580th Basic Law Enforcement Academy – February 15, 2005 through June 22, 2005
President:Christopher Littrell – Lynnwood Police Department
Best Overall:Christopher Littrell – Lynnwood Police Department
Best Academic:Christopher Littrell – Lynnwood Police Department
Best Firearms:Christopher Littrell – Lynnwood Police Department
Tac Officer:Officer Rich Peterson – Seattle Police Department
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581st Session, Basic Law Enforcement Academy, Spokane Police Academy
March 2, 2 005 through July 7, 2005
Highest Scholarship:Evan A. Logan – Spokane County Sheriff’s Office
Highest Mock Scenes:Franklin W. McLain – Kennewick Police Department
Outstanding Officer:Evan A. Logan – Spokane County Sheriff’s Office
Pistol Marksmanship:Jay E. Kernkamp, Colfax Police Department
august 2005 LED TABLE OF CONTENTS
2005 LEGISLATIVE UPDATE REVISITED...... 3
BRIEF NOTES FROM THE UNITED STATES SUPREME COURT...... 4
FEDERAL “CONTROLLED SUBSTANCES ACT” DOES NOT VIOLATE FEDERAL CONSTITUTION’S COMMERCE CLAUSE in its APPLICATION to citizens of california, which has a medical-use-of-marijuana law
Gonzales v. Raich, 125 S.Ct. 2195 (2005) ...... 4
CONVICTION IN FOREIGN COUNTRY DOES NOT COUNT AS A CONVICTION UNDER FEDERAL FELON-IN-POSSESSION-OF-FIREARM LAW
Small v. U.S., 125 S.Ct 1752 (2005) ...... 4
BRIEF NOTES FROM THE U.S. Court of Appeals for the 9TH circuit...... 6
NO FOURTH AMENDMENT VIOLATION OCCURRED IN RANDOM SELECTION OF AIRLINE PASSENGER FOR HANDHELD MAGNETOMETER WAND SCANNING
U.S. v. Marquez, 410 F.3d 612 (9th Cir. 2005) ...... 6
SIXTH AMENDMENT’S INITIATION-OF-CONTACT RESTRICTION IS NOT TRIGGERED BY A TRIBAL COURT ARRAIGNMENT
U.S. v. Charley, 396 F.3d 1074 (9th Cir. 2005) ...... 6
DOMESTIC DISTURBANCE FACTS (YELLING FROM INSIDE BY A POSSIBLE PERPETRATOR/VICTIM SUGGESTED TO OFFICER THAT THERE WAS POSSIBLE INJURY TO YELLER OR POSSIBLE DANGER TO OTHERS INSIDE) HELD TO BE “EMERGENCY” SUFFICIENT TO JUSTIFY WARRANTLESS ENTRY INTO HOME; ALSO, QUARLES’ OFFICER-SAFETY EXCEPTION TO MIRANDA IS APPLIED
U.S. v. Martinez, 406 F.3d 1160 (9th Cir. 2005) ...... 7
SAN JOSE OFFICERS ARE DENIED QUALIFIED IMMUNITY IN CIVIL RIGHTS CASE BECAUSE 1) THEY SEIZED MUCH MORE EVIDENCE DURING WARRANT SEARCHES THAN WAS “REASONABLE”; AND 2) THEY SHOT SOME DOGS DUE TO LACK OF A PRIOR REASONABLE PLAN FOR ENTRY INTO THE PERIMETER
San Jose Charter of the Hells Angles Motorcycle Club v. City of San Jose, 402 F.3d 962 (9th Cir. 2005) 8
BRIEF NOTES FROM THE Washington STATE Supreme Court...... 9
WHEN OFFICER HAS DISCRETION WHETHER TO MAKE CUSTODIAL ARREST (SUCH AS FOR DWLS), OFFICER MAY WAIT UNTIL AFTER MOTOR VEHICLE “SEARCH INCIDENT” TO EXERCISE THAT DISCRETION
State v. Pulfrey, ___ Wn.2d ___, 111 P.3d 1162 (2005) ...... 9
WASHINGTON SUPREME COURT REJECTS LEGISLATURE’S ATTEMPT TO MAKE RETROACTIVE ITS REVERSAL OF COURT’S 2002 INTERPRETATION IN ANDRESS OF SECOND DEGREE FELONY MURDER STATUTE
In Re Hinton, 153 Wn.2d 853 (2004)...... 9
Miranda WARNINGS WERE OK WITHOUT A FIFTH WARNING REGARDING THE “RIGHT TO STOP ANSWERING QUESTIONS AT ANY TIME”
In re Dwayne Anthony Woods, ___ Wn.2d ___, ___ P.3d ___ 2005 WL 1403994 (2005)...... 10
Washington STATE Court of Appeals...... 11
IDAHO LAW ON INTERSTATE FRESH PURSUIT JUSTIFIED WSP TROOPER’S PURSUIT AND SEIZURE OF DUI SUSPECT AT IDAHO HOSPITAL BASED ON REASONABLE SUSPICION; ALSO PROBABLE CAUSE JUSTIFIED SUBSEQUENT BLOOD TEST
In re Richie, ___ Wn. App. ___, ___ P.3d ___, 2005 WL 1330657 (Div. III, 2005) ...... 11
GAME AGENT’S APPROACH TO HOME VIA BACK DRIVEWAY WAS LAWFUL, AND HE HAD “OPEN VIEW” OF ELK CARCASS IN POACHING SUSPECT’S OPEN GARAGE; UNLAWFULNESS OF AGENT’S SUBSEQUENT WARRANTLESS ENTRY TO SEIZE CARCASS IS IRRELEVANT; AND MIRANDA WARNINGS WERE NOT REQUIRED FOR NON-CUSTODIAL QUESTIONING
State v. Posenjak, ___ Wn. App. ___, 111 P.3d 1206 (Div. III, 2005) ...... 14
ONE-PARTY CONSENT TAPE RECORDING OF VICTIM’S Oregon-TO-Washington CALL ADMISSIBLE BECAUSE CALL WAS MADE FROM Oregon, RECORDING OCCURRED IN Oregon, AND RECORDING WAS INSTIGATED EXCLUSIVELY BY AN Oregon OFFICER NOT ACTING IN CONCERT WITH WASHINGTON OFFICERS
State v. Fowler, ___ Wn. App. ___, 111 P.3d 1264 (Div. II, 2005) ...... 17
EVIDENCE OF “TAMPERING” AND OF “FURTHERANCE OF OTHER CRIME” HELD SUFFICIENT TO SUPPORT CONVICTION FOR FIRST DEGREE “DEFRAUDING OF PUBLIC UTILITY”
State v. Silva, ___ Wn. App. ___, 110 Wn. App. 830 (Div. I, 2005)...... 19
EVIDENCE THAT FLEEING SHOPLIFTER GRABBED STORE CLERK DURING VEHICULAR GETAWAY WAS SUFFICIENT TO SUPPORT CONVICTION FOR FIRST DEGREE ROBBERY
State v. Decker, ___ Wn. App. ___, 111 P.3d 286 (Div. I, 2005) ...... 21
BRIEF NOTES FROM THE Washington STATE Court of Appeals...... 23
LEWIS RULE APPLIES TO OFFICERS’ ACTIVATION OF PATROL CAR AUDIO-VIDEO RECORDING DEVICE – CHAPTER 9.73 DOES NOT REQUIRE SUPPRESSION BECAUSE STREET CONVERSATIONS ARE NOT “PRIVATE”
State v. Kelly, ___ Wn. App. ___, 111 P.3d 1213 (Div. I, 2005) ...... 23
SHORT-BARRELED-SHOTGUN LAW VIOLATED EVEN IF DEFENDANT DID NOT KNOW POSSESSION OF SUCH A GUN WAS ILLEGAL
State v. Williams, 125 Wn. App. 335 (Div. II, 2005) ...... 24
DEFENSE UNDER WASHINGTON’S MEDICAL MARIJUANA ACT HELD NOT MET BY FACTS OF CASE; ALSO, THE ACT IS HELD TO SUPERSEDE AND ABSOLUTELY PRECLUDE A COMMON LAW DEFENSE OF “MEDICAL NECESSITY”
State v. Butler, ___ Wn. App. ___, 109 P.3d 493 (Div. II, 2005)...... 24
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2005 WASHINGTON LEGISLATIVE UPDATE REVISITED
LED EDITORIAL INTRODUCTORY NOTE: After we published last month what we thought was the final part of a two-part 2005 Washington Legislative Update, we were made aware of another 2005 enactment of interest to law enforcement. In addition, we received an inquiry about one of the digested enactments suggesting that a little more explanation would be helpful. We will first revisit the previously digested enactment, and then we will provide information about the previously omitted enactment.
INCREASING PENALTIES FOR FAILING TO SECURE MOTOR VEHICLE LOAD
Chapter 431 (SHB 1478) Effective date: July 24, 2005
This enactment was digested in the July 2005 LED at page 15. In the July 2005 LED, we noted that the Legislature amended RCW 46.61.655 by adding a subsection (7) reading as follows:
(7)(a)(i) A person is guilty of failure to secure a load in the first degree if he or she negligently fails to secure a load or part of a load to his or her vehicle in compliance with subsection (1), (2), or (3) of this section and causes bodily injury to another.
(ii) Failure to secure a load in the first degree is a gross misdemeanor.
(b)(i) A person is guilty of failure to secure a load in the second degree if he or she negligently fails to secure a load or part of a load to his or her vehicle in compliance with subsection (1) or (2) of this section and causes damage to property of another.
(ii) Failure to secure a load in the second degree is a misdemeanor.
(c) A person who fails to secure a load or part of a load to his or her vehicle in compliance with subsection (1), (2), or (3) of this section is guilty of an infraction if such failure does not amount to a violation of (a) or (b) of this subsection.
To put this amendment in proper context, we include here the provisions of RCW 46.61.655 that continue without any change. Subsections (1) through (6) read as follows:
(1) No vehicle shall be driven or moved on any public highway unless such vehicle is so constructed or loaded as to prevent any of its load from dropping, sifting, leaking, or otherwise escaping therefrom, except that sand may be dropped for the purpose of securing traction. Any person operating a vehicle from which any glass or objects have fallen or escaped, which would constitute an obstruction or injure a vehicle or otherwise endanger travel upon such public highway shall immediately cause the public highway to be cleaned of all such glass or objects and shall pay any costs therefor.
(2) No person may operate on any public highway any vehicle with any load unless the load and such covering as required thereon by subsection (3) of this section is securely fastened to prevent the covering or load from becoming loose, detached, or in any manner a hazard to other users of the highway.
(3) Any vehicle operating on a paved public highway with a load of dirt, sand, or gravel susceptible to being dropped, spilled, leaked, or otherwise escaping therefrom shall be covered so as to prevent spillage. Covering of such loads is not required if six inches of freeboard is maintained within the bed.
(4) Any vehicle with deposits of mud, rocks, or other debris on the vehicle's body, fenders, frame, undercarriage, wheels, or tires shall be cleaned of such material before the operation of the vehicle on a paved public highway.
(5) The state patrol may make necessary rules to carry into effect the provisions of this section, applying such provisions to specific conditions and loads and prescribing means, methods, and practices to effectuate such provisions.
(6) Nothing in this section may be construed to prohibit a public maintenance vehicle from dropping sand on a highway to enhance traction, or sprinkling water or other substances to clean or maintain a highway.
VICTIM-WITNESS RIGHTS PREVIOUSLY PROVIDED TO OTHER CLASSES OF VICTIMS AND WITNESSES ARE EXTENDED TO DEPENDENT PERSONS AND VULNERABLE ADULTS
Chapter 381 (ESHB 2126) Effective date: July 24, 2005
This enactment adopts a new chapter in Title 7 RCW (the new chapter will be given a code number later this year by the Washington Code Reviser’s Office). The Act extends to “dependent persons” and “vulnerable adults,” as defined in the Act, essentially the same rights as are currently provided to crime victims, survivors and witnesses under chapter 7.69 RCW, and are currently provided to child victims and witnesses under chapter 7.69A RCW.
As with all of the other session laws digested in our 2005 Washington Legislative Update, the session law can be accessed by typing in the bill number in the appropriate box on the “bill information” page of the Washington Legislature at the following Internet address: [
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BRIEF NOTES FROM THE UNITED STATES SUPREME COURT
(1)FEDERAL “CONTROLLED SUBSTANCES ACT” DOES NOT VIOLATE FEDERAL CONSTITUTION’S COMMERCE CLAUSE in its APPLICATION to citizens of california, which has a medical-use-of-marijuana law– In Gonzales v. Raich, 125 S.Ct. 2195 (2005), the U.S. Supreme Court, in a 6-3 ruling, rejects the argument of users and growers of marijuana for medical purposes under the “California Compassionate Use Act.”
Two California residents argued unsuccessfully in this case that it violated the Federal Constitution’s Commerce Clause to apply the provisions of the federal “Controlled Substances Act” to criminalize manufacture, distribution or possession of marijuana in relation to intrastate activity covered by a state’s medical marijuana law.
Result: Reversal of decision of Ninth Circuit of the U.S. Court of Appeals and remand to the Ninth Circuit for entry of an order vacating the injunctive relief ordered by that court.
LED EDITORIAL COMMENT: This decision does not directly impact application of Washington’s Medical Marijuana law at RCW 69.51.010 through 69.50.080. Other states with variations on such laws are Alaska, Arizona, Colorado, Hawaii, Montana, Maine, Nevada, and Oregon.
(2)CONVICTION IN FOREIGN COUNTRY DOES NOT COUNT AS A CONVICTION UNDER FEDERAL FELON-IN-POSSESSION-OF-FIREARM LAW – In Small v. U.S., 125 S.Ct 1752 (2005), the U.S. Supreme Court rules 6-3 that the “convicted in any court” element of the federal felon-in-possession-of-firearm statute (18 U.S.C. § 922(g)(1) excludes convictions entered in foreign courts.
Result: Reversal of decision of Third Circuit Court of Appeals and of conviction of Gary Sherwood Small by Western U.S. District Court for Pennsylvania.
LED EDITORIAL COMMENT: The parallel issue under Washington’s firearms laws at chapter 9.41 RCW has never been addressed in a Washington appellate court decision. Our best guess is that the Washington Supreme Court would come to a similar result, and would interpret the phrase “federal or out-of-state” conviction as not including a conviction in a court of a foreign country. As always, we caution that views expressed in “comments” in the LED represent only our own thinking, not official views of the AGO or CJTC. We urge law enforcement agencies to consult with their own local prosecutors and legal advisors on all legal questions.
(3)COURT DECIDES NOT TO DECIDE YET WHETHER THE VIENNA CONVENTION ON CONSULAR RELATIONS CONFERS INDIVIDUALLY ENFORCEABLE RIGHTS – In Medellin v. Dretke, 125 S.Ct. 2088 (2005), the U.S. Supreme Court decides on procedural grounds that the Court will not address this year the issue of whether the international treaty known as the Vienna Convention on Consular Relations (Vienna Convention) creates rights that individual aliens (i.e., citizens of countries other than the U.S.) can enforce in the state and federal courts in the United States.
The Law Enforcement Digest has previously addressed the Vienna Convention treaty on several occasions, starting with a relatively comprehensive article in the May 1999 LED. Also, several cases addressing the Vienna Convention are noted at page 36 of the “Law Enforcement Legal Update” outline that is accessible via a link on the Criminal Justice Training Commission’s internet LED page. Also accessible via a link on the CJTC’s internet LED page is the U.S. State Department webpage providing detailed information on the Vienna Convention.
To date, the Washington Supreme Court has not addressed the Vienna Convention, but several Washington Court of Appeals’ decisions have addressed it. Those Washington Court of Appeals’ decisions, like federal court decisions around the U.S. to date, have held that the Vienna Convention protects governmental interests and does not give enforceable rights to individuals. Thus, those courts have held that the Vienna Convention does not provide a basis for suppression of statements given to police interrogators who have failed to give proper warnings of Vienna Convention rights following custodial arrest and before interrogation.
However, as noted in the Medellin Court’s discussion, the International Court of Justice (ICJ) recently (in 2004) held as to 54 consolidated cases involving Mexican citizens convicted in courts in the U.S. (including the case of Medellin), that rights under the Vienna Convention are individually enforceable. The ICJ’s power to dictate to the U.S. generally or to the U.S. courts specifically is unclear. But President George Bush responded to the ICJ decision in a February 2005 Memorandum that the U.S. state courts would respect the ICJ ruling. What the ICJ ruling, together with the President Bush Memorandum, mean for individual cases is not clear. The U.S. Supreme Court’s decision in Medellin frames, but does not answer, this question.
In Medellin, the U.S. Supreme Court had originally accepted review of the Texas capital murder, death penalty case with the intent of addressing, among other issues, whether a violation of the Vienna Convention could provide a basis for suppressing a suspect’s otherwise lawfully obtained statements to law enforcement officers. But after further consideration, a majority of the U.S. Supreme Court decides to dismiss review so that several other issues (not addressed in this LED entry) can first be sorted out in the state and lower federal courts.
Several separate opinions are issued in the Medellin case, each with some discussion of the individual enforceability issue under the Vienna Convention. This discussion gives little indication, however, how the U.S. Supreme Court will eventually come out on this very important issue.
Result: Dismissal of writ of review in the habeas corpus case of Jose Ernesto Medellin; this dismissal allows state and lower federal courts to address a variety of issues in Jose Ernesto Medellin’s case.
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BRIEF NOTES FROM THE U.S. Court of Appeals for the 9TH circuit
(1)NO FOURTH AMENDMENT VIOLATION OCCURRED IN RANDOM SELECTION OF AIRLINE PASSENGER FOR HANDHELD MAGNETOMETER WAND SCANNING – In U.S. v. Marquez, 410 F.3d 612 (9th Cir. 2005), the Ninth Circuit of the U.S. Court of Appeals rejects a cocaine-possession defendant’s argument that his Fourth Amendment rights were violated when he was randomly selected at the airport to be subjected to individual scanning by a handheld magnetometer.
The Court notes that airport screening of passengers and their carry-on luggage in order to detect weapons and explosives and deter potential passengers from carrying such items on board is reasonably necessary and not overly intrusive in light of the interests at stake. The Court also explains that airport screening procedures are administrative searches, not criminal investigatory searches, and are conducted for two reasons: first, to prevent passengers from carrying weapons or explosives onto the aircraft, and second, to deter passengers from even attempting to do so. The intensity and scope of these administrative searches are limited in light of those purposes.
The Court also explains that airport screening searches are valid only if they recognize the right of a person to avoid search by electing not to fly. However, in order for the deterrence goal of the screening procedures to be effective, the rule must be that a passenger must exercise his right to abandon air travel before beginning the screening procedures.
Finally, the Court emphasizes that a different analysis might apply and a different result might be reached if there were evidence suggesting that a passenger such as Marquez was selected for the individual screening other than on a purely random basis; there was no such evidence in this case.
Result: Affirmance of conviction of Sergio Ramon Marquez for possession with intent to distribute cocaine by the U.S. District Court for the Western District of Washington.
(2)SIXTH AMENDMENT’S INITIATION-OF-CONTACT RESTRICTION IS NOT TRIGGERED BY A TRIBAL COURT ARRAIGNMENT – In U.S. v. Charley, 396 F.3d 1074 (9th Cir. 2005), the 9th Circuit of the U.S. Court of Appeals rules that an FBI agent did not violate the Federal Sixth Amendment rights of a murder suspect by engaging in Mirandized questioning of her after she was arraigned in tribal court but before she was arraigned in federal district court. The relevant part of the Court’s analysis is as follow:
The Sixth Amendment right to counsel “does not attach until a prosecution is commenced.” In other words, it attaches ”at or after the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Here, Charley’s Sixth Amendment right to counsel was not triggered until she had her initial appearance in federal court on January 3, 2002. That Charlie was arraigned in tribal court on January 2, 2002, is irrelevant to determining when her Sixth Amendment right to counsel attached because we have squarely held that “the Sixth Amendment right to counsel does not apply in tribal court criminal proceedings.” United States v. Percy, 250 F.3d 720, 725 (9th Cir. 2001). The district court properly denied Charley’s motion to suppress her January 3, 2003 statements because Charley had not invoked her Fifth Amendment right to counsel, and her Sixth Amendment right to counsel had not yet attached when she made her request for an attorney before the tribal court. (Emphasis added)
Result: Affirmance of U.S. District Court conviction of Elvira Charley for three counts of fist degree murder.
LED EDITORIAL NOTE: For a detailed analysis of Fifth and Sixth Amendment initiation-of-contact rules, see the following article of the Criminal Justice Training Commission’s internet LED page: “’Initiation of contact’ rules under the Fifth and Sixth Amendments”.)