privacy] act is prejudicial unless, within reasonable probability, the erroneous admission of the evidence did not materially affect the outcome of the trial. . . . The trial court clearly relied on the voice mail recording in determining that John formed the intent to kill Sheryl, which was part of its basis for finding him guilty of second degree attempted murder. . . . . On the other hand, nothing in the trial court’s findings supporting the second degree assault conviction suggest that it relied on the voice mail recording. The voice mail was merely cumulative evidence supporting that conviction, considering that several witnesses testified to Sheryl’s injuries and corroborating pictures were admitted into evidence. Accordingly, we reverse and remand the second degree attempted murder conviction, but affirm the second degree assault conviction.

[Some citations omitted, others revised for style; some footnotes omitted] CHAPTER 9.73 RCW, THE PRIVACY ACT: TRIAL RECORD HELD TO CONTAIN SUBSTANTIAL EVIDENCE OF DEFENDANT’S UNLAWFUL RECORDING OF PRIVATE COMMUNICATIONS IN VIOLATION OF RCW 9.73.030, SO CONVICTIONS UPHELD FOR DEFENDANT’S INSTALLATION AND USE OF “MOBILE SPY” ON GIRLFRIEND’S PHONE

State v. Novick, 196 Wn. App.513 (Div. II, October 25, 2016)


Facts and Proceedings below: (Excerpted from Court of Appeals opinion)

David Novick and Lisa Maunu began dating in December 2013. At the beginning of their relationship, Maunu used an old mobile phone. When Maunu’s phone started to malfunction, Novick bought her a new mobile phone on March 11, 2014, and set it up for her. Unbeknownst to Maunu, Novick had installed an application called Mobile Spy on Maunu’s new phone. The application allowed a person to log onto the Mobile Spy website and monitor the phone on which the application was installed. From the Mobile Spy website, a user could access all the information stored on the monitored phone, including text messages, call logs, and e-mails. The versions of Mobile Spy used on Maunu’s phone, versions 6.5 and 6.6, also permitted a user to send commands to the phone from a “live control panel” on the website. One such command allowed a user to activate the phone’s microphone and recording feature and record audio into a file that could then be downloaded from the website. In July, the relationship between Novick and Maunu soured, and Maunu noticed that her new phone was acting strangely. The phone would light up periodically, send text messages and emails without her knowledge, and frequently “lock up.” About the same time, Maunu became concerned because Novick expressed specific knowledge about Maunu’s health conditions, medications, doctors’ appointments, and private conversations. Maunu then contacted Kaiser Permanente, where she received her health care and also where Novick worked, because she was concerned Novick was accessing her medical records at his work. A compliance investigator for Kaiser ordered a forensic review of Novick’s work computer use. The forensic review was conducted by Robert Monsour. During his investigation, Monsour reviewed the records associated with Novick’s password-protected user account. Kaiser computers keep records of every URL visited on an employee’s work computer and the date and time of each visit. [Court’s footnote: “Uniform resource locator” (URL) is a protocol for specifying the “addresses of the webpage.”] Monsour found a pattern of Novick accessing websites associated with Mobile Spy from Novick’s computer account at Kaiser. In addition to the Mobile Spy websites, Monsour found evidence that Novick had downloaded over 500 audio files from Mobile Spy, searched for GPS (global positioning system) locations, and searched for particular telephone numbers. The State charged Novick with eight counts of first degree computer trespass and eight counts of recording private communications based on Novick’s use of Mobile Spy to record Maunu’s conversations on March 30, April 4, June 5, and June 6. [Court’s footnote: On those 4 days, Novick downloaded 19 separate audio recordings from Maunu’s phone, capturing various conversations between Maunu and her neighbor, a friend, her mother, and Novick himself. ] During trial, Monsour testified about his investigation into Novick’s computer records. To understand how Mobile Spy operated, Monsour read all of the available documentation, focusing on versions 6.5 and 6.6 – the versions of


Mobile Spy available on the dates in question. [Court’s footnote: The phone Novick installed Mobile Spy on was unavailable for investigation because Maunu exchanged her malfunctioning mobile phone before discovering the spying application.] Monsour also explored an available demo feature of version 7.01 of the program. Version 7.01 of Mobile Spy removed the surround recording feature, among other slight variations. According to the user guides Monsour read, in order to begin a recording through Mobile Spy, a user had to go to a “live control panel” on their website and affirmatively send a command through the control panel to the monitored phone. Monsour described the process as similar to “pushing a record button on a tape recorder but you’re able to do it from anywhere where you can get on the internet.” In an attempt to confirm this process for beginning a recording, Monsour contacted Mobile Spy’s technical support. Monsour asked the technical support staff whether a recording had to be started manually or if there was some way to automate it so the phone would keep recording repeatedly. The technical support staff confirmed that a user had to manually start a recording every time. Novick testified on his own behalf. Novick acknowledged his extensive use of Mobile Spy, but he contended that everything on Mobile Spy – including the surround recording feature – occurred automatically at random times. The jury trial found Novick guilty of all counts as charged.

[Some footnotes omitted] ISSUE AND RULING: Is there substantial evidence in the record that defendant, in his installation and use of “Mobile Spy” on his girlfriend’s mobile phone, intentionally recorded private communications on the phone? (ANSWER BY COURT OF APPEALS: Yes) Result: Affirmance of Clark County Superior Court convictions of David Novick: (1) on eight counts under RCW 9.73.030, unlawfully recording private communications; and (2) on eight counts under former RCW 9A.52.110 (repealed and replaced at RCW 9.90.040 by Laws of 2016, chapter 164, section 14; see further editorial note below following the Analysis section of this entry) Status: A petition for discretionary Washington Supreme Court review is pending. LEGAL UPDATE EDITORIAL NOTE REGARDING OTHER ISSUES IN THE CASE: The defendant did not argue that former RCW 9A.52.110 did not apply to his conduct. He did argue that double jeopardy principles precluded convicting him of more than one course of conduct under the statutes involved; the Court of Appeals rejected that argument under analysis not addressed in this Legal Update entry. ANALYSIS: (Excerpted from Court of Appeals opinion)

. . . . Sufficient evidence supports a conviction if, when viewed in the light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime proved beyond a reasonable doubt. . . . First degree computer trespass occurs when a person intentionally gains access without authorization to a computer system or electronic database of another and


the access is made with the intent to commit another crime. Former RCW 9A.52.110 (2011), repealed by LAWS OF 2016 ch. 164, § 14. Here, the underlying crime was recording private communications. A person commits the crime of recording private communications when he intercepts or records private communications transmitted by any device designed to record and/or transmit said communications. RCW 9.73.030. Novick contends that the evidence is insufficient to prove he issued a command to begin audio recording from the live control panel because the computer records did not explicitly show Novick issued a command. To support his claim, Novick relies on his own refuted testimony that Mobile Spy automatically recorded the communications without a command to do so. Assuming without deciding that proof of manual commands is required to establish sufficient evidence, such proof existed. Monsour accounted for the absence of specific computer records showing a manual command was given by explaining that the records show only the activity that resulted in a new URL, and that commands could be sent within an internet program without creating a new URL. The forensic review of Novick’s computer activity revealed substantial circumstantial evidence that Novick sent the commands. Monsour testified that “every bit of information” confirmed that in order to activate the surround recording feature of the Mobile Spy program, a user must visit the Mobile Spy website and send a command through the program’s live control panel. And the computer records showed that Novick visited the live control panel on Mobile Spy’s website and subsequently downloaded audio files. . . . . Viewed in the light most favorable to the State, the evidence supports a finding that Novick sent commands from the live control panel to intentionally record Maunu’s private communications. Accordingly, we hold that the State presented sufficient evidence for a rational jury to conclude beyond a reasonable doubt that Novick committed the crime of recording private communications, and thus committed computer trespass.

[Some citations omitted] LEGAL UPDATE EDITORIAL NOTE REGARDING 2016 WASHINGTON CYBERCRIME ACT: Under chapter 164, Laws of 2016, the Washington Legislature overhauled Washington cybercrime laws under the “Washington Cybercrime Act.” The Act repealed the former computer trespass provisions in chapter 9A.52 RCW and included new computer trespass provisions under the RCW chapter that is now codified as chapter 9A.90 RCW. RCW 9A.90.040 defines computer trespass in the first degree. That section appears to continue to classify as first degree criminal trespass the conduct in the Novick case. As always, I urge law enforcement officers to consult their agency legal advisors and/or local prosecutors on any legal issues addressed or raised by Legal Update entries. LEGAL UPDATE EDITORIAL NOTE REGARDING THE LAW ENFORCMENT DIGEST ENTRY ADDRESSING THIS DECISION: The Novick decision is addressed in the October 2016 LED at page 6.


VEHICLE THEFT, A CLASS B FELONY UNDER RCW 9A.56.065, HELD TO NOT APPLY TO THEFT OF A RIDING LAWN MOWER In State v. Barnes, 196 Wn. App. 261 (Div. III, October 6, 2016), Division Three of the Court of Appeals upholds a trial judge’s dismissal of a charge of vehicle theft Class B felony. Although a “lawn mower” is a “motor vehicle” under the plain language of the definition contained in the criminal code that is applicable to RCW 9A.56.065, the Court of Appeals departs from the “plain language rule” of statutory construction. The Court does so because the Court concludes that the Legislature used “inept language” that is inconsistent with the “legislature's obvious objectives or policy.” Included in the analysis in the Barnes opinion is the following key discussion:

As argued by Joshua Barnes, a literal reading of RCW 46.04.320 and its definition of "motor vehicle" would lead to unintended and silly results. An iRobot Roomba, a self-propelled vacuum, would be a motor vehicle, since one could transport small property on the Roomba. A jokester could place her cat on top of the vacuum and send the iRobot Roomba down her neighborhood street. Theft of a child's remote control car that includes a doll in the driver's seat would also qualify for theft of a motor vehicle if we literally read RCW 46.04.320 and .670. Therefore, the purposes behind RCW 9A.56.065 should assist in limiting a literal meaning of the "motor vehicle" definition. The Washington Legislature's findings adopted when enacting RCW 9A.56.065 show that the legislature did not consider a riding lawnmower to be a motor vehicle for purposes of the theft statute. The legislature adopted the 2007 statute because of a rash of automobile thefts and because of the importance of a car in our mobile society. A riding lawnmower does not constitute essential family transportation. Purchase of the lawnmower is not a huge investment. We are unaware of a significant rise in the theft of riding lawnmowers. The statute’s findings interchangeably used the nouns “auto,” “automobile,” “motor vehicle,” “car,” and “vehicle,” suggesting the legislature only intended to encompass automobiles, or at least transportation designed for public roads.

Result: Affirmance of Chelan County Superior Court dismissing charges against Joshua Michael Barnes for theft of a motor vehicle in violation of RCW 9A.56.065. Status: Petition for discretionary Washington Supreme Court review is pending. LEGAL UPDATE EDITORIAL COMMENT: The Court’s ruling may not preclude prosecution for DUI for driving a riding lawn mower while under the influence of alcohol or drugs. Readers should check with their legal advisors and/or local prosecutors. LEGAL UPDATE EDITORIAL NOTE REGARDING THE LAW ENFORCMENT DIGEST ENTRY ADDRESSING THIS DECISION: The Barnes decision is addressed in the October 2016 LED at page 4.

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RESEARCH SOURCE NOTE PRESIDENT’S COUNCIL OF ADVISORS ON SCIENCE AND TECHNOLOGY (PCAST) ISSUES REPORT ON FORENSIC SCIENCE IN THE CRIMINAL COURTS In 2016, PCAST released its final 174-page report titled “Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods.” The report can be found by Googling, among other things, “Forensic Science in Criminal Courts.”

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LEGAL UPDATE FOR WASHINGTON LAW ENFORCEMENT IS ON WASPC WEBSITE Beginning with the September 2015 issue, the most recent monthly Legal Update for Washington Law Enforcement will be placed under the “LE Resources” link on the Internet Home Page of the Washington Association of Sheriffs and Police Chiefs. As new Legal Updates are issued, the current and three most recent Legal Updates will be accessible on the site. WASPC will drop the oldest each month as WASPC adds the most recent Legal Update. In May of 2011, John Wasberg retired from the Washington State Attorney General’s Office. For over 32 years immediately prior to that retirement date, as an Assistant Attorney General and a Senior Counsel, Mr. Wasberg was either editor (1978 to 2000) or co-editor (2000 to 2011) of the Criminal Justice Training Commission’s Law Enforcement Digest. From the time of his retirement from the AGO through the fall of 2014, Mr. Wasberg was a volunteer helper in the production of the LED. That arrangement ended in the late fall of 2014 due to variety of concerns, budget constraints and friendly differences regarding the approach of the LED going forward. Among other things, Mr. Wasberg prefers (1) a more expansive treatment of the core-area (e.g., arrest, search and seizure) law enforcement decisions with more cross references to other sources and past precedents and past LED treatment of these core-area cases; and (2) a broader scope of coverage in terms of the types of cases that may be of interest to law enforcement in Washington (though public disclosure decisions are unlikely to be addressed in depth in the Legal Update). For these reasons, starting with the January 2015 Legal Update, Mr. Wasberg has been presenting a monthly case law update for published decisions from Washington’s appellate courts, from the Ninth Circuit of the United States Court of Appeals, and from the United States Supreme Court. The Legal Update does not speak for any person other than Mr. Wasberg, nor does it speak for any agency. Officers are urged to discuss issues with their agencies’ legal advisors and their local prosecutors. The Legal Update is published as a research source only and does not purport to furnish legal advice. Mr. Wasberg’s email address is [email protected]. His cell phone number is (206) 434-0200. The initial monthly Legal Update was issued for January 2015. Mr. Wasberg will electronically provide back issues on request.

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INTERNET ACCESS TO COURT RULES & DECISIONS, RCWS AND WAC RULES The Washington Office of the Administrator for the Courts maintains a website with appellate court information, including recent court opinions by the Court of Appeals and State Supreme Court. The address is [http://www.courts.wa.gov/]. Decisions issued in the preceding 90 days may be accessed by entering search terms, and decisions issued in the preceding 14 days may be more


simply accessed through a separate link clearly designated. A website at [http://legalwa.org/] includes all Washington Court of Appeals opinions, as well as Washington State Supreme Court opinions. The site also includes links to the full text of the RCW, WAC, and many Washington city and county municipal codes (the site is accessible directly at the address above or via a link on the Washington Courts’ website). Washington Rules of Court (including rules for appellate courts, superior courts, and courts of limited jurisdiction) are accessible via links on the Courts’ website or by going directly to [http://www.courts.wa.gov/court_rules]. Many United States Supreme Court opinions can be accessed at [http://supct.law.cornell.edu/supct/index.html]. This website contains all U.S. Supreme Court opinions issued since 1990 and many significant opinions of the Court issued before 1990. Another website for U.S. Supreme Court opinions is the Court’s own website at [http://www.supremecourt.gov/opinions/opinions.html]. Decisions of the Ninth Circuit of the U.S. Court of Appeals since September 2000 can be accessed (by date of decision or by other search mechanism) by going to the Ninth Circuit home page at [http://www.ca9.uscourts.gov/] and clicking on “Opinions.” Opinions from other U.S. circuit courts can be accessed by substituting the circuit number for “9” in this address to go to the home pages of the other circuit courts. Federal statutes are at [http://www.law.cornell.edu/uscode/]. Access to relatively current Washington state agency administrative rules (including DOL rules in Title 308 WAC, WSP equipment rules at Title 204 WAC, and State Toxicologist rules at WAC 448-15), as well as all RCW’s, is at [http://www.leg.wa.gov/legislature]. Information about bills filed since 1991 in the Washington Legislature is at the same address. Click on “Washington State Legislature,” “bill info,” “house bill information/senate bill information,” and use bill numbers to access information. Access to the “Washington State Register” for the most recent proposed WAC amendments is at this address too. In addition, a wide range of state government information can be accessed at [http://access.wa.gov]. The internet address for the Criminal Justice Training Commission (CJTC) Law Enforcement Digest (LED) is [https://fortress.wa.gov/cjtc/www/led/ledpage.html].

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