LEGAL UPDATE FOR WASHINGTON LAW ENFORCEMENT 2018 legal update... · 2018-04-04 · Legal Update - 3...

Legal Update - 1 March 2018

LEGAL UPDATE FOR WASHINGTON LAW ENFORCEMENT

Law Enforcement Officers: Thank you!

March 2018

TABLE OF CONTENTS FOR MARCH 2018 LEGAL UPDATE

NOTE REGARDING CRIMINAL JUSTICE TRAINING COMMISSION’S “LAW ENFORCEMENT ONLINE TRAINING DIGEST”…………………………………………..2 NINTH CIRCUIT, UNITED STATES COURT OF APPEALS……………………………..3 CIVIL RIGHTS ACT CIVIL LIABILITY: CITY AND COUNTY LAW ENFORCEMENT AGENCIES ARE DENIED QUALIFIED IMMUNITY WHERE OFFICERS MADE WARRANTLESS ENTRY OF HOUSE AND TASED A DOMESTIC VIOLENCE SUSPECT WHO WAS ALONE IN THE HOUSE; VIEWING THE FACT ALLEGATIONS IN THE BEST LIGHT FOR THE PLAINTIFF, AGENCIES LOSE ON WARRANTLESS ENTRY ISSUES OF THIRD PARTY CONSENT, EMERGENCY AID, AND EXIGENT CIRCUMSTANCES; AND AGENCIES ALSO LOSE ON ISSUE OF WHETHER ANY DRIVE-STUN TASINGS WERE EXCESSIVE FORCE WHERE SUBJECT MAY HAVE BEEN ACTIVELY RESISTING ARREST BUT DID NOT POSE SAFETY THREAT Bonivert v. City of Clarkston, __ F.3d __ , 2018 WL __ (9th Cir., February 26, 2018)…3 CIVIL RIGHTS ACT CIVIL LIABILITY: POINTING A GUN AT HEAD OF FELONY ARRESTEE IS DECLARED TO BE EXCESSIVE FORCE WHERE THE ARRESTEE HAS ALREADY BEEN SEARCHED, IS CALM AND COMPLIANT, AND IS BEING GUARDED BY ANOTHER ARMED OFFICER; BUT QUALIFIED IMMUNITY IS GRANTED BECAUSE THE CASE LAW HAD NOT PREVIOUSLY CLEARLY ESTABLISHED THIS RULE (BEWARE: CASE LAW MAY NOW BE ESTABLISHED) Thompson v. Copeland, ___ F.3d ___ , 2018 WL ___ (9th Cir., March 14, 2018)…….13 WASHINGTON STATE SUPREME COURT……………………………………………….15 THIRD PARTY CONSENT TO SEARCH: SUPREME COURT HOLDS UNDER SPECIAL CIRCUMSTANCES OF PUNCHED-OUT IGNITION AND DRIVER-WITH-NO-KEY THAT CONSENT TO SEARCH BY CAR’S ABSENT OWNER OVERRIDES REFUSAL TO CONSENT BY ON-SCENE BORROWER-DRIVER, BUT COURT SETS GENERAL STANDARD THAT WOULD IN MOST SITUATIONS NOT ALLOW ABSENT OWNER TO OVERRIDE BORROWER’S REFUSAL OF CONSENT State v. Vanhollebeke, ___ Wn.2d ___ , 2018 WL ___ (March 15, 2018)………………15


SEARCH OF PROBATIONER’S PROPERTY BY CCO: ARTICLE I, SECTION 7 OF WASHINGTON CONSTITUTION INTERPRETED AS REQUIRING A NEXUS BETWEEN (1) THE SUSPECTED VIOLATION OF PROBATION AND (2) THE PROBATIONER’S PROPERTY THAT IS SEARCHED State v. Cornwell, ___ Wn.2d ___ , 2018 WL ___ (March 15, 2018)…………………….20 EXCLUSIONARY RULE’S “INDEPENDENT SOURCE” DOCTRINE: WHERE DISTRICT COURT DID NOT HAVE AUTHORITY TO ISSUE SEARCH WARRANT FOR OUT-OF-STATE PHONE RECORDS, SUBSEQUENT ISSUANCE OF WARRANT BY SUPERIOR COURT BASED ON SAME SHOWING HELD TO MAKE ADMISSIBLE THE PHONE RECORDS THAT HAD BEEN OBTAINED UNDER THE DISTRICT COURT WARRANT State v. Betancourth, ___ Wn.2d ___ , 2018 WL ___ (March 22, 2018)………………..23 WASHINGTON STATE COURT OF APPEALS…………………………………………...24 DRIVE-BY SHOOTING STATUTES DO NOT APPLY TO CIRCUMSTANCES WHERE PERPETRATOR RAN 63 FEET FROM HIS VEHICLE AND AROUND THE CORNER OF A BUILDING BEFORE SHOOTING THE VICTIM State v. Vasquez, __ Wn. App. 2d __ , 2018 WL __ (Div. III, March 1, 2018)…………24 THREE HOLDINGS: (1) NO VIOLATION OF SIXTH AMENDMENT CONFRONTATION RIGHT IN VICTIM’S TREATMENT-FOCUSED STATEMENTS TO MEDICAL PERSONNEL; (2) CONFRONTATION CLAUSE BARS ADMISSION OF SEPARATE STATEMENTS TO LAW ENFORCEMENT OFFICERS, BUT JUDGE’S ERROR RULED HARMLESS; (3) EVIDENCE IS SUFFICIENT TO CONVICT DEFENDANT OF UNLAWFUL IMPRISONMENT WHERE THERE WAS NO EVIDENCE OF EASY MEANS OF ESCAPE FOR VICTIM State v. Scanlan, ___ Wn. App. 2d ___ , 2018 WL ___ (Div. I, March 12, 2018)………24 LOCAL MARIJUANA ORDINANCES: CLARK COUNTY ORDINANCE BANNING RETAIL SALE OF MARIJUANA IN UNINCORPORATED AREAS UPHELD AGAINST STATE CONSTITUTIONAL AND STATUTORY ATTACKS Emerald Enterprises, LLC v. Clark County, ___ Wn. App. 2d ___ , 2018 WL ___ (Div. II, March 13, 2018)………………………………………………………………………………..27 BRIEF NOTES REGARDING MARCH 2018 UNPUBLISHED WASHINGTON COURT OF APPEALS OPINIONS ON SELECT CATEGORIES OF LAW ENFORCEMENT ISSUES…………………………………………………………………………………………28 NEXT MONTH…………………………………………………………………………………31

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NOTE REGARDING CRIMINAL JUSTICE TRAINING COMMISSION’S “LAW ENFORCEMENT ONLINE TRAINING DIGEST”


Readers of this Legal Update are probably aware of the new Law Enforcement Digest Online Training, which was introduced to the Criminal Justice Training Commission’s Law Enforcement Digest page with a December 2017 edition. The CJTC has explained that this refreshed edition of the LED continues the transition to an online training resource created with the Washington law enforcement officer in mind. Select court rulings from the previous month are summarized briefly, arranged by topic, with emphasis placed on the practical application of legal changes to law enforcement practices. Each cited case includes a hyperlinked title for those who wish to read the court’s full opinion. Links are also provided to additional Washington State prosecutor and law enforcement case law reviews and references (including this Legal Update).

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NINTH CIRCUIT, UNITED STATES COURT OF APPEALS

CIVIL RIGHTS ACT CIVIL LIABILITY: CITY AND COUNTY LAW ENFORCEMENT AGENCIES ARE DENIED QUALIFIED IMMUNITY WHERE OFFICERS MADE WARRANTLESS ENTRY OF HOUSE AND TASED A DOMESTIC VIOLENCE SUSPECT WHO WAS ALONE IN THE HOUSE; VIEWING THE FACT ALLEGATIONS IN THE BEST LIGHT FOR THE PLAINTIFF, AGENCIES LOSE ON WARRANTLESS ENTRY ISSUES OF THIRD PARTY CONSENT, EMERGENCY AID, AND EXIGENT CIRCUMSTANCES; AND AGENCIES ALSO LOSE ON ISSUE OF WHETHER ANY OF DRIVE-STUN TASINGS WERE EXCESSIVE FORCE WHERE THE SUBJECT MAY HAVE BEEN ACTIVELY RESISTING ARREST BUT DID NOT POSE A SAFETY THREAT PRELIMINARY LEGAL UPDATE EDITORIAL COMMENT REGARDING THE HOME-ENTRY ISSUE IN BONIVERT: It is always legally safer to apply for a search warrant in circumstances such as those present in the case digested below, i.e., domestic violence suspect (1) inside home alone, (2) apparently not a risk to anyone, including himself, and (3) apparently not likely to destroy evidence or try to escape. PRELIMINARY LEGAL UPDATE EDITORIAL COMMENT REGARDING THE USE-OF-FORCE ISSUE IN BONIVERT: Officers should be aware that In Mattos v. Agarano, 661 F.3d 433 (9th Cir. 2011), a Ninth Circuit panel held, apparently in broad manner, that it is generally an excessive use force to use a taser in drive-stun mode on a person who is “actively resisting arrest,” but who does not presently pose an “immediate threat to the safety of the officers or others.” The United States Supreme Court has not yet offered guidance on this Fourth Amendment issue regarding reasonableness of use of force. Bonivert v. City of Clarkston, ___ F.3d ___ , 2018 WL ___ (9th Cir., February 26, 2018) Facts and Proceedings below:

In the early morning hours of January 8, 2012, [Sergeant A] and [Officer B] of the City of Clarkston, Washington (the “City”) Police Department received a “physical domestic” dispatch to the home of Ryan Bonivert. The dispatcher relayed to the officers that an argument between a man and a woman had become “physical at one point,” and that the dispatcher had been “advised the male,“ Bonivert, “was inside the house being restrained by other males,” and “the female,” Bonivert’s girlfriend Jessie Ausman, was “outside in a car with a child.”


When [Officer B] and [Sergeant A] arrived, they encountered five people standing in front of Bonivert’s house: Ausman [the girlfriend/housemate]; Ausman’s sister, Tasha; Ausman’s mother, Ann McCann; James Gray; and Brad Miller. [Officer B] spoke to the three women, who reported that the entire group, including Bonivert, had been at a social gathering in the house. Bonivert and Ausman, who had a nine-month old daughter and had been living together in Bonivert’s home for the past two years, began arguing about their relationship when Ausman announced that she was leaving with the baby. Bonivert reportedly became angry. According to the women, Bonivert grabbed Ausman and threw her to the ground. Ausman further told the officers that all of the adults in the residence had been drinking that evening. [Sergeant A], meanwhile, interviewed Gray and Miller. Both men told [Sergeant A] that in the middle of an argument, Ausman had told Bonivert that she was leaving with the baby. According to Gray and Miller, Bonivert warned Ausman she was not leaving with the child and attempted to “rush[]” her, but Miller tackled Bonivert before he could make contact, enabling Ausman to safely exit the house with the baby. The only difference in Gray and Miller’s version of events and that of the women was that neither saw “anything physical” occur between Bonivert and Ausman. Bonivert later stated that after Ausman and his guests had departed, he decided to go to bed. Bonivert remained inside the house during the entirety of the officers’ conversations with the witnesses. The officers exchanged narratives and, after discussing the discrepancies between the men and women’s stories, decided to speak to Bonivert. The officers initially approached the front door of the residence, knocked, identified themselves as police, and instructed Bonivert to come to the door. [Sergeant A] testified that he believed – but was uncertain whether – Bonivert heard the initial knock-and-announce. Bonivert testified that he heard yelling and loud banging on the front door, but did not know who was there or what was being said. Receiving no response from Bonivert, [Sergeant A] knocked on other doors and windows of the house, peering into the windows using his flashlight. The officers found that both the front door and the back door were locked. As [Sergeant A] approached the side door, Bonivert realized it was unlocked and locked the deadbolt from inside. [Sergeant A], upon hearing the door lock, believed that Bonivert did not want to speak or have any contact with him. After Bonivert locked the side door, he heard someone outside announce that they were police and ask him to come outside. [Officer B] testified that at some point, [Sergeant A] yelled loudly, “Come out or we are coming in,“ or words to that effect. Bonivert, however, made no attempt to speak to the officers. The officers went back to the front of the house to question the witnesses again. In response to an inquiry whether Bonivert was a danger to himself, Ausman [the girlfriend] informed [Sergeant A] that there were no weapons in the home. Ausman also told police that she did not believe Bonivert was a danger to himself. When the officers inquired how Bonivert would respond to having his home broken into, Ausman warned [Sergeant A] that Bonivert had a problem with authority and recounted Bonivert’s angry – but not violent – behavior towards officers during a recent drunk driving arrest. At this point, [Sergeant A] decided he needed to assess Bonivert’s condition. [Sergeant A] claims he wanted to “find out what was going on, to assess [Bonivert]” and “see what his state of mind were [sic].” According to [Sergeant A], he was concerned by the fact


that Bonivert was “not talking to” the officers. Ausman, who had been living in Bonivert‘s home for approximately two years, gave [Sergeant A] permission to enter the house. The parties dispute whether Ausman also gave permission for [Sergeant A] to break a door or window to gain entry. Nothing in the record suggests, however, that Ausman intended to reenter the home or asked [Sergeant A] for his assistance to do so. [Sergeant A] and [Officer B] requested assistance from the Asotin County Sheriff’s Office (the “County”). The officers also radioed a “Code 4” message to the County, which meant that “there are no problems” with “the police and the people they are with,’ and that everyone is “safe” and nobody is “being injured.” Upon arrival, Asotin County Deputies [C] and [D] spoke with [Sergeant A], who told them that Bonivert was locked inside the residence and refused to come out after a physical encounter with his wife. [Sergeant A] requested their assistance to enter the house. The County deputies were aware that the City officers did not have a warrant to enter the home or arrest Bonivert. They did not obtain information about who owned the residence, who lived at the residence, whether there were outstanding arrests, or what basis the City officers had for entering the home. Instead, the County deputies deferred to [Sergeant A], the highest ranking City officer on the scene. The officers collectively developed a plan of entry. [Officer B] remained stationed at the front door, on the east side of the residence, while [Sergeant A] and the County deputies went around to the north side of the residence. [Sergeant A] again knocked on the side and back doors, identified himself as the police, and advised Bonivert to open the door. [Sergeant A] and [Deputy C] directed their flashlights through the windows and saw Bonivert retreat into the back of the house. On at least one occasion when a flashlight beam hit Bonivert, he ducked out of sight. [Sergeant A] then approached the back door, with [Deputy D] directly behind him and [Deputy C] standing farther back to maintain visibility of the front door. [Sergeant A] used his flashlight to shatter a window pane on the back door and reached through the opening to unlock it. At that point, Bonivert opened the door and began shouting that the officers were going to pay for the damage to his window. [Sergeant A] stated that he ordered Bonivert to stay back, calm down, and get on the ground. [Deputy D] similarly ordered Bonivert to get on the ground and show his hands. Bonivert disputed that he was given these commands and stated that there were flashlights pointed at him, which caused him to lower his hands to shield his eyes, and that he was unable to understand what the officers were saying. The parties dispute whether Bonivert advanced upon the officers, or remained at the door. The video footage from the taser is inconclusive: it appears to show Bonivert at the threshold of the door. Without warning, [Sergeant A] and [Deputy C] then deployed their tasers at Bonivert in dart mode. In response, Bonivert brushed off the darts, cursed at the officers, and attempted to close the door. Before Bonivert could completely close the door on the officers, however, [Sergeant A] shoved the door open with enough force to throw Bonivert to the other side of the room, and the officers entered the home. Once inside the house, the parties dispute whether Bonivert swung his fists and attacked [Sergeant A]. In any event, [Deputy D] tackled Bonivert to the ground while [Sergeant A]


drive-stunned Bonivert multiple times in his upper right shoulder. Eventually, all three officers held Bonivert to the ground. Bonivert can be heard in the taser video – in response to an officer’s repeated commands to “give me your hands” and “hold still” –screaming “no, “ “why, “ and “why are you in my house?, “ and sobbing. [Sergeant A] deployed his taser in drive-stun mode once more after Bonivert was handcuffed. [Sergeant A’s] taser report shows his taser was activated in drive-stun mode four times within approximately one minute. Bonivert was placed under arrest for assaulting an officer, resisting arrest, and domestic violence assault in the fourth degree. Bonivert brought claims under 42 U.S.C. § 1983 against the City, the County, [Sergeant A], [Officer B], and [Deputies C and D], alleging warrantless entry and excessive force in violation of Bonivert’s constitutional rights. The district court granted summary judgment in favor of the defendants on the basis of qualified immunity.

[Bolding added; footnote omitted] ISSUES AND RULINGS: Note that, as required when assessing whether the government is entitled to qualified immunity as a matter of law, all descriptions of the facts in the issues statements view the factual allegations in the best light for the plaintiff, Ryan Bonivert. Note also that the bottom-line issue in this case is whether law enforcement should be denied qualified immunity from the Civil Rights lawsuit, which turns on whether, viewing the facts in the best light for plaintiff, the officers failed to follow clearly established constitutional law. The Ninth Circuit panel concludes that, taking the disputed facts in the best light for the plaintiff, the law was clearly established against the actions of the government agents on all key constitutional issues in the case, and therefore that the government defendants are not entitled to qualified immunity in this case. (1) THIRD PARTY CONSENT: After Bonivert and his girlfriend argued one evening, she left the home that she shared with him, taking their child with her. Bonivert remained inside the home, alone. When police arrived in response to a report about the domestic dispute, they were told by some witnesses that Bonivert had earlier grabbed the girlfriend and thrown her to the ground. Officers obtained consent from the girlfriend to enter the house. At that point, the girlfriend was outside the home and was not trying to get back inside the home. The girlfriend gave police her consent for them to enter the home. Both by his words and his actions, however, Bonivert refused to consent to entry by the officers. Did the girlfriend’s voluntary consent give the officers authority to enter the home without a warrant? (ANSWER BY NINTH CIRCUIT COURT OF APPEALS: No, under the Fourth Amendment, the third party consent of a co-habitant does not control over another cohabitant who is present and objects at the time of the search) LEGAL UPDATE EDITORIAL COMMENT REGARDING CONSENT SEARCH EXCEPTION: Under the more restrictive limits of the Washington constitution, article I, section 7, in contrast to the Fourth Amendment, third party consent by a co-habitant is not valid even if another co-habitant does not object, so long as the other co-habitant is present at the time of the search and does not give his or her own consent. See State v. Morse, 159 Wn.2d 1 (2005) Feb 06 Law Enforcement Digest:02. (2) EMERGENCY AID EXCEPTION TO SEARCH WARRANT REQUIREMENT: When police arrived in response to a report about the domestic dispute, they were told by some witnesses that Bonivert had earlier grabbed the girlfriend and thrown her to the ground. Bonivert’s girlfriend/housemate told the law enforcement officers that Bonivert did not pose a danger to


himself. The girlfriend was apparently safe outside, and she was not trying to reenter the house. The officers had no reason to believe that anyone other than Bonivert was inside the home. An officer caught glimpses of Bonivert inside the home with no visible injuries or weapons. The officer sent a “Code 4” message to other officers that meant that “there is no immediate danger of death or significant harm.” Under these circumstances, does the emergency aid exception to the search warrant requirement support the officers’ warrantless entry of the house? (ANSWER BY NINTH CIRCUIT COURT OF APPEALS: No, because the officers did not have a reasonable basis for believing that there was an immediate need to enter to protect others or themselves from serious harm) LEGAL UPDATE EDITORIAL COMMENT REGARDING EMERGENCY AID EXCEPTION: Under the Washington constitution, article I, section 7, in contrast to the Fourth Amendment, the emergency aid exception applies only if the officers both (1) objectively (i.e., reasonably) believe there is an immediate need for such protection, and (2) subjectively (with no pretext) believe there is such a need. State v. Schultz, 170 Wn.2d 746 (2011) March 11 Law Enforcement Digest:16. The Fourth Amendment requires only objective justification. (3) EXIGENT CIRCUMSTANCES EXCEPTION TO SEARCH WARRANT REQUIREMENT: In light of the above-described facts and the fact that the officers had no reason to believe that evidence of crime or contraband was imminently at risk of destruction, does the exigent circumstances exception support the officers’ warrantless entry of the house? (ANSWER BY NINTH CIRCUIT COURT OF APPEALS: No) LEGAL UPDATE EDITORIAL COMMENT REGARDING EXIGENT CIRCUMSTANCES EXCEPTION: It is not yet fully resolved in the case law, but it is legally safest to assume that, under the Washington constitution, article I, section 7, in contrast to the Fourth Amendment, the exigent circumstances exception applies only if the officers both (1) objectively (i.e., reasonably) believe there is an immediate need for such protection, and (2) subjectively (with no pretext) believe there is such a need. The Fourth Amendment requires only objective justification. (4) INTEGRAL PARTICIPATION BY ALL FOUR OFFICERS INVOLVED: The two Asotin County deputies arrived at the scene after the two City of Clarkston law enforcement officers, and they generally deferred to the decisions made by Sergeant A. But the two County deputies did participate in the discussion of the plan of entry of the house, provided backup during the entry and entered the home with the City officers. Did the actions of the County deputies go beyond “mere presence” at the scene such that they are subject to possible liability for “integral participation” or “personal involvement” for unlawful entry? (ANSWER BY NINTH CIRCUIT COURT OF APPEALS: Yes, their alleged participation makes them subject to liability for integral participation.) (5) EXCESSIVE FORCE: Taken in the light most favorable to Bonivert, the disputed evidence reflects that Bonivert remained inside the home at all times; that [Sergeant A] threw Bonivert across the back room in forcing entry into the home; that, after the officers entered the house, Bonivert did not threaten or advance toward the officers after they entered the house; that Bonivert thus posed no immediate threat to the officers; and that [Sergeant A] tased Bonivert several times in drive-stun mode notwithstanding Bonivert’s compliance, including one final drive-stun taser application after Bonivert was in handcuffs. Taken in the best light for Bonivert, does the evidence justify the district court’s conclusion under the Fourth Amendment reasonableness test that “no reasonable jury could find the use of force within the home


excessive?” (ANSWER BY NINTH CIRCUIT COURT OF APPEALS: No, a reasonable jury could find excessive force - - note that the excessive force analysis in the panel’s opinion, quoted in its entirety below, is not crystal clear as to whether the panel is looking at alleged circumstances in addition to or slightly different from the facts that I have described in this Issue statement) Result: Reversal of summary judgment ruling for the government defendants by the District Court for the Eastern District of Washington; case remanded for trial. QUALIFIED IMMUNITY LEGAL STANDARD: An officer is entitled to qualified immunity if the officer’s actions: (1) complied with the constitutional standard, or (2) the constitutional standard applicable to the circumstances was not “clearly established” by relevant case law at the time of the officer’s actions. Thus, qualified immunity is denied only if an officer’s actions violated a standard set under clearly established constitutional case law. Qualified immunity is denied only if the officer’s actions either were plainly incompetent or were knowing violations of the then-existing constitutional case law. In other words, qualified immunity is granted unless existing appellate case law at the time of the officers’ actions placed the constitutional question clearly beyond debate in light of the factual contexts of the case law. But the law can be “clearly established” even if there is no precedent exactly on point factually. As noted, qualified immunity is denied on all issues in Bonivert. ANALYSIS: (Excerpted from Ninth Circuit panel’s opinion) 1. Consent search exception to warrant requirement does not apply under plaintiff’s view of facts and established law, so qualified immunity is denied to government defendants

Although the consent exception ordinarily permits warrantless entry where officers have obtained consent to enter from a third party who has common authority over the premises, [Georgia v. Randolph, 547 U.S. 103 (2006)] held that an occupant’s consent to a warrantless search of a residence is unreasonable as to a co-occupant who is physically present and objects to the search. Such is the situation here. . . . . Applying Randolph, we hold that the consent exception to the warrant requirement did not justify the officers’ entry into Bonivert’s home. Even though the officers secured Ausman’s consent, Bonivert was physically present inside and expressly refused to permit the officers to enter on two different occasions. As the district court recognized, Bonivert expressly refused entry when he locked the side door to his house. During the initial “knock and talk,” [Sergeant A] and [Officer B] knocked and attempted to open the front and back doors to the house, but found them to be locked. As the officers circled the house to approach the side door, Bonivert realized it was unlocked and locked it as [Sergeant A] was approaching. [Sergeant A] heard the door lock and informed [Officer B]. Bonivert also expressly refused entry when he attempted to close the back door on the officers after [Sergeant A] broke in. [Court’s footnote 6: The parties dispute whether Ausman [the girlfriend] gave the officers permission to break into the house, rather than enter it. Ausman testified that the officers “said, he’s not opening or answering any of


the doors. He said, do I have permission to enter your home? And I said, yes.” Ausman also stated that she “didn’t know that they were going to break the door.”]

Once the officers decided to enter the home by force, [Sergeant A] used his flashlight to shatter a window pane in the back door, reached through the opening, and unlocked the door. At that point, Bonivert partially opened the door and confronted the officers, which prompted the officers to fire their tasers in dart mode. All parties agree that after the darts failed to make contact, Bonivert tried to shut the door, placing it between himself and the officers, but ultimately was prevented from doing so when [Sergeant A] rushed through with such force that he threw Bonivert to the other side of the room. The City and County dispute that Bonivert’s conduct at the side and back doors constituted “express refusal” of consent within the meaning of Randolph. According to the County, “express refusal means verbal refusal.” We disagree, as this interpretation finds no support in either common sense or the case law. . . . . . . . Based on the foregoing, we hold that the officers are not entitled to qualified immunity under the consent exception to the Fourth Amendment’s warrant requirement. Simply put, a reasonable officer would have understood that no means no.

2. Emergency aid exception to warrant requirement does not apply under plaintiff’s view of facts and established law, so qualified immunity is denied to government defendants

The emergency aid exception permits law enforcement officers to “enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.” Brigham City v. Stuart, 547 U.S. 398, 403 (2006). An entry pursuant to the emergency aid exception “is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind, ‘as long as the circumstances, viewed objectively, justify [the] action.’“. . . . However, “the police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests, . . . because the emergency exception is “narrow” and “rigorously guarded.” . . . Viewing the facts in the light most favorable to Bonivert, there were simply no circumstances pointing to an actual or imminent injury inside the home. By the time the officers arrived, both Ausman [the girlfriend] and the child were safely outside, surrounded by four other adults intent on protecting them from harm. During the entire time that the officers spoke to the witnesses, circled and attempted to enter the home from various points, and called on [the County deputies] for backup, the house was silent. Ausman further assured the officers that there were no weapons in the house and that Bonivert did not pose a danger to himself. Ausman’s statements were all but confirmed by [Sergeant A] on at least two separate occasions, when [Sergeant A] peered into different windows and “observed [Bonivert] inside” with no visible injuries or weapons on his person. Most tellingly, though, [Sergeant A] and [Officer B] acknowledged that they sent a “Code 4” message to the deputies, indicating that “the police and the people they are with . . . [are] not being injured, “ before the deputies had even arrived. [Officer B] later confirmed that a “Code 4” message means that “there is no immediate danger of death or significant harm.”

http://lawriter.net/getCitState.aspx?series=U.S.&citationno=547+U.S.+398&scd=FED


The officers contend that within the unique “context of a police domestic violence response, “ Bonivert’s behavior led them to believe it was necessary to enter the home in order to prevent him from hurting “himself or others, including [the] officers.” [Sergeant A] explained that “domestic violence calls, by their nature, are volatile, emotionally charged, and unpredictable.” We agree, and we recognize the especially volatile nature of domestic disputes, where “violence may be lurking and explode with little warning.” . . . Nevertheless, we have refused to hold that “domestic abuse cases create a per se” emergency justifying warrantless entry. United States v. Brooks, 367 F.3d 1128, 1136 (9th Cir. 2004). Indeed, all of our decisions involving a police response to reports of domestic violence have required an objectively reasonable basis for believing that an actual or imminent injury was unfolding in the place to be entered. . . . [Sergeant A] offered no objectively reasonable basis to suggest that Bonivert could harm a third party, as Bonivert was alone in the residence. Nor did [Sergeant A] offer an objective reason that Bonivert was a harm to himself, other than that “[Bonivert] was . . . hiding” from officers inside the house. Any belief about Bonivert’s past volatility was belied by Ausman’s statement that Bonivert was not a danger to himself or others. [Sergeant A’s] only mention of an actual threat was in terms so general that they could apply to any interaction involving a criminal suspect in a home. [Sergeant A] stated that he did not credit Ausman’s “statement about there being no weapons in the residence” because he “always assume[s] there are weapons in a residence, including clubs and knives.” But construing such testimony as justifying entry would eviscerate the warrant requirement and support warrantless entry in response to every reported domestic dispute where the suspect remains inside the home. We refuse to extend the emergency aid exception to such an inflexible assumption, as opposed to a reasonable belief. Ultimately, the record in this case stands in stark contrast to any other case in which we have held, under the emergency aid exception, that officers responding to reports of a domestic dispute had “an objectively reasonable basis for concluding that there was an immediate need to protect others or themselves from serious harm.”. . . . The facts matter, and here, there are at least triable issues of fact as to whether “violence was imminent,” and whether warrantless entry was justified under the emergency aid exception. . . . The officers are not entitled to qualified immunity under the emergency aid exception.

3. Exigency exception to warrant requirement does not apply under plaintiff’s view of facts and established law, so qualified immunity is denied to government defendants

The exigency exception permits warrantless entry where officers “have both probable cause to believe that a crime has been or is being committed and a reasonable belief that their entry is necessary to prevent . . . the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.” Hopkins v. Bonvicino, 573 F.3d 752, 763 (9th Cir. 2009) . . . . . . .

http://lawriter.net/getCitState.aspx?series=F.3d&citationno=367+F.3d+1128&scd=FED




[T]he alleged victim of the domestic assault, Ausman, was safely outside the home before the officers even arrived. Because the officers . . . . indisputably had no “probable cause to believe that [there was] contraband or evidence of a crime [in Bonivert’s house],” the exigency doctrine did not justify their entry. We recognize that police officers responding to reports of domestic violence are “not conducting a trial, but” rather are “required to make . . . on-the-spot decision[s].” . . . . In this case, however, the facts of the situation did not entitle officers to “disregard the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic.” The officers are not entitled to qualified immunity on Bonivert’s warrantless entry claim because it was clearly established law, as of 2012, that neither consent, the emergency aid exception, nor the exigency exception justified the officers’ warrantless entry.

4. Under plaintiff’s view of facts and established law, the County deputies were “integral participants” in the warrantless entry of the home, so they are not dismissed from the lawsuit

An officer can be held liable for a constitutional violation only when there is a showing of “integral participation” or “personal involvement” in the unlawful conduct, as opposed to mere presence at the scene. . . . [W]e have recognized that officers who provide armed backup, stand at the door with a gun while other officers conduct a search inside an apartment, and participate in the search operation are integral participants.. . . The County points to no basis for its suggestion that the deputies’ knowledge of the senior officer’s investigation, rather than their own actions, dictates whether they were integral participants. Here, the deputies developed a plan of entry with [Sergeant A] and [Officer B], provided armed backup to [Sergeant A] as he broke into Bonivert’s back door, and entered the home on [Sergeant A’s] heels. Viewing the facts in the light most favorable to Bonivert, the deputies were not bystanders but integral participants in the unlawful entry and are not entitled to qualified immunity.

5. Under plaintiff’s view of facts and established law, the force used was excessive

The instance of force at issue on appeal is [Sergeant A]’ use of his taser in “drive-stun” mode inside Bonivert’s home. [Court’s footnote 10: Bonivert does not appear to argue that [Sergeant A]’ initial deployment of his taser in dart mode-which was ultimately ineffective-constituted excessive force.] In [Mattos v. Agarano, 661 F.3d 433 (9th Cir. 2011)], we recognized that use of a taser in drive-stun mode on a person who “actively resisted arrest,” but posed no “immediate threat to the safety of the officers or others,” constituted excessive force. The events of this case took place in 2012, the year after we decided Mattos. The constitutional right was clearly established for qualified immunity purposes. . . . . Whether an officer used excessive force is analyzed under an “objective reasonableness” standard, which requires balancing the “nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” [Graham v. Connor, 490 U.S. 386, 395-96 (1989)].


The district court found that Bonivert stated a claim for excessive use of force, but that governmental interests in officer safety, investigating a possible crime, and controlling an interaction with a potential domestic abuser outweighed the intrusion upon Bonivert’s rights. In reaching this conclusion, the court improperly “weigh[ed] conflicting evidence with respect to . . . disputed material fact[s].” . . . . The Supreme Court has cautioned that attempting to decide excessive force cases at summary judgment requires courts to “slosh our way through the fact-bound morass of ‘reasonableness,” with predictably messy results. See Scott v. Harris, 550 U.S. 372, 383 (2007). That is precisely what happened when the district court granted summary judgment. Once the officers broke the windowpane and unlocked the back door, a chaotic and confusing scene unfolded, generating equally confusing and chaotic evidence. To begin, based on the taser video, the district court concluded that Bonivert appeared to move beyond the threshold of the door towards the officers in a manner that caused them to reasonably view Bonivert as a threat, which in turn justified deployment of the tasers in dart mode and the officers’ forced entry into the home. The two seconds of video that depict Bonivert’s retreat are inconclusive, especially since the shaky footage comes from a taser. But the video starts with Bonivert standing at what appears to be the threshold of the door and moving backwards. The footage does not show whether prior to the start of the video, Bonivert had been advancing towards the officers, or whether Bonivert had opened the door and stood at its threshold without making further movements in the officers’ direction. Additionally, [Sergeant A] testified that at the time he deployed his taser, Bonivert was not outside his house. Bonivert said that he was standing on the threshold of the door, with “the majority of [his] body” in the house. Bonivert repeatedly denied that he advanced upon the officers at any point after he opened the door, stating: “I had just separated myself from a hostile environment [and] I was trying to avoid another one.” The district court decided that the officers’ tackling of Bonivert and the repeated use of tasers in drive-stun mode was warranted based on the following disputed facts: Bonivert attacked [Sergeant A]; Bonivert screamed at the officers and yelled profanities; and Bonivert continued to struggle and failed to obey the officers’ commands. Each of these conclusions was based on conflicting testimony, and drew upon the officers’ version of events rather than Bonivert’s testimony. In the taser video, both Bonivert and the officers can be heard yelling amidst the sound of taser deployments, and Bonivert can be heard sobbing near the end of the video. But the video does not show what happened following [Sergeant A’s] forcible entry and whether Bonivert was physically resisting arrest. Bonivert testified that after [Sergeant A] threw him to the back of the room, he stood up, but did not attempt to fight the officers. When asked if he resisted arrest, Bonivert stated that he “tried distancing [him]self” but that “the entire time being Tased for prolonged periods of time, “ he had “no muscle movements” and “[h]ardly an ability to speak.” Bonivert denies resisting arrest, while the officers deny that Bonivert posed no immediate threat to their safety. Taken in the light most favorable to Bonivert, the evidence reflects that Bonivert remained inside the home at all times; that Bonivert did not threaten or advance toward the officers; that Bonivert posed no immediate threat to the officers; that [Sergeant A] threw Bonivert across the back room; that Bonivert did not resist arrest; and that [Sergeant A] tasered Bonivert several times in drive-stun mode notwithstanding Bonivert’s compliance. The evidence does not justify the district

http://lawriter.net/getCitState.aspx?series=U.S.&citationno=550+U.S.+372&scd=FED


court’s conclusion that “no reasonable jury could find the use of force within the home excessive.” To be sure, the reasonableness inquiry in the context of excessive force balances “intrusion[s] on the individual’s Fourth Amendment interests” against the government’s interests. . . . But in weighing the evidence in favor of the officers, rather than Bonivert, the district court unfairly tipped that inquiry in the officers’ favor. . . . Thus, genuine issues of fact “prevent[] a determination of qualified immunity at summary judgment [such] that the case must proceed to trial.”

[Some citations omitted, others revised for style; some footnotes omitted; subheadings revised; bolding added] CIVIL RIGHTS ACT CIVIL LIABILITY: POINTING A GUN AT HEAD OF FELONY ARRESTEE IS DECLARED TO BE EXCESSIVE FORCE WHERE THE ARRESTEE HAS ALREADY BEEN SEARCHED, IS CALM AND COMPLIANT, AND IS BEING GUARDED BY ANOTHER ARMED OFFICER; BUT QUALIFIED IMMUNITY IS GRANTED IN THIS CASE BECAUSE THE CASE LAW HAD NOT PREVIOUSLY CLEARLY ESTABLISHED THIS RULE (NOW, HOWEVER, THE CASE LAW MAY BE DEEMED TO BE CLEARLY ESTABLISHED) In Thompson v. Copeland, ___ F.3d ___ , 2018 WL ___ (9th Cir., March 14, 2018), a three-judge Ninth Circuit panel rules 2-1 that the individual law enforcement defendant sued in the case used excessive force in pointing his gun at the head of an arrestee, but that the officer is entitled to qualified immunity because case law had not clearly established the rule for this particular factual context. The dissenting judge would not have granted qualified immunity. The Thompson ruling appears to mean that the standard set on excessive force will be deemed to be “clearly established” in future federal cases arising in the Ninth Circuit. Staff for the Ninth Circuit summarizes the Majority and Dissenting Opinions as follows (the staff summary is not part of the Court’s ruling):

By a 2-1 vote, a three-judge panel upholds the U.S. District Court’s order of summary judgment in favor of law enforcement civil defendants, on qualified immunity grounds, in a 42 U.S.C. § 1983 action. The lawsuit alleging that a police officer used excessive force when he pointed a gun at plaintiff’s head in the context of a felony arrest after plaintiff had already been searched, was calm and compliant, and was being watched over by a second armed deputy. Examining the facts in the light most favorable to plaintiff, the non-moving party on summary judgment, the panel assumed that the police officer did indeed point his gun at plaintiff’s head and threatened to kill him. The panel held that under the [assumed] circumstances, defendant’s use of force in arresting plaintiff was not objectively reasonable. The panel held that where, as in this case, officers have an unarmed felony suspect under control, where they easily could have handcuffed the suspect while he was sitting on the squad car, and where the suspect is not in close proximity to an accessible weapon, a gun to the head constitutes excessive force under the Fourth Amendment. The panel nevertheless held that although the use of excessive force violated plaintiff’s constitutional rights, defendant was entitled to qualified immunity because plaintiff’s right


not to have a gun pointed at him under the circumstances was not clearly established at the time the events took place. . . . . Dissenting, Judge Christen would hold that the police officer was not entitled to qualified immunity on plaintiff’s excessive force claim because plaintiff’s right not to have a gun pointed at his head was clearly established in Robinson v. Solano County, 278 F.3d 1007 (9th Cir. 2002) . . . , which was decided long before plaintiff’s arrest in 2011.

In part, the Ninth Circuit’s description of the key facts (with allegations viewed in the best light for the plaintiff) is as follows:

When [Officer A] ran Thompson’s identifying information [following a traffic stop], he discovered that Thompson had a suspended license for an unpaid ticket, that Thompson was a convicted felon, and that his most recent felony conviction was for possessing a firearm. [Officer A] decided to arrest Thompson for driving with a suspended license, and to impound Thompson’s car, as required by a City of Burien ordinance. [Officer A] had Thompson exit the vehicle and patted him down for weapons. Finding none, [Officer A] radioed for backup, and had Thompson sit on the bumper of [Officer A’s] patrol car. [Officer A] then conducted an inventory search of Thompson’s vehicle. During his search, [Officer A] saw a loaded revolver sitting in an open garbage bag on the rear passenger-side floorboard. After seeing the gun, [Officer A] decided to arrest Thompson for violating the Uniform Firearms Act, a felony. See Wash. Rev. Code § 9.41.040. Thompson continued to sit on the bumper of [Officer A’s] police cruiser, watched over by another deputy who had arrived for backup on the scene. Thompson was about 10-15 feet from the gun in the backseat of his car, and was not handcuffed. {Officer A] signaled to the deputy watching over Thompson, then drew his gun. What happened next is disputed by the parties. [Officer A] claims he unholstered his firearm and assumed a low-ready position, with his gun clearly displayed but not pointed directly at Thompson. By contrast, Thompson claims that [Officer A] pointed his gun at Thompson’s head, demanded Thompson surrender, and threatened to kill him if he did not. [Officer A] directed Thompson to get on the ground, facedown, so that he could be handcuffed. Thompson complied and was cuffed without incident. [Officer A] arrested Thompson for being a felon in possession of a firearm.

[Footnote omitted] Result: Reversal of decision of Western Washington U.S. District Court that granted summary judgment to the government civil defendants. LEGAL UPDATE EDITORIAL COMMENT: As noted at the outset of this entry, if similar factual allegations involving different parties are made in a future federal court lawsuit in a federal district court in the Ninth Circuit, there is a good chance that qualified immunity will be denied the law enforcement defendants based on Thompson v. Copeland.

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WASHINGTON STATE SUPREME COURT THIRD PARTY CONSENT TO SEARCH: SUPREME COURT HOLDS UNDER SPECIAL CIRCUMSTANCES OF PUNCHED-OUT IGNITION AND DRIVER-WITH-NO-KEY THAT CONSENT TO SEARCH BY CAR’S ABSENT OWNER OVERRIDES REFUSAL TO CONSENT BY ON-SCENE BORROWER-DRIVER, BUT COURT SETS GENERAL STANDARD THAT IN MOST SITUATIONS WILL NOT ALLOW ABSENT OWNER TO OVERRIDE BORROWER’S REFUSAL OF CONSENT State v. Vanhollebeke, ___ Wn.2d ___ , 2018 WL ___ (March 15, 2018) LEGAL UPDATE SUMMARY OF RULING IN A NUTSHELL: A driver of a vehicle loaned to the driver by the owner does not generally assume the risk that the third-party owner will consent to a law enforcement search. The present driver's refusal to consent to the search of the borrowed vehicle must generally be respected despite a consent to search by the owner. But where the facts reasonably raise a significant question to law enforcement about whether the driver had any legitimate claim to the vehicle at all at the time of a law enforcement contact, officers may contact the absent owner and then get that owner's consent to search even if the absent owner confirms that the owner had loaned the vehicle to the driver. Facts and Proceedings below: During a lawful investigatory seizure that followed a lawful traffic stop of Vanhollebeke, law enforcement officers learned that he had a suspended driver’s license. They developed objective suspicion that the locked pickup truck that Vanhollebeke was driving: (1) was stolen (based on a punched ignition and the fact the Vanhollebeke did not have a key and claimed to an officer that he had inadvertently locked his key inside the truck when he got out and locked the truck contrary to the officer’s order to stay in the vehicle); and (2) contained drug paraphernalia (based on a used glass pipe with white crystal residue observed on the dashboard in open view from outside the vehicle). Vanhollebeke told officers that he had borrowed the truck from its owner. An officer asked Vanhollebeke for consent to search the truck. Vanhollebeke refused consent to search. Officers were able to contact the truck’s owner in person at his home. The owner confirmed that he had loaned the truck to Vanhollebeke. The truck’s owner was concerned about an officer’s observation through a window of an apparent used drug pipe. So, the owner consented to a search of the truck and gave officers a key to unlock it. The owner declined an offer to be transported to the truck. Officers searched the truck and found a handgun under the driver’s seat, and they also retrieved from the dashboard a glass pipe with methamphetamine residue. Officers confirmed through dispatch that Vanhollebeke had a prior felony conviction and thus was barred from possessing the handgun. The State charged Mr. Vanhollebeke with first degree unlawful possession of a firearm. Mr. Vanhollebeke moved to suppress the physical evidence on the grounds that he had refused to give the officers consent to search the truck. The trial court denied his motion, and a jury convicted him of first degree unlawful possession of firearm. Division Three of the Court of Appeals affirmed the conviction.


ISSUE AND RULING: The unanimous opinion of the Supreme Court in Vanhollebeke declares that, as a general Third Party Consent rule under the State and Federal constitutions, the borrower-driver of a vehicle does not assume the risk that the absent lender-owner will consent to a search of the vehicle if the borrower-driver is present and objecting. In this case, however, while the driver had borrowed the vehicle from the owner, it initially appeared to be stolen due to the punched out ignition and the driver's lack of a key, along with the driver's claim that he had locked his key in the vehicle when he exited contrary to the officer's command to stay in the vehicle. Also, apparent drug paraphernalia was in open view on the dashboard of the vehicle. Under these circumstances, did the borrower-driver assume the risk that the police would contact the owner, and that the owner would consent to a police search of the vehicle? (ANSWER BY SUPREME COURT: Yes, under these special circumstances, the borrower assumed the risk, and the absent owner’s consent overrode the objection of the borrower) Result: Affirmance of decision of Division Three of the Court of Appeals; the Court of Appeals hadt affirmed the Adams County Superior Court conviction of Justin Dean VanHollebeke for first degree unlawful possession of a firearm. ANALYSIS: (Excerpted from Washington Supreme Court opinion)

Vanhollebeke now challenges the search of his truck under both the Fourth Amendment and article I, section 7. In this situation, we generally analyze the Washington State Constitution first. This is true for several reasons, including the fact that the Washington Constitution is more protective of individual privacy. . . . But we have previously held that third-party consent issues (like the one raised here) should be analyzed under the Fourth Amendment first. Specifically, in [State v. Mathe, 102 Wn.2d 537 (1984)] – a case addressing a landlord's consent to the search of his tenant's bedroom – this court expressly adopted the Fourth Amendment’s two-part test for “questions of [third-party] consent issues under Const, art. I, § 7.” Neither party argues that we should discard the Mathe court’s adoption of the Fourth Amendment’s common authority test as a starting point. For these reasons, we begin with the combined state and federal constitutional test for determining the validity of third-party consent to search shared property. [LEGAL UPDATE EDITORIAL NOTE: Thus, the Vanhollebeke Opinion does not adopt a more restrictive rule under the State constitution for the third party consent factual context of this case.] The Fourth Amendment standard for valid third-party consent to a search, which this court adopted in Mathe and reaffirmed in State v. Leach, 113 Wn.2d 735 (1989), is a two-part test: (1) Did the consenting party have authority to permit the search in his own right? And if so, (2) did the defendant assume the risk that the third party would permit a search? Both this court and the United States Supreme Court refer to this test as the “common authority rule.” Mathe, 102 Wn.2d at 543-44; United States v. Matlock, 415 U.S. 164, 171 n.7 (1974). . . . . There is no dispute that the first part of the test is satisfied in this case as the truck’s owner, Casteel, could clearly consent to its search “in his own right.” . . . .


We then proceed to the second part of the Mathe!Matlock test: whether Vanhollebeke, by borrowing Casteel's truck, assumed the risk that Casteel might allow others to search it. As discussed above, the trial court held a hearing on the validity of Casteel's consent. The trial court judge found that

1.2 The defendant exited the vehicle and locked it. He did not have a key and was not able to re-enter the vehicle. 1.3 The defendant did not have identification with him. 1.4 ... [Officers] learned that he was driving on a suspended license and had warrants out of Grant County. . . . 1.5 Officers ... detained him further once they observed a meth pipe and punched out ignition in the car he was driving.. . . 1.6 Unable to reach [Casteel] by phone, Deputy Barnes drove to Mr. Casteel’s home. . . . . 1.9 Defendant’s interest in the vehicle was permissive and pursuant to an oral agreement between himself and the registered owner.

Beyond a brief acknowledgement that Vanhollebeke had Casteel’s consent to use the vehicle, Vanhollebeke did not present any evidence indicating that he had exclusive use of the vehicle or that Casteel had loaned him the car for any set length of time, nor any number of other scenarios that could demonstrate more clearly defined privacy expectations or property rights. [Court’s footnote quoting from one of defendant’s appellate briefs: “[I]t is entirely unknown whether Vanhollebeke provided consideration for borrowing the truck or whether his use was gratuitous, when and under what circumstances Vanhollebeke was required to return the truck to Casteel, or [if] anything else concerning the nature of the agreement between Vanhollebeke and Casteel . . . would provide a factual basis for ascertaining their interests and expectations relative to the truck.”] No one challenges these factual findings. The trial court judge then concluded as a matter of law, “I think there's a reduced expectation of privacy in a borrowed vehicle. I think somebody who borrows a vehicle on an oral agreement has a reduced expectation . . . .” The broad, general statement that all drivers of vehicles owned by a third party have a reduced expectation of privacy lacks support in controlling case law. For example, Vanhollebeke argues that Randolph, 547 U.S. 103 – which held that a present, objecting co-tenant can override another tenant's consent to a search – bars the search that occurred in this case. Randolph held that under the “common authority” rule, the validity of third-party consent depends on the reasonable expectations of the parties involved. . . Vanhollebeke is certainly correct that under Randolph, when two people with common authority (like an owner and a lawful driver, perhaps of a leased or rented vehicle) disagree about whether to consent to a search, the refusal ordinarily trumps the consent,


based on our “shared social expectation” of a lawful driver and a possessor's right to privacy. . . . Property law supports that general expectation. A driver may be using a vehicle based on a lease, a rental, a sharing arrangement, or some other agreement. Such a property right might also form the basis for an enforceable privacy right. . . . . In coming to a different conclusion [in this case], the Court of Appeals relied on decisions from Georgia, Texas, and the Eighth Circuit that declined to extend the Randolph rule (of respecting the refusal of one with common authority, rather than the consent of another with common authority) to vehicles. The Court of Appeals came to that conclusion "because of society's lessened expectation of privacy in vehicles as compared to homes." Vanhollebeke, 197 Wn. App. at 75-76 . . . . We need not opine on the correctness of those factually distinguishable decisions. The key point is that we disagree with the Court of Appeals that these decisions support a broad, general rule that drivers assume the risk of an owner’s consent to search. . . . . We therefore disagree with the State’s and Court of Appeals’ broad, general assertion that a driver of a vehicle owned by another person generally assumes the risk that the third-party owner will consent to a police search. . . . Instead, leases, rental contracts, sharing arrangements, and other current societal expectations or property rights or agreements might bar such third-party consent searches . . . . The evidence in this case, however, gave the officers good reasons to believe the vehicle was stolen; this driver, without a key or identification and with a punched out ignition clearly visible, therefore assumed the risk that the police would contact the absent owner and seek consent to search We need not decide exactly when a driver's right to privacy in another’s vehicle starts to fade away. We are faced with the much narrower issue of whether the driver of a vehicle he claimed he borrowed but that appears to be stolen – due to the punched out ignition and the driver's lack of a key, along with the driver's claim that he locked it in the vehicle when he exited contrary to the officer's command – assumes the risk that the police will contact the owner and that owner will consent to a police search. The answer to that question is clearly yes. This is consistent with the reasoning in the United States Supreme Court's "common authority" cases that "legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Rakas v. Illinois, 439 U.S. 128, 143 n.l2 (1978) (“A burglar plying his trade in a summer cabin during the off season may have a thoroughly justified subjective expectation of privacy, but it is not one which the law recognizes as ‘legitimate.’”). The search in this case did not violate the Fourth Amendment.


Vanhollebeke argues that even if the Fourth Amendment does not prohibit the search that occurred in this case, article I, section 7 does. He is correct that article I, section 7 traditionally provides more robust protection of privacy rights and does not depend on the Fourth Amendment's reasonableness balancing. But Vanhollebeke agrees that Mathe and the Fourth Amendment provide the two-question framework for analyzing whether the owner's consent can trump the driver's refusal. We therefore have no occasion to revisit the Mathe framework for analysis here. . . . . [Conclusion] The driver of a vehicle generally has a right to refuse a police search of that vehicle. But that driver may assume the risk that the police will contact an absent owner and seek that owner’s consent to search instead, in limited circumstances. Vanhollebeke assumed the risk that absent owner Casteel might consent to a search in this case. He did this by words, actions, and plain-view evidence, giving the police officers good reason to believe the truck might be stolen. We therefore affirm the Court of Appeals decision upholding denial of the motion to suppress.

LEGAL UPDATE EDITORIAL COMMENTS: 1. To be legally safest, Washington officers should now generally assume that the owner of a vehicle, whether present or absent, cannot consent to a search of the vehicle when the vehicle was at the time of law enforcement contact under the control of a person known to be a legitimate borrower of the vehicle. When in doubt and when possessed of probable cause, as the officers appeared to be here, officers should impound the vehicle and seek a search warrant. 2. I wonder if the officer who talked to the owner asked the owner about the punched ignition? It seems to me that would be a reasonable line of inquiry in these circumstances. 3. The Court says that its assumption-of-risk conclusion is due to Vanhollebeke’s words, actions, and the plain-view evidence, “giving the police officers good reason to believe the truck might be stolen.” I am struggling to understand what the Court is saying in its apparent reliance on the initial impressions that the officers had before contacting the truck’s owner. I don’t think that the Court is saying that the officers could rely on the absent owner’s consent on the grounds that they reasonably believed, at the time of the search, that the truck was stolen. The owner told an officer that he had loaned the truck to Vanhollebeke. At that point, circumstances changed for the officers, and it would be unreasonable for the officers to think the truck was stolen. Instead, the Court seems to be saying that, with his errant behavior involving the truck, Vanhollebeke assumed the risk that the absent owner, Casteel, might consent to a search if the police told that owner about Vanhollebeke’s conduct. Put slightly differently, I guess that the Court is saying that by his behavior (driving while suspended, openly displaying drug paraphernalia, driving a vehicle with a punched-out ignition, and disobeying officers’ requests to stay in the vehicle during a traffic stop) Vanhollebeke assumed the risk that the owner would find out about his shenanigans and would consent to a search of the vehicle based on the owner’s concerns about the shenanigans. Whether that is the basis of the ruling is not clear to me; this is my best guess. And, it is anybody’s guess whether and how, if that is the ruling, this logic would extend to other varied situations involving vehicle borrowers who engage in shenanigans not anticipated by the lender.


4. The Vanhollebeke Opinion includes the following footnote:

[State v. Cantrell, 124 Wn.2d 183 (1994)] held that where the passenger [the lending party’s son] in a borrowed car consents to a search of that car and the driver does not object, contraband found in the search is admissible against the non-objecting driver. . . . The Cantrell court explicitly declined to decide whether the result would be different if the vehicle's nonconsenting occupant objected instead of remaining silent. . . .

In Cantrell, in light of a reduced expectation of privacy in a vehicle, the Washington Supreme Court declined to apply to a motor vehicle consent search the ruling in State v. Leach, 113 Wn.2d 735 (1990), in which the Court held under the Washington Constitution that, where two business partners with equal property interests were present at their office, consent from both of them was necessary to get a valid consent to search the office. See also State v. Morse, 156 Wn.2d 1 (2005) (likewise requiring all-present-residents’ consent as to a residential consent search where a defendant-resident was present and not asked for consent). The Vanhollebeke opinion points out that Cantrell was decided under the Fourth Amendment and not under article I, section 7 of the Washington Constitution. I have reason to hope that the Washington Supreme Court will not apply the fixed- premises all-present-parties-consent rule of Leach and Morse to vehicle searches. See, for instance, State v. Witherrite, 184 Wn. App. 859 (Div. III, 2014), where the Court of Appeals ruled that, because less privacy protection is provided for vehicles than for homes under article I, section 7, Ferrier warnings, while the best practice, are not mandated in order to obtain first-party consent. However, to once again state the obvious, however, the safest legal route in Washington is to seek a warrant when there is probable cause to search a vehicle, as there was in this case based on the officer’s open view observations from outside the passenger area. SEARCH OF PROBATIONER’S PROPERTY BY CCO: ARTICLE I, SECTION 7 OF THE WASHINGTON STATE CONSTITUTION INTERPRETED AS REQUIRING A NEXUS BETWEEN (1) THE SUSPECTED VIOLATION OF PROBATION AND (2) THE PROBATIONER’S PROPERTY THAT IS SEARCHED State v. Cornwell, ___ Wn.2d ___ , 2018 WL ___ (March 15, 2018) Facts and Proceedings below: (Excerpted from Washington Supreme Court majority opinion)

In September 2013, petitioner Curtis Lament Cornwell was placed on probation. His judgment and sentence allowed his probation officer to impose conditions of his release, which included the following provision:

I am aware that I am subject to search and seizure of my person, residence, automobile, or other personal property if there is reasonable cause on the part of the Department of Corrections to believe that I have violated the conditions/requirements or instructions above.


Cornwell failed to report to the Department of Corrections (DOC) in violation of his probation, and DOC subsequently issued a warrant for his arrest. Cornwell first came to the attention of [Police Officer A] and {CCO B] because of a distinctive Chevrolet Monte Carlo observed outside a house suspected of being a site for drug sales and prostitution. {CCO B] later spoke with the registered owner of the vehicle, who said that she had given the car to Cornwell to drive but she wanted it back. Unfamiliar with Cornwell, one of the officers conducted a records check and determined he had an outstanding warrant. In late November 2014, at approximately 1:00 a.m., [Police Officer A] spotted the Monte Carlo while on patrol with [Police Officer B], another member of the Tacoma Police Department. [Police Officer A] testified that he intended to stop the vehicle because he believed Cornwell was driving it and he had an outstanding warrant. He did not initiate the stop based on any belief that the car contained drugs or a gun or because he observed a traffic violation. Before [Police Officer A] could activate his police lights, the car pulled into a driveway and Cornwell began to exit it. Cornwell ignored [Police Officer A's] orders to stay in the vehicle, and [Police Officer A] believed Cornwell was attempting to distance himself from the car. [Police Officer A] then ordered Cornwell to the ground. Cornwell started to lower himself in apparent compliance before jumping up and running. Cornwell was apprehended after both officers deployed their lasers. He had $1,573 on his person at the time of arrest. After securing Cornwell, [Police Officer B] called [CCO B} to the scene. [CCO B] testified that his job is “to help apprehend fugitives of [DOC] as well as to look into violations of people that are on probation.” He testified that he believed Cornwell’s warrant was for his failure to report to DOC because “that’s pretty much why there’s a warrant in the system is they failed to report to [DOC].” Asked if he could think of another reason a warrant would issue, he said, "I can’t think of anything that would be different.” Upon arrival at the arrest scene, CCO Grabski searched the Monte Carlo. He described the basis for his search as follows:

When people are in violation of probation, they’re subject to search. So he’s driving a vehicle, he has a felony warrant for his arrest by [DOC] which is in violation of his probation. He’s driving the vehicle, he has the ability to access to enter the vehicle, so I’m searching the car to make sure there’s no further violations of his probation.

He explained, “If there is anything in the vehicle, whether it is in a suitcase, clothing, I’m going to go through those items.” In this case, [CCO B] found a black nylon bag sitting on the front seat of the car. The bag contained oxycodone, amphetamine and methamphetamine pills, sim cards, and small spoons. A cell phone was also found in the car. Cornwell moved pursuant to CrR 3.6 to suppress the evidence obtained during the vehicle search. In denying the motion, the trial court stated that any subjective expectation of privacy Cornsell had “was not. . . objectively reasonable” given that he


was on probation and had signed conditions of release that reflected his reduced expectation of privacy. A jury convicted Cornwell of three counts of unlawful possession of a controlled substance with intent to deliver and one count of resisting arrest. In an unpublished opinion, the Court of Appeals affirmed, holding that there need not be a nexus between the property searched and the alleged probation violation. . . . Alternatively, the court held that if such a nexus were required, it was satisfied in this instance.

[Footnote omitted] ISSUE AND RULING: Does article I, section 7 of the Washington constitution require a nexus between the suspected probation violation and the probationer’s property searched by a Community Corrections Officer, and, if so, was there such a nexus established in this case where the probationer’s car was searched by the CCO following the probationer’s arrest on a warrant for failure to report to the Department of Corrections? (ANSWER BY SUPREME COURT MAJORITY: Yes, there is such a nexus requirement, and no, the nexus requirement was not met in this case) Result: Reversal of unpublished decision by Division Two of the Court of Appeals; the Court of Appeals had affirmed the Pierce County Superior Court convictions of Curtis Lamont Cornwell for three counts of unlawful possession of a controlled substance with intent to deliver and one count of resisting arrest. Note regarding result: The Supreme Court majority and dissenting opinions do not address the resisting arrest conviction of Cornwell, but a negative inference can be drawn from the majority opinion that Cornwell’s conviction for resisting arrest is not reversed by the Supreme Court decision. ANALYSIS: in State v. Jardinez, 184 Wn. App. 518 (Div. II, 2014), a panel of the Court of Appeals held that RCW 9.94A.631 was violated where a Community Corrections Officer searched a probationer’s electronic device without reasonable suspicion that the device contained evidence of criminal conduct or of violation of other conditions of community custody. In an earlier decision, a different panel of Division Two concluded in State v. Parris, 163 Wn. App. 110 (Div. II, 2011) that there was no such nexus requirement for CCO searches of the property of violating probationers. The Cornwell majority opinion concludes that State v. Parris was erroneously decided. The majority opinion in Cornwell describes the 2014 Jardinez ruling by the Court of Appeals as follows:

For example, the defendant in Jardinez failed to report for a meeting and admitted marijuana use, both violations of his conditions of release. . . . The CCO used these violations as the basis for a search of Jardinez's iPod, during which he found a photo of Jardinez with a firearm. The photo was admitted as evidence at trial, which resulted in a firearm conviction, even though the CCO "had no reason to believe . . . Jardinez possessed a firearm" before conducting the search. . . . Such sweeping searches conflict with article I, section 7’s mandate that an individual’s privacy right be reduced only when and to the extent necessary. . . .


Now, a 7-member majority of the Washington Supreme Court has gone a step further than the Jardinez decision’s interpretation of a statute, concluding that the statute both requires a nexus and also reflects a constitutional requirement under article I, section 7 of the Washington constitution. The constitutional requirement is that a CCO may not justify a search as a probationer search unless the CCO can point to a nexus between the suspected violation and the probationer’s property that is searched. The majority opinion in Cornwell concludes further that no such nexus was present in the circumstances of this case. The majority opinion in Cornwell summarizes the Supreme Court’s ruling as follows:

Individuals on probation have a limited, but constitutionally protected, privacy interest that does not permit CCOs to conduct open-ended property searches. For a search to be lawful, there must be a nexus between the property searched and the alleged probation violation. In this case, the search of Cornwell's vehicle was unlawful because there was no nexus between the search and his suspected probation violation of failure to report to DOC. The evidence seized during the search should have been suppressed.

The dissenting opinion in Cornwell is authored by Justice Madsen and joined by Justice Owens. The dissent argues in vain both: (1) that the Supreme Court majority went too far in its constitutional interpretation; and (2) that the facts of this case meet the nexus requirement. LEGAL UPDATE EDITORIAL NOTE: The Fourth Amendment is not as restrictive as the Washington constitution on the special rules for searches of probationers, though the Ninth Circuit did rule in United States v. Lara, 815 F.3d 605 (9th Cir., March 3, 2016) that the Fourth Amendment limits the search of a probationer’s cell phone. That special limitation was imposed primarily because of the special privacy protections restricting law enforcement searches of cell phones. EXCLUSIONARY RULE “INDEPENDENT SOURCE” DOCTRINE: WHERE DISTRICT COURT DID NOT HAVE AUTHORITY TO ISSUE SEARCH WARRANT FOR OUT-OF-STATE PHONE RECORDS, SUBSEQUENT ISSUANCE OF WARRANT BY SUPERIOR COURT BASED ON SAME SHOWING HELD TO MAKE ADMISSIBLE THE PHONE RECORDS THAT HAD BEEN OBTAINED UNDER THE DISTRICT COURT WARRANT In State v. Betancourth, ___ Wn.2d ___ , 2018 WL ___ (March 22, 2018), the Washington Supreme Court unanimously rules that cell phone records that were initially obtained from Verizon’s Texas business location pursuant to a jurisdictionally invalid Yakima District Court search warrant (because the District Court had no jurisdiction out of state) were properly admitted at trial under the Exclusionary Rule’s Independent Source Doctrine. That is because post-seizure, a second search warrant was obtained from the Yakima County Superior Court authorizing the seizure of the already-seized phone records based upon the same showing as was made for the initial District Court search warrant. The Supreme Court explains that the Independent Source Doctrine is recognized under the Washington Constitution, article I, section 7; and that the Doctrine did not require the State to engage in the empty gesture of returning the initial set of phone records to the phone company and then obtaining a duplicate set of records under the Superior Court search warrant. The Supreme Court also explains that its ruling does not create a good faith or reasonableness exception to the search warrant requirement under the Washington constitution.


Result: Affirmance of unpublished Division Three Court of Appeals decision that affirmed the Yakima County Superior Court convictions of Ray Leny Betancourth for second degree felony murder and first degree assault.

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WASHINGTON STATE COURT OF APPEALS DRIVE-BY SHOOTING STATUTES DO NOT APPLY TO CIRCUMSTANCES WHERE PERPETRATOR RAN 63 FEET FROM HIS VEHICLE AND AROUND THE CORNER OF A BUILDING BEFORE SHOOTING THE VICTIM In State v. Vasquez, ___ Wn. App. 2d ___ , 2018 WL ___ (Div. III, March 1, 2018), Division Three of the Court of Appeals rules that the facts of the case do not satisfy the close connection that is required between (1) a perpetrator and (2) a vehicle for a violation of the drive-by shooting statute, RCW 9A.35.045, and the drive-by sentence aggravator, RCW 10.95.020(7). The facts of this fall short where the perpetrator ran 63 feet from his vehicle and around the corner of a grocery store prior to shooting and killing the victim. Result: In an unpublished part of the opinion of the Court of Appeals, the Court explains as follows the result of its ruling on Anthony Rene Vasquez’s Grant County Superior Court convictions and sentence:

Our disposition of the drive-by shooting issue resolves the issues raised by Mr. Vasquez in his appeal. Without proof of a drive-by shooting, counts four, five, and six (all of which charged drive-by shooting) must be dismissed. In addition, Mr. Vasquez’s sentence for aggravated first degree murder must be reversed, with instructions to strike the drive-by shooting aggravator. On remand, Mr. Vasquez must be sentenced for non-aggravated first degree murder, which is a term sentence. See RCW 9.94A.510, .515. The 60-month firearm enhancement will follow his ultimate sentence:

THREE HOLDINGS: (1) NO VIOLATION OF SIXTH AMENDMENT CONFRONTATION RIGHT IN VICTIM’S TREATMENT-FOCUSED STATEMENTS TO MEDICAL PERSONNEL; (2) CONFRONTATION CLAUSE BARS ADMISSION OF SEPARATE STATEMENTS TO LAW ENFORCEMENT OFFICERS, BUT JUDGE’S ERROR RULED HARMLESS; (3) EVIDENCE IS SUFFICIENT TO CONVICT DEFENDANT OF UNLAWFUL IMPRISONMENT WHERE THERE WAS NO EVIDENCE OF EASY MEANS OF ESCAPE FOR VICTIM LEGAL UPDATE EDITORIAL NOTE RE SCANLAN DECISION: The opinion of the Court of Appeals is very detailed, both in describing the facts and in describing the law on the several issues in the case. This Legal Update entry is, by contrast, quite summary. Readers may wish to read the actual opinion on the Washington Courts Opinions webpage. State v. Scanlan, ___ Wn. App. 2d ___ , 2018 WL ___ (Div. I, March 12, 2018) Facts and Proceedings below:


In 2013, Leroy Bagnell, an 82-year-old widower, was living independently in the Federal Way home that he had shared with his late wife of more than 50 years. Sometime in 2013, Bagnell met Scanlan, a woman 30 years his junior. They quickly became friends and about two months later, Scanlan moved in with Bagnell. In 2014, Bagnell obtained a protection order against Scanlan. About two weeks later, family members checked on Bagnell and found him badly battered. Bagnell reported to them and others that Scanlan had beaten him with various objects (possibly including a candlestick, a broom handle, a hammer, a golf club, and a crowbar) and had kept him confined in the house over a two-day period. Bagnell was transported to the hospital. There he was treated in the emergency room for his injuries, which included: extensive bruising all over his body, four large open wounds on his legs, wounds on his arms, and fractures on both hands. Among other things, Bagnell described to medical providers, including a hospital social worker, Scanlan’s causing of his injuries and his home-imprisonment. No law enforcement officers were present during his making of those statements to medical providers. Bagnell also separately talked about the attacks and the imprisonment to law enforcement investigators. The State charged Scanlan with assault in the second degree (count 1), felony violation of a court order (count 2), unlawful imprisonment (count 3), and assault in the fourth degree (count 4). All counts contained a domestic violence allegation. The victim, Bagnell, did not testify at trial. However, the trial court admitted statements that Bagnell made to medical providers in the emergency room, as well as subsequent statements he made to a social worker and his primary care physician and wound care medical team. The trial court also admitted hearsay statements of Bagnell to law enforcement investigators. The jury found Scanlan guilty of assault in the second degree, felony violation of a court order, and unlawful imprisonment. ISSUES AND RULINGS: (1) Did the trial court’s admission of victim Bagnell’s hearsay statements to medical treatment providers, including the hospital social worker, violate defendant Scanlan’s right to confrontation under the federal constitution’s Sixth Amendment? (ANSWER BY COURT OF APPEALS: No) (2) Did the trial court’s admission of victim Bagnell’s hearsay statements to law enforcement officers violate defendant’s right to confrontation under the federal constitution’s Sixth Amendment? (ANSWER BY COURT OF APPEALS: Yes, because there was no emergency at the time of those statements; however, admission of the officers’ testimony was harmless error in light of the other evidence of Scanlan’s guilt) (3) Is there sufficient evidence in the record of restraint to support Scanlan’s conviction of unlawful imprisonment? (ANSWER BY COURT OF APPEALS: Yes) Result: Affirmance of King County Superior Court convictions of Theresa Gail Scanlan for assault in the second degree and unlawful imprisonment. The State conceded Scanlan’s “double jeopardy” argument that the conviction of “felony violation of a court order” must be struck because it was based on the same assaultive conduct as the second degree assault conviction. ANALYSIS: Sixth Amendment Right to Confrontation


Statements to medical providers: The Sixth Amendment confrontation clause bars the admission of “testimonial” hearsay unless the declarant is unavailable to testify and the defendant had a prior opportunity for cross-examination. See Crawford v. Washington, 541 U.S. 36 (2004) and numerous decisions interpreting Crawford’s testimonial hearsay rule. The Court of Appeals concludes that Bagnell’s hearsay statements quoted or described by the medical providers were not “testimonial” under the Crawford line of cases. That is because the medical providers’ “primary purpose” in asking Bagnell, a severely injured elderly man, about how he was injured was to diagnose his injuries and treat them. The Scanlan Court rejects her argument that the “medical waivers” that Scanlan signed somehow made the hearsay statements testimonial under the Sixth Amendment.

Statements to law enforcement investigators: In the years following the U.S. Supreme Court decision in Crawford, the U.S. Supreme Court has on several occasions more fully explained what is testimonial hearsay in the context of police interrogations. Where the police are involved in procuring an un-confronted statement, the issue of whether the statement is “testimonial” depends upon the “primary purpose” for the law enforcement questioning during which the statement was made. Courts have held that a victim’s statements to a 911 operator and initial statements to police immediately upon their arrival at the scene of crime incident were, viewed objectively, made during the course of an ongoing emergency and thus are non-testimonial for confrontation clause purposes. But in this case, there was no ongoing emergency at the point when the law enforcement investigators talked to Scanlan, so the Court of Appeals holds that those hearsay statements were testimonial and not admissible under the Sixth Amendment right to confrontation. Sufficiency of Evidence of Unlawful Imprisonment The key part of the Court’s analysis of this issue is as follows:

The State charged Scanlan with unlawful imprisonment under RCW 9A.40.040, which states: “A person is guilty of unlawful imprisonment if he or she knowingly restrains another person.” To prove restraint, the State had to prove that Scanlan restricted Bagnell’s movements “(a) without consent and (b) without legal authority, in a manner which interfered substantially with his liberty.” . . . . RCW 9A.40.010(6). Restraint is without consent if it is accomplished by physical force, intimidation, or deception. RCW 9A.40 010(6). There is sufficient evidence of unlawful imprisonment. First, Bagnell told Dr. Britt that “he had been in his home for two days, that he had been imprisoned, or at least held in his home, against his will. Physician’s assistant Friel testified that Bagnell told her that Scanlan locked him in a room: “[h]e was living with a girlfriend at the time who had locked him in a room and had beat him with a candlestick, a broom and a hammer over multiple areas.” Second, circumstantial evidence supports the inference that Scanlan used force or the threat of force to restrain Bagnell. Bagnell’s children found the front door locked, their father in a stupor, the house in disarray, and a broken broom, hammer, golf club, and crowbar. Bagnell’s children were also unable to contact their father by phone. Additionally, Bagnell’s cell phone was found broken, a battery was found to have been removed from a cordless phone in the home, and another phone was found to have no dial tone. Viewed in the light most favorable to the State, this is sufficient evidence of


unlawful imprisonment. Scanlan, relying on State v. Kinchen, 92 Wn. App. 442, 451-52 (1998), argues that there was insufficient evidence of unlawful imprisonment because there was a means of escape. In Kinchen, we held that there was insufficient evidence of unlawful imprisonment where the victims were able to get in and out of a locked apartment. Stacey Kinchen locked his two badly behaved children in his apartment, but the boys were able to enter and exit the apartment through a window and, when it was unlocked, a sliding glass door. Kinchen was convicted of unlawful imprisonment, but we reversed his conviction. We reasoned that there was insufficient evidence of unlawful imprisonment because the boys could and did get out. We held that there was insufficient evidence to support a charge for unlawful imprisonment in the apartment. . Scanlan's argument fails because there was evidence that BagneII was held against his will: he told Dr. Britt that “he had been in his home for two days, that he had been imprisoned, or at least held in his home, against his will.” We affirm Scanlan’s conviction for unlawful imprisonment.

[Some citations omitted; others revised for style] LEGAL UPDATE RESEARCH NOTE: For a relatively recent and thorough discussion of federal case law developments under the Sixth Amendment’s confrontation clause, viewed in large part from a practical law enforcement officer perspective, see the three-part article, “Confrontation clause developments and their impact on effective investigation and prosecution: one step forward after two steps back?” in The Federal Law Enforcement Informer (The Informer (Internet address: [http://www.fletc.gov/training/programs/legal-division/the-informer]). The Informer is a monthly publication of the Department of Homeland Security, Federal Law Enforcement Training Center (FLETC), Legal Training Division. Subscription is available by free, secure email service. The Informer provides summaries of federal appellate court decisions, and it also provides occasional articles on federal case law (note that on some search and seizure issues, Washington case law is more restrictive on law enforcement officers than federal law). Part 1 of the confrontation clause article appeared in The Informer for December 2011, Part 2 of the article appeared in The Informer for January 2012, and Part 3 appeared in The Informer for July 2012. LOCAL MARIJUANA ORDINANCES: CLARK COUNTY ORDINANCE BANNING RETAIL SALE OF MARIJUANA IN UNINCORPORATED AREAS UPHELD AGAINST STATE CONSTITUTIONAL AND STATUTORY ATTACKS In Emerald Enterprises, LLC v. Clark County, ___ Wn. App. ___ , 2018 WL ___ (Div. II, March 13, 2018), Division Two of the Court of Appeals holds that a Clark County ordinance that prohibits the retail sale of marijuana in its unincorporated areas: (1) does not violate article XI, section 11 of the Washington Constitution (which grants broad powers to counties to self-govern); and (2) is not preempted by chapter 69.50 RCW. Result: Affirmance of Cowlitz County Superior Court order granting summary judgment to Clark County and the Washington Attorney General’s Office and denying injunctive relief to Emerald


Enterprises, LLC; also, affirmance of a Clark County Superior Court order against Emerald Enterprises, LLC on civil administrative issues relating to: (1) the company’s sales of marijuana contrary to County code; and (2) the company’s obtaining of a building permit based on misrepresentations.

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BRIEF NOTES REGARDING MARCH 2018 UNPUBLISHED WASHINGTON COURT OF APPEALS OPINIONS ON SELECT LAW ENFORCEMENT ISSUES Under the Washington Court Rules, General Rule 14.1(a) provides: “Unpublished opinions of the Court of Appeals have no precedential value and are not binding on any court. However, unpublished opinions of the Court of Appeals filed on or after March 1, 2013, may be cited as nonbinding authorities, if identified as such by the citing party, and may be accorded such persuasive value as the court deems appropriate.” In the January 2018 Legal Update, I added a new feature to the Legal Update. Every month I will include a separate section that provides very brief issue-spotting notes regarding select categories of unpublished Court of Appeals decisions. I will include such decisions where issues relating to the following subject areas are addressed: (1) Arrest, Search and Seizure; (2) Interrogations and Confessions; (3) Implied Consent; and (4) possibly other issues of interest to law enforcement (though probably not sufficiency-of-evidence-to-convict issues). In March 2018, 11 unpublished Court of Appeals opinions fit these categories. I do not promise to be able catch them all, but I will make a reasonable effort to find and list all decisions with these issues in unpublished opinions from the Court of Appeals. I hope that readers, particularly attorney-readers, will let me know if they spot any cases that I missed in this endeavor, as well as any errors that I may make in my brief descriptions of case results. 1. State v. Charles S. Longshore: On March 5, 2018, Division One of the COA decides against the criminal defendant’s appeal and affirms his Mason County Superior Court convictions on two counts of aggravated first degree murder. Among other things, defendant loses an argument that his attorney-client privilege was violated when a detective looked at papers (one handwritten page of which was headed “Questions for Attorney”) in the defendant’s jail cell after the defendant was transferred. The Court of Appeals rules that the trial court did not abuse its discretion in determining that, even assuming for the sake of argument that Longshore’s attorney-client privilege was violated, (1) any violation was not the result of egregious or deliberate intrusion by government agents, and (2) any such assumed violation did not prejudice the defendant. 2. State v. Gustavo Allen: On March 6,, 2018, Division Two of the COA decides against the criminal defendant’s appeal (except for a minor error on a sentencing question) and affirms his Clark County Superior Court convictions for (1) possession of heroin with intent to deliver, and (2) possession of methamphetamine with intent to deliver, the latter conviction accompanied by school zone and firearm enhancements. The Court of Appeals rejects the defendant’s attack on a search warrant for his home and holds that the warrant was supported by a probable cause affidavit that showed that a person living in the home delivered illegal drugs to a confidential informant in controlled buys away from the home; the Court of Appeals rules that the search warrant affidavit established a nexus between the home and the drug dealing by a resident..


3. State v. Francisco Javier Muniz Quintero: On March 8, 2018, Division Three of the COA decides against the defendant’s appeal and affirms his Benton County Superior Court second degree murder conviction. The Court of Appeals rejects the defendant’s argument that the trial court should have suppressed his statements to law enforcement based on the failure by law enforcement to advise him, known to the officers to be a Mexican national, of his Vienna Convention right to contact his consulate. The Court of Appeals rules that a violation of this right does not trigger a suppression remedy. The Court cites State v. Jamison, 105 Wn. App. 572, 583 (2001) and United States v. Lombera-Camorlinga, 206 F.3d 882, 888 (9th Cir. 2000). LEGAL UPDATE EDITORIAL NOTES RELATING TO QUINTERO DECISION: For discussion of the Vienna Convention rights see the discussion at pages 41-51 of the Washington-focused law enforcement and prosecutor guide on the Criminal Justice Training Commission’s LED internet page: Confessions, Search, Seizure and Arrest: A Guide for Police Officers and Prosecutors, May 2015, by Pamela B. Loginsky, Staff Attorney, Washington Association of Prosecuting Attorneys. 4. State v. Jeremy Wayne Ehrmantrout: On March 12, 2018, Division One of the COA decides in favor of the criminal defendant’s appeal on a single issue and reverses defendant’s Snohomish County Superior Court convictions on one count of first degree rape of a child and three counts of first degree child molestation. The State conceded on appeal that a detective’s taping of a phone conversation between the then-already-charged defendant and his victim violated the defendant’s Sixth Amendment right to counsel, which does not allow law enforcement to elicit incriminating statements from charged defendants without first obtaining a waiver of Sixth Amendment rights with Miranda warnings. See Maine v. Moulton, 474 U.S. 159 (1985) (Sixth Amendment right); Montejo v. Louisiana, 129 S.Ct. 1079 (2009) (authority of law enforcement to contact charged defendant and seek a waiver). The State’s brief in the Ehrmantrout case indicates that at the point of doing the tape recording the detective did not know that the defendant had very recently been charged, though of course ignorance of that fact is not a legal excuse. The case is remanded to Superior Court for re-trial. LEGAL UPDATE EDITORIAL NOTES RELATING TO EHRMANTROUT DECISION: Sixth Amendment Right To Counsel: For discussion of the Sixth Amendment right to counsel as it directly impacts law enforcement investigations, see the following: (1) discussion at pages 31-36 and 64 of the Washington-focused law enforcement and prosecutor guide on the Criminal Justice Training Commission’s LED internet page: Confessions, Search, Seizure and Arrest: A Guide for Police Officers and Prosecutors, May 2015, by Pamela B. Loginsky, Staff Attorney, Washington Association of Prosecuting Attorneys; and (2) pages 1-3 of “Initiation of Contact Rules Under The Fifth Amendment” an article by John Wasberg on the Law Enforcement Digest internet page of the Criminal Justice Training Commission. Electronic surveillance and recording: For Washington-focused discussion of the law regarding electronic surveillance and recording, see the following publication at a link on the Home Page of the website of the Washington Association of Prosecuting Attorneys: Electronic Surveillance and Digital Evidence in Washington State, 2017, a 223-page compilation by Susan K. Storey, Sr. Deputy Prosecuting Attorney, Retired, King County. 5. State v. Nicole R. Jones: On March 12, 2018, Division One of the COA decides against the criminal defendant’s appeal and affirms her Snohomish County Superior Court conviction of possession of heroin. Among other things, the Court of Appeals holds that a law enforcement


officer had probable cause to arrest her for felony possession of drugs where the officer’s suspicion was based primarily on a picture taken by school personnel featuring (1) Jones sleeping in her car in a school parking lot, (2) with a piece of foil in her lap with apparent “snail trail” black marks from heated heroin on the foil. 6. State v. Felipe Ernesto Gonzaez-Hernandez: On March 20, 2018, Division Three of the COA decides against the criminal defendant’s appeal and affirms his Klickitat County Superior Court conviction for possession of methamphetamine with intent to deliver. Among other things, the Court upholds two searches under warrants in a case in which controlled buys helped establish probable cause and led to issuance of a first search warrant, and in which discoveries in the execution of that warrant led to issuance of a second search warrant. 7. State v. Azariah Chenaz Ross: On March 20, 2018, Division Two of the COA decides against the criminal defendant’s appeal of his Pierce County Superior Court convictions of two counts of burglary in the first degree, three counts of robbery in the first degree, six counts of unlawful imprisonment, four counts of trafficking in stolen property in the first degree, and one count of theft of a firearm. The Court of Appeals rejects his argument that his confession was involuntary, and the Court upholds the trial court ruling that in light of the absence of substantial evidence to support his theory, defendant did not establish that he was under the influence of Percocet at the time that he confessed to police. 8. State v. John Viet Huynh: On March 20, 2018, Division Two of the COA decides against the criminal defendant’s appeal of his Thurston County convictions for residential burglary and theft of a motor vehicle. Among other rulings, the Court of Appeals holds that, although the testimony of an officer that, immediately after arrest, the defendant “wasn’t providing information to [another officer,” unlawfully commented on the defendant’s exercise of his right to silence, the failure of defense counsel to object did not impact the outcome of the trial. 9. State v. Andre Jean Ash: On March 26, 2018, Division One of the COA decides against the criminal defendant’s appeal from his Snohomish County Superior Court conviction for assault of a child in the second degree. The Court of Appeals rejects defendant’s arguments and concludes, under the circumstances, that: (1) low-key questioning at the police station was not custodial and thus did not require Miranda warnings; and (2) defendant’s lack of a full night’s sleep and the detective’s use of Reid minimization technique and suggestion of a need for anger management classes did not make the interrogation coercive or the defendant’s statements otherwise involuntary. 10. State v. Joel Edward Payne: On March 26, 2018, Division One of the COA decides against a criminal defendant’s appeal from his King County Superior Court convictions for malicious harassment and first degree assault with a deadly weapon. The Court of Appeals rejects defendant’s argument that law enforcement acted in bad faith and therefore violated his Due Process right to have evidence preserved where law enforcement gave a ring back to the crime victim instead of preserving the ring as evidence so that it could be tested for DNA. 11. State v. Richard Wayne Blair: On March 27, 2018, Division Two of the COA decides against the criminal defendant’s appeal and affirms his Pierce County Superior Court conviction for first degree murder. The Court addresses a Miranda issue, holding that the arresting officer did not violate Miranda in asking an arrestee if he was injured, because this was not a question that was reasonably likely to elicit an incriminating response.

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NEXT MONTH

The April 2018 Legal Update for Washington Law Enforcement will include an entry digesting State v. McKee, ___ Wn. App. 2d ___ , 2018 WL ___ (Div. I, March 26, 2018), in which the Court of Appeals rules against the State in holding that a search warrant to search a cell phone for evidence of the crimes of “Sexual Exploitation of a Minor RCW 9.68A.040” and “Dealing in depictions of minor engaged in sexually explicit conduct RCW 9.68A.050” does not meet the particularity requirement of the Fourth Amendment. The Court asserts that the 2015 Washington Supreme Court decision in State v. Besola, 184 Wn.2d 605 (2015) is a controlling precedent that is on-point factually and legally on the Fourth Amendment particularity issue. Note that the search warrant application in McKee was made several years before the Washington Supreme Court decided Besola.

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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 is 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/]. Decisio ns 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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LEGAL UPDATE FOR WASHINGTON LAW ENFORCEMENT 2018 legal update... · 2018-04-04 · Legal Update - 3...

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