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Seizures or forfeitures of property by the Washington Department of Fish and Wildlife (WDFW) are on the increase in Washington State. The motives of WDFW seem to be: 1) revenue generation, 2) increasing punishments beyond what the legislature will approve, and 3) punishing sportsmen who “hamper” investigations by exercising their right to remain silent. Either way, the law isn’t being applied fairly.

WDFW forfeiture Law

Department of Fish and Wildlife Forfeitures are governed by RCW 77.15.070. This statute provides that Fish and Wildlife agents may seize boats, airplanes, vehicles, and other articles they have probable cause to believe have been used to violate fish and game rules and regulations.

The statute does not apply to “inadvertent” violations. This statute comes to a surprise to many sportsmen, and if the statute is read literally, the Fish and Wildlife Department could seize a yacht for someone fishing without a correct license. Unfortunately this is just the kind of overreaching criminal defense lawyers are seeing around Washington State.

Who is targeted by WDFW

As a lawyer defending WDFW violations in eastern Washington, I have seen good people lose their pickup trucks and boats for minor violations. The game agents do not seize all such vehicles.  For now it is usually just  few select cases. If the matter is a minor violation and the person is cooperative usually their property is not seized or forfeited. Unfortunately, in the mind of WDFW agents, being “cooperative” means waiving your right to remain silent, ratting out your friends and family members, and allowing the agents to search your vehicle or home without a warrant. Being an outspoken critic of the Washington State Department of Fish and Wildlife certainly doesn’t help either.

Entrapment and undercover agents

When we think of undercover investigations we normally think of the FBI or DEA investigating major criminal networks. However, the Dept. of Fish and Wildlife has increasingly used this tactic to investigate even minor violations of the Fish and Game code in RCW title 77. More disturbingly, many of these investigations are what we call “reverse stings.” A reverse sting operation is when the government agents approach a citizen and offer them money to commit a crime.  The department claims they are narrowing in on people they believe are already breaking the law. In my experience defending people accused of fish and wildlife violations, the undercover agents will go to great lengths to pose as a law-breaker, often breaking the law right in front of the citizen to try to seem convincing. For example, I have cases where an WDFW agent will drive up with an open container of beer in his car. Some of the behavior amounts to entrapment.

Fighting a forfeiture or seizure

Fighting a forfeiture usually means hiring an attorney. Often times the game department will not follow the correct procedure when seizing the property and a person can fight the forfeiture on technical grounds.  The lawyer for the game department is the Attorney General’s office.  Through emails I have received through public records requests, it appears that WDFW has to pay for the time of the attorney general that assists with the forfeiture, and this can be a lot of money.  However, the game department will usually spend large amounts of money to wear down the owner of the property.  This is a common theme in WDFW cases.  The department seems to have limitless resources even when investigating a misdemeanor.  When an defense attorney is hired, he or she will usually request that the matter be heard in a court of law rather than have the matter heard by a WDFW administrative law judge.  If an attorney prevails on a forfeiture case, the citizen can seek to have his or her attorney’s fees reimbursed if the court finds that the seizure was not “substantially justified.”

Although a fish and wildlife attorney may help in individual cases, it may be that the state legislature should address this matter.  Should the state legislature in Olympia try to curtail the power of the Washington Department of Fish and Wildlife to seize property?  What do you think?  For further information see here and here.

 

Schapelle Corby is being considered for parole, but are the conditions fair? Should she be expected to admit to something she didn’t do? Schapelle Corby, unjustly convicted of smuggling drugs into Bali in 2004, may be eligible for “parole” and may be able to return to Australia in 2018.

A meeting between the Kerobokan Jail Corrections Board and jail officials took place recently to discuss the possibility of releasing Corby on parole. Two other meetings, first between Justice Ministry officials in Bali and then between officials in Jakarta, must be held before the decision on her release can be finalized. This process could take several more months. When Corby is granted parole, she will be required to serve her time at her sister’s house in Bali.

Although Corby is eligible for parole, the process has been slowed due to a strict set of conditions recently instated by the Indonesian government concerning serious crimes, including drug smuggling. These conditions include agreeing to become a “justice collaborator,” admitting guilt, and showing remorse. The prison has already sent a letter to the corrections board, saying she has “demonstrated good behavior while in prison.” Corby has also acquired letters of support from the Australian government, the head of the village where she will be serving her parole, and her family.

Also needed for Corby’s release from jail is a ministerial decree. This approval from the Justice Minister, Nugroho, can take at least two or three months to get, sometimes longer for foreigners. Her lawyer is also waiting for a letter classifying Corby’s immigration status. She could need a “stay permit” to reside in Bali, which is needed before she can apply for parole. Corby does have a choice regarding her sentence. If she stays in jail for the rest of her sentence, she will be free to go back to Australia by 2015. However, neither of these choices satisfactory for someone who is innocent of the crime she accused of committing.

In order to be released on parole, “moral and religious training” is mandatory. This is to help integrate Corby into society and help her learn to “obey the guidance process.” Corby has also signed a document stating that she will not commit any crimes, use or distribute narcotics, and that she will report to the Corrections Board every month. Parole officers will also make surprise visits at her home in Bali. She will also report to Australian Consular officials in Bali. Considering that many details prove Corby’s innocence were covered up mostly by Australian authorities, it does not seem fair that Corby is being forced to admit to something she did not do. These details include the Australian government not using legal authority to push for the forensic and DNA tests that would further prove Corby’s innocence, and the suppression of a recording of two criminals discussing details of the marijuana drug ring in the Sydney airport. It seems as if the Australian government is more concerned with hiding the evidence that a serious drug ring is based in their airports than in rescuing their own citizen from wrongful imprisonment.

See our earlier posts on Schapelle Corby here and here.

What do you think about this case?

As a defense lawyer in Spokane, I have noticed that the atmosphere surrounding the Delbert Belton murder has left everyone a little bit on edge.

I have had clients contact me wondering how this atmosphere could affect their case.  Kenan Adams-Kinard and Demetrius Glenn are two black teenagers accused of bludgeoning to death an elderly white man while he sat in his car.

Usually when an attorney speaks of a “lynch mob atmosphere” he is speaking metaphorically. However, in every news story online, there are comments calling for Kenan Adams-Kinard and Demetrius Glenn to be dragged out into the street and hanged (along with Obama, Al Sharpton and Jesse Jackson.) I keep waiting for someone to post a comment: “Let’s give Demetrius Glenn and Kenan Adams-Kinard a fair trial, and punish them severely if convicted!” I guess that is what I feel should be done.

Can’t people be furious over what happened without making it a racial issue? Once again this is the internet at its worst. Four years ago I wrote that “The Klan used hoods to protect their anonymity. Today the bad apples… are anonymously attacking… in the comment sections…”  The situation hasn’t really improved. However, some online newspapers do a better job than others when it comes to screening and deleting comments.  Some online papers have resorted to turning off comments altogether for certain articles.

After a large crowd gathered and was shouting at Demetrius Glenn while he was being transported, the staff of the Spokane County Jail decided not to risk moving Kenan Adams-Kinard.  The jail staff later made the move but did it late at night when no one was around.

 

In 2003, high school sophomore and promising football star Brian Banks was arrested for the rape and kidnap of classmate Wanetta Gibson. He was sentenced to seven years in prison, with the requirement to wear an ankle monitor and to register as a sex offender upon release. His trial and imprisonment, however, were based upon the lie of a fifteen-year old girl who was afraid of her mother finding out she was sexually active.
Banks was arrested in the summer of 2002. During class, he met Gibson in a remote corner of the school where they engaged in sexual activity, without having sexual intercourse. Afterward, they parted ways, on good terms, said Banks, and returned to class. However, Gibson, worried that her mother would discover that she was sexually active, told a classmate that she had been raped. They went to school authorities, and by the end of the day, Banks had been arrested.

The charges against Banks were two counts of forcible rape and kidnapping, and his bail was set for one million dollars. As his family was unable to pay this large amount, he waited for his trial in jail for a year. When it was time for him to go to trial, his lawyer told him that he would not get a fair trial: he was a black teenager and was over six feet tall, weighing over two hundred pounds, and the jury was likely to be all white. He pled no contest, avoiding a maximum of forty-one years in prison, but was sentenced to seven years, despite there being no evidence against him other than Gibson’s word. Steve Meister, former LA County sex crimes prosecutor, said that he wouldn’t have even filed a case against Banks. There was no DNA evidence, Gibson’s statements were inconsistent, and the classmate she had confided in about the rape admitted that Gibson later told her that she had lied.

Banks ended up serving only five years in prison, but was required to wear an ankle monitor and register as a sex offender. He appealed to the California Innocence Project to help him reverse the court’s ruling and clear his name, but there wasn’t enough evidence to prove his innocence. Then one day five years later, Gibson sent him a friend request on Facebook. He consulted a lawyer, and sent her a message asking why she was contacting him. She wanted to “let bygones be bygones,” Banks said. His lawyer set up a meeting with Gibson that they secretly recorded, and she admitted that Banks had never raped her. She also said that she would help him, but she didn’t want to have to pay back the 1.5 million dollars she received from the school for a lack of sufficient security.

With the help of the California Innocence Project, Banks went to court for the second time on May 24, 2012. The tape of Gibson’s confession provided enough evidence for Banks to be exonerated. “To have this finally be over with, to finally have my name cleared and have my life back and also reflect on everything I’ve been through,” said Banks. “It’s been a 10-year struggle, so I’m happy to be free now.”

The California Innocence Project, founded in 1999 at the California Western School of Law, helped Brian Banks when he thought there was no hope. Most recently, Brian Banks has signed with the Atlanta Falcons playing football again. You can read Brian’s story and the stories of others who have been wrongfully convicted at www.californiainnocenceproject.org.

What are your thoughts on this case?

How accurate is the breath test instrument on DUI arrests? What if the result is .10 or .11? Does that mean you are automatically guilty? What is the margin of error?

There are many things that can effect the breath test accuracy.  Let’s take a look at them one by one.

Contaminants

There are certain contaminants that can effect the accuracy of the breath instrument.  Acetone is one of those contaminants.   Acetone can be present on a person’s breath if they are diabetic or if they are fasting.  Exposure to certain paint thinners and chemical can also effect the breath instrument.   There are studies that show false readings as high as .40 for contaminates. (The legal limit is .08.)  DUI lawyers often see this in cases where people work around chemicals.

Breathing Irregularities

There are also certain breathing irregularities that can throw off the breath test by as much as 16 percent.  Holding your breath prior to the breath test can increase the alcohol reading, while hyperventilating can decrease the alcohol reading.  The temperature of your breath can effect the reading too, and the warmer  the breath, the higher the alcohol reading.  A fever can cause an elevated breath test as well, as can asthma, emphysema, or other such lung diseases.

Mouth Alcohol

If a person has alcohol present in their mouth, this can throw off the breath test result dramatically.  Alcohol can be caught in chewing tobacco and even in dentures or other dental work.  Mouth alcohol can also be a result of vomiting or belching, or a breath spray or mouthwash.

Keep in mind we are discussing the BAC instrument that DUI suspects blow into at the jail or police station.  The little portable instrument you blew into on the side of the road is not admissible.

A lot of times people think that a breath test result over .08 means that their case is over.  In reality there is a lot that a DUI lawyer can do, particularly with the help of a expert witness.

For more information, visit our webpage.  Steve Graham does DUI case in Spokane and the surrounding counties of eastern Washington.

 

Oliver Wendell Holmes once said that “detached reflection cannot be demanded in the presence of an uplifted knife.”  That is to say that people have to make split second decisions when they act in self-defense.  This is what Spokane plumber Gail Gerlach did when he saw the man stealing his Chevy Suburban turn his arm around like he was pointing something at him.

In hindsight, we now know that the man was unarmed. Washington law states “A person is entitled to act on appearances in defending himself, if that person believes in good faith and on reasonable grounds that he is in actual danger of great personal injury, although it afterwards might develop that the person was mistaken as to the extent of the danger. Actual danger is not necessary for a homicide to be justifiable.”  It is believable that Gail Gerlach saw a threatening gesture.  Gerlach’s wife also saw a gesture from a different angle.

Under the law of Washington State, it is not Gerlach’s job to prove self-defense. The prosecutor’s job is to disprove self-defense beyond a reasonable doubt.

The police are challenging that Mr. Gerlach could have seen the driver make such a gesture. The media reported that the detective said: “I was only able to see small portions of the front seat and believe it would not have been possible to see anybody’s actions as they turned around and shifted their arm over the top of the seat. If anything would have been visible of the driver, it would simply have been the top of his head sticking up over the top of the head rest.” However, is a person turns around to shoot, “over the seat” is exactly where his hand would be pointed.

Gail Gerlach’s supporters posted a photo online of the windows look like on a similar Suburban with factory tinted windows.

Apparently there wasn’t a consensus in the prosecutor’s office to charge. The Spokesman-Review quoted the elected prosecutor as saying “One police officer and one deputy prosecutor thought that it was a murder… The others ranged in opinion from manslaughter to no charges at all.”

If you can’t get a room full of prosecutors to agree that a crime was committed, how will you get 12 jurors agree to convict a man?

It seems to me that this charge is a waste of tax payers money.

For people interested in helping Gail Gerlach, please see his Facebook Support Page. I just made a small donation.

What do you think about this case? Have prosecutors typically charged police officers when they make poor judgment calls?

I-502 and marijuana decriminalization in Washington State has had a dramatic impact on the courts system for marijuana.  But what has changed in Washington State for the simple possession of small amounts of ecstasy (MDMA), cocaine, ketamine, LSD, or psilocybin?

Arrests continue for concert goers for even a small amount of those club drugs.  The possession of MDMA, ketamine, LSD and psilocybin in any amount is a felony punishable by a standard range of 0-6 months in jail and up to a $10,000 dollar fine.  As a criminal defense lawyer who works in Grant County, I have seen jail sentences up to 90 days even for individuals with no felony priors.  After I-502 passed last November, I wondered what the summer might bring for drug arrests in Grant County (specifically at the Gorge).  The concert season this summer kicked off with the Sasquatch! Music Festival, with three days of indie rock, alternative and hip hop.  When the court opened up on Tuesday morning (after the long weekend), there were numerous arrests for possession of such drugs as MDMA, ketamine, LSD and psilocybin.  When I was there I asked some people if the police were issuing citations for using marijuana in public (in infraction under I-502) but no one reported seeing any such cases.  Since such tickets don’t bring a risk of jail time, it is less likely for a criminal defense lawyer to be involved in such cases.

The police claim to have as a priority cases of possession with intent to deliver, or delivery of a controlled substance.  However, the people selling such drugs can be hard to catch, and the jail roster is made up mostly of simple possession cases.  At the Gorge, concert goers are often detained by the staff security.  Criminal defense lawyers often see reserve officers deployed, as well as fulltime commissioner law enforcement.  If there is any silver lining, it seems that by the time the charges make it to court, the officers’ memories are so poor that they don’t recall one case from the next.  The reports on these Grant County cases seem so rushed, that criminal defense lawyers are often able to pick the cases apart.

When I talked to some people that had been arrested for possession of drugs, it almost seemed like marijuana decriminalization in Grant County freed up the police to crack down further on instances involving MDMA, ketamine, LSD and psilocybin.  Should the legislature really make it a felony to possess even small amounts of such drugs?  It seems like the passing of I-502 was not motivated by any sense of libertarianism, nor of a sense that drug abuse should be addressed as a public health issue.  Rather I-502 was passed mostly out a desire to bring in more tax revenue.

For more info on drug cases in Grant County, see: //www.grahamdefense.com/Grant-County-Criminal-Lawyer.aspx

 

Because every criminal defense lawyer likes to see his name in print…

available online: //online.wsj.com/article/SB10001424127887324031404578481223036526686.html

Northwest Justice, a legal aid program in Washington State, announced a class for individuals going through or contemplating a divorce.

Guest post by Matthew Leach, Attorney at King Law Offices | North & South Carolina

The United States Supreme Court recently ruled on a drug sniffing dog case from Florida and the steps police can take to get probable cause for a search of a vehicle.[1]  To understand this recent decision, however, let’s examine some history.

 

In a 2005 Supreme Court case, the Court held “that a well-trained drug dog’s sniffing of the exterior of a car during a lawful traffic stop is not a search subject to the Fourth Amendment.”[2]  This is partly based on the lower expectation of privacy that people have in their vehicles compared to, say, their homes,[3] and the increased mobility of automobiles, making the disappearance and destruction of evidence a larger concern.[4]  The Supreme Court’s approach to Fourth Amendment protections for drug sniffs is relaxed because of the lack of legitimate interest in possessing contraband (i.e., illegal drugs), and a drug sniff by a dog is being aimed only at the detection of such contraband.[5]  Regardless, the warrantless “search” by the dog must still “be carried out in a reasonable manner.”[6]

 

It is this “reasonable manner” of the search by a police officer relying on a drug sniffing dog that was the subject of dispute in the recent Supreme Court case.

 

The case dates from 2006 where a Florida officer, William Wheetley, executed a traffic stop on Clayton Harris because his license plate was expired.[7]  The officer approached the driver and, after observing a nervous demeanor and an open beer can, asked for permission to search the truck.[8]  The truck driver denied him permission to conduct the search (a “consent” search).[9]  At that point, the officer got the drug-sniffing dog, Aldo, out of his patrol car and brought him to Mr. Harris’s truck.[10]  Aldo then “alerted” to the presence of drugs on the drive side door.[11]  Based upon this alert, the officer determined he had probable cause to search the vehicle and found ingredients to manufacture methamphetamine (“200 loose pseudoephedrine pills, 8,000 matches, a bottle of hydrochloric acid, two containers of antifreeze and a coffee filter full of iodine crystals”[12]),[13] which are not “drugs that could be sniffed.”[14]  Subsequently, “Harris was arrested and charged with possessing pseudoephedrine for use in manufacturing methamphetamine.”[15]

 

On appeal, Harris wanted the search tossed, claiming that the drug-sniffing dog did not give rise to probable cause to search the truck.[16]  Harris’s appeal, which was accepted by his state’s supreme court,[17] centered on the unreliability of drug-sniffing dogs.[18]  The Florida court wanted the police “to present training and certification records, field performance records, explanation of those records, and evidence concerning the dog handler’s experience and training.”[19]  The Florida court was concerned with the “growing body of evidence that dogs often make mistakes or are influenced by their handlers.”[20]

 

Indeed, in an interesting turn of events, the exact same officer pulled over Mr. Harris two months after the initial stop for a traffic infraction.[21]  Again, the officer deployed Aldo, who alerted to drugs in Mr. Harris’s car, again.[22]   This time, however, the officer’s search of the car turned up nothing.[23]

 

The Supreme Court, in a unanimous opinion authored by Justice Kagan, thought the Florida court demanded too much of police.[24]  The Court held that “courts should apply the same tests to dog sniffs they do when they look at other issues of whether police have probable cause to take an action.”[25]  This is a “totality of the circumstances” approach,[26] where the police are to consider “all the facts surrounding a dog’s alert, viewed through the lens of common sense… [and whether that] would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime… A sniff is up to snuff when it meets that test.”[27]

 

Defendants/Defense attorneys can still challenge a drug-sniffing dog’s search, however, by attacking the training methods of the dogs or that the certifications methods are too simple to attain.[28]

 

A companion case that is still to be decided by the US Supreme Court, though oral arguments have been made, centers on a drug sniffing dog’s detection at a person’s home, not automobile, and has caused greater concern for the Justices.[29]

 

The Fourth Amendment is an ever-evolving, complex area of American jurisprudence.  Criminal defense attorneys would be wise to stay tuned for the companion case to ensure they are best prepared in representing their clients in probable cause searches sparked by drug-sniffing dogs.  Criminal defendants would be wise to keep their criminal activities away from their automobiles.