Interesting Gunwall case on article 1, section 22.

State v. Martin is not an article 1, section 7 case, but is an interesting case anyways.  Using the Gunwall analysis, the Washington Supreme Court holds that article 1, section 22, should be analyzed independently of the sixth amendment.  The majority nonetheless basically follows federal interpretation and affirms the conviction.  Still, it provides a path for future arguments that go beyond the sixth amendment.  Here are links to the majority, concurrence, and dissenting opinions.

Judges on Writing.

Bryan Garner (the god of legal writing if you weren't aware) has videos of interviews he's done with judges on writing.  It includes Supreme Court justices too.  He has also released a transcription of his interviews with the Supreme Court justices. Check out the videos here.  Check out the transcription here.

Long time no post.

I think I'll start adding to the blog again. 

State v. Lyons

State v. Lyons involved whether a warrant issued to search Lyons' residence for marijuana lacked probable cause on its face.

Police sought and obtained a warrant to search Lyon's residence.  Marijana was found. The affidavit in support of the warrant stated:

Within the last 48 hours a reliable and confidential source of information (CS) contacted YCNU Detectives and stated he/she observed narcotics, specifically marijuana, being grown indoors at the listed address. The CS knows the suspect and homeowner as "Jimmy". The CS observed the growing marijuana while inside an outbuilding on the property of the listed residence. The CS observed the marijuana growing in potted soil under active lighting designed to promote plant growth.

The trial court granted Lyon's motion to suppress for lack of probable cause to issue the warrant. The court reasoned that “48 hours” statement did not necessarily mean that the confidential source saw the marijuana in the last 48 hours, instead it meant only that the confidential source had come to the police in the last 48 hours. Warrants generally must be issued on information obtained within the last 48 hours, otherwise the information is stale.

Division 3 of the Court of Appeals reverses. The court reasons that taking into account “standard of review (abuse of discretion) and canons of construction (nontechnical reading, commonsense reading, with great deference to the magistrate, with doubts resolved in favor of the warrant)” the warrant was valid.

Judge Siddoway dissents. She agrees “with the trial court that given this form of affidavit, the magistrate is forced to assume that the officer must have intended to communicate that the confidential source's observation was recent. This is not the role of a neutral magistrate envisioned by the federal and Washington constitutions.”

State v. Ortega

State v. Ortega involved RCW 10.31.100 (Arrest without a warrant) and “the fellow officer rule.”

One common law rule is that an police officer may only arrest a person without a warrant if the person commits a felony or commits a misdemeanor in the presence of the arresting officer. Washington law essentially codifies this rule in RCW 10.31.100, but with a variety of exceptions.

Ortega was arrested for the misdemeanor of drug traffic loitering under Seattle's municipal code. One officer observed what he believed was Ortega committing this misdemeanor. That officer, who was doing surveillance, called other police officers to arrest Ortega. They did. Ortega was searched incident to arrest and cocaine was found on him. His motion to suppress was denied.

Ortega argued that the arresting officer did not have authority to arrest him because he did not commit the misdemeanor in the arresting officer's presence. Therefore, the State had violated RCW 10.31.100. The Court of Appeals rejects this argument because the observing officer maintained view of Ortega and confirmed the other officers had arrested the people had called to be arrested. Thus the observing officer was basically an arresting officer because he directed the arrest and maintained contact with the officers who actually did arrest Ortega.

The court declines to adopt the fellow officer rule in the misdemeanor context, which the State had argued applied here. The fellow officer rule is that where police officers are acting together as a unit, the cumulative knowledge of all the officers involved in the arrest may be considered in deciding whether probable cause exists to arrest a suspect. The court reasons that the fellow officer rule was not available at common law and has not been extended to the misdemeanor context under RCW 10.31.100 or by the Washington Supreme Court.

Ten Rules for Dealing with the Police

Interesting video providing tips on how to handle a police encounter.  Not a bad primer for citizens who do not know Fourth Amendment law. 

Some of the situations in the video, such as the "knock-and-talk" scenario, where police knock on a resident's door and asks for consent to enter and search a resident's home, are more difficult for state police to do lawfully in Washington State because article 1, section 7 provides greater protection than the Fourth Amendment.  That is, under article 1, section 7, a police officer must tell a resident that he or she has a right to refuse consent to the search of the resident's home.  State v. Ferrier.  Under the Fourth Amendment, a police officer does not have to tell a resident that he or she has a right to refuse consent.

State v. Swetz - Search of Vehicle Incident to Arrest

Division Two of the Court of Appeals recently decided State v. Swetz, which involved a search of a car incident to the driver's arrest. 

Swetz flagged down an officer and told the officer he had seen a bear roaming the streets. Later, the officer pulled up next to Swetz and the Swetz approached the officer. While they talked, the Officer smelled marijuana, walked to Swetz's car, and saw a bag of Marijuana in the car. He searched the car, found more marijuana and valium. Swetz was charged and convicted of possession of marijuana and possession of a controlled substance, valium.

For the first time on appeal, Swetz challenged the search of his car.  Division Two finds the error could be raised for the first time on appeal because it was a manifest error affecting a constitutional right.

The majority holds that the search was invalid under State v. Patton and State v. Valdez, both Washington Supreme court cases addressing the searches of vehicles incident to arrest in the aftermath of Arizona v. Gant, which significantly changed Fourth Amendment law on searches of vehicles incident to arrest.

The majority reads Patton and Valdez as establishing that article 1, section 7 provide greater protection than the Fourth Amendment when it comes to preventing warrentless searches of vehicles after arrest.  The majority stated that under Gant, an officer may search a vehicle incident to arrest if there is reason to believe there is evidence related to the crime for which the person was arrested. But, the court concludes the Washington Supreme Court has not extended this exception under article 1, section 7. Thus because the Officer testified that Swetz was handcuffed and secured in his police car before he searched the vehicle, the search was unlawful. The State conceded this point.

The majority addresses the exigent circumstances and determines it would not make the search lawful.

Judge Hunt dissents. He would have found that the alleged non-preserved constitutional error was not manifest and thus cannot be addressed for the first time on appeal. Alternatively, he would remand for an evidentiary hearing to allow the record to be developed and the allow the State an opportunity to argue additional exceptions to warrant requirement. He would distinguish Patton and Valdez on their facts. He also believes the exigent circumstances exception justified the search.

Interesting case overall.