LEGAL UPDATE FOR WASHINGTON LAW ENFORCEMENT 2019 legal update final.pdf · CIVIL RIGHTS ACT CIVIL LIABILITY FOR EXCESSIVE FORCE: PLAINTIFF- ... Readers of this Legal Update are no

Legal Update - 1 November 2019

LEGAL UPDATE FOR WASHINGTON LAW ENFORCEMENT

Law Enforcement Officers: Thank you!

DECEMBER 2019

TABLE OF CONTENTS FOR DECEMBER 2019 LEGAL UPDATE CRIMINAL JUSTICE TRAINING COMMISSION’S “LAW ENFORCEMENT ONLINE TRAINING DIGEST” EDITIONS ARE CURRENT THROUGH OCTOBER 2019

UNITED STATES SUPREME COURT…………………….……………….……………….3 HIGH COURT JUSTICES DENY REVIEW OF NINTH CIRCUIT DECISION IN MARTIN V. CITY OF BOISE ADDRESSING HOMELESSNESS……………………………………3

NINTH CIRCUIT OF THE UNITED STATES COURT OF APPEALS…..……………….3 CIVIL RIGHTS ACT CIVIL LIABILITY ARISING FROM SEARCH WARRANT APPLICATION AND EXECUTION: (1) IN MARIJUANA GROW INVESTIGATION, SEARCH WARRANT THAT INCLUDED AUTHORITY TO SEARCH SEPARATE MOBILE HOME ON THE SUSPECT’S PROPERTY WAS NOT OVERBROAD; (2) PROBABLE CAUSE DID NOT EVAPORATE WHEN OFFICERS FOUND A NON-SUSPECT LIVING IN THE MOBILE HOME; (3) DETENTION OF 74-YEAR-OLD NON-SUSPECT FOR ONE HOUR DURING THE SEARCH WAS NOT UNREASONABLE; AND (4) OMISSIONS FROM AND MISSTATEMENTS IN THE SEARCH WARRANT AFFIDAVIT WERE NOT MATERIAL ON THE PROBABLE CAUSE QUESTION

Blight v. City of Manteca, __ F.3d __ , 2019 WL __ (9th Cir., December 11, 2019)……..3 CIVIL RIGHTS ACT CIVIL LIABILITY ARISING FROM DV INVESTIGATION: “STATE-CREATED DANGER DOCTRINE” WILL SUPPORT LAWSUIT IN CASES ARISING IN THE FUTURE WHERE OFFICERS EMBOLDEN AN ALLEGED ABUSER BY (1) DISCLOSING VICTIM’S CONFIDENTIAL REPORT AND BY MAKING DISPARAGING REMARKS ABOUT THE VICTIM IN THE PRESENCE OF THE SUSPECT, OR (2) GIVING PRAISE TO THE ABUSER IN A WAY THAT SUGGESTS THAT ABUSE WILL NOT BE PUNISHED Martinez v. City of Clovis, __ F.3d __ , __ 2019 WL __ (9th Cir., December 4, 2019)…10 CIVIL RIGHTS ACT CIVIL LIABILITY FOR EXCESSIVE FORCE: PLAINTIFF-MOTHER SHOULD HAVE BEEN ALLOWED TO TESTIFY ABOUT HER SON’S RECENT BEHAVIOR SHOWING SIGNS OF MENTAL HEALTH PROBLEMS EVEN IF THE OFFICER WHO SHOT THE SON DID NOT KNOW OF THE MOTHER’S OBSERVATIONS AT THE POINT WHEN THE OFFICER SHOT THE SON

https://www.scotusblog.com/2019/12/justices-turn-aside-major-case-on-homelessness-law/



Crawford v. City of Bakersfield, __ F.3d _ , 2019 WL _ (9th Cir., Dec. 16, 2019)………13 CIVIL RIGHTS ACT CIVIL LIABILITY FOR EXCESSIVE FORCE: NO QUALIFIED IMMUNITY FOR OFFICER IN LIGHT OF PLAINTIFF’S ALLEGATION THAT HE WAS NOT RESISTING ARREST WHEN OFFICER PLACED PLAINTIFF IN A “CHOKEHOLD” (MORE ACCURATELY CHARACTERIZED AS A “LATERAL VASCULAR NECK RESTRAINT”) Tuuamalemalo v. Greene, __ F.3d __, 2019 WL __ (9th Cir., December 24, 2019)……14 WASHINGTON STATE SUPREME COURT………………………………………………15 RCW 46.61.305(2): DRIVER DID NOT MEET TURN SIGNAL REQUIREMENT BY SIGNALING BEFORE MOVING INTO LEFT-TURN-ONLY LANE AND NOT REACTIVATING LEFT TURN SIGNAL BEFORE TURNING LEFT WHEN STOPLIGHT TURNED GREEN; OFFICER’S STOP OF VEHICLE HELD JUSTIFIED State v. Brown, ___ Wn.2d ___ , 2019 WL ___ (December 26, 2019)………………….15 REMINDER RE RESEARCH TOOL: ELECTRONIC SURVEILLANCE AND DIGITAL EVIDENCE MANUAL FROM THE KING COUNTY PROSECUTOR’S OFFICE……..15 WASHINGTON STATE COURT OF APPEALS…………………………………………..18 THREE PRIMARY RULINGS UNDER PRIVACY ACT, CHAPTER 9.73 RCW: (1) PROBABLE CAUSE AS TO THE TARGET IN APPLICATION TO SUPERIOR COURT FOR RECORDING RELATING TO FELONY CRIMES SUPPORTS RECORDING OF OTHERS, INCLUDING DEFENDANT, WHO ALSO BECOME INVOLVED IN CONVERSATIONS; (2) MINOR MISTAKES IN FACTUAL ALLEGATIONS SUPPORTING APPLICATION FOR RECORDING DO NOT UNDERMINE SUPERIOR COURT’S PROBABLE CAUSE FINDING; (3) APPLICATION FOR RECORDING WAS SUFFICIENT, IN LIGHT OF THE CIRCUMSTANCES, IN DESCRIBING THE PLACE WHERE THE RECORDING WOULD OCCUR State v. J.K.T., ___ Wn. App. 2d ___ , 2019 WL ___ (Div. I, December 30, 2019)…….18 PARENTAL USE OF FORCE IN DISCIPLINE OF CHILD: FATHER’S FACE SLAP OF 11-YEAR-OLD SON FOR TALKING BACK MAY OR MAY NOT HAVE BEEN JUSTIFIED UNDER RCW 9A.16.100, BUT TRIAL COURT ERRED IN CONCLUDING THAT FATHER’S SLAP WAS PER SE NOT JUSTIFIED Ugolini v. Ugolini, ___ Wn. App. 2d ___ (Div. III, December 17, 2019)………………….26 SEXSOMNIA DEFENSE: TRIAL COURT LAWFULLY PRECLUDED DEFENDANT IN CHILD MOLESTATION CASE FROM PRESENTING EXPERT TESTIMONY ABOUT SEXSOMNIA WHERE THE EXPERT COULD NOT DETERMINE IF DEFENDANT SUFFERED FROM THE CONDITION State v. Pratt, ___ Wn. App. 2d ___ , 2019 WL ___ (Div. II, December 17, 2019)…….28


BRIEF NOTES REGARDING DECEMBER 2019 UNPUBLISHED WASHINGTON COURT OF APPEALS OPINIONS ON SELECT LAW ENFORCEMENT ISSUES…………………………………………………………………………………………29

NEXT MONTH…………………………………………………………………………………….….31

*********************************

CRIMINAL JUSTICE TRAINING COMMISSION’S “LAW ENFORCEMENT ONLINE TRAINING DIGEST” EDITIONS ARE CURRENT THROUGH OCTOBER 2019

Readers of this Legal Update are no doubt aware that the Law Enforcement Digest Online Training, which was introduced to the Criminal Justice Training Commission’s Law Enforcement Digest page with the February 2018 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 recent court rulings are summarized, with emphasis placed on the practical application 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 two additional Washington State prosecutor and law enforcement case law reviews and references (one of which is this Legal Update). LED Online Training editions were recently added on the CJTC LED web page, making the monthly online publication available through the October 2018 edition.

*********************************

UNITED STATES SUPREME COURT

HIGH COURT JUSTICES DENY REVIEW OF NINTH CIRCUIT DECISION IN MARTIN V. CITY OF BOISE ADDRESSING HOMELESSNESS On December 16, 2019, the U.S. Supreme Court announced that the Court will not review the Ninth Circuit Court of Appeals decision in Martin v. City of Boise, 920 F.3d 584 (9th Cir., April 1, 2019). In Martin, the Ninth Circuit ruled that the Eighth Amendment’s prohibition of cruel and unusual punishment precludes, at all times when public shelter is not available, enforcement of City of Boise ordinance prohibiting camping/sleeping on public property. Denial of review by the U.S. Supreme Court does not necessarily mean that the Supreme Court agrees with a decision, but because the State of Washington is in the Ninth Circuit, cities and counties in Washington and other states in the Ninth Circuit will need to follow Martin until such time, if ever, that the U.S. Supreme Court addresses the issue that the Ninth Circuit addressed in Martin.

*********************************

NINTH CIRCUIT OF THE UNITED STATES COURT OF APPEALS

CIVIL RIGHTS ACT CIVIL LIABILITY ARISING FROM SEARCH WARRANT APPLICATION AND EXECUTION: (1) IN MARIJUANA GROW INVESTIGATION, SEARCH WARRANT THAT INCLUDED AUTHORITY TO SEARCH SEPARATE MOBILE HOME ON THE SUSPECT’S PROPERTY WAS NOT OVERBROAD; (2) PROBABLE CAUSE DID NOT EVAPORATE WHEN OFFICERS FOUND A NON-SUSPECT LIVING IN THE MOBILE HOME;




(3) DETENTION OF 74-YEAR-OLD NON-SUSPECT FOR ONE HOUR DURING THE SEARCH WAS NOT UNREASONABLE; AND (4) OMISSIONS FROM AND MISSTATEMENTS IN THE SEARCH WARRANT AFFIDAVIT WERE NOT MATERIAL ON THE PROBABLE CAUSE QUESTION

Blight v. City of Manteca, ___ F.3d ___ , 2019 WL ___ (9th Cir., December 11, 2019) Facts: (Excerpted from Ninth Circuit opinion) Investigation and search warrant application process

In September 2014, Defendants Armando Garcia and Ian Osborn, detectives with the Manteca Police Department, met with a confidential informant who had information on an illegal marijuana operation run by Marlin Lee Ford on his 4.26-acre rural property in Stockton, California. The informant had provided [Detective Garcia] with truthful and reliable information on other marijuana operations in the past. The informant was not paid for the information, but there was a leniency arrangement related to whether other conduct would be treated as felonies or misdemeanors if the informant provided the Government information helpful to further drug investigations. The informant provided the detectives with extensive firsthand knowledge of Ford’s operation: the informant had known Ford for more than ten years from the informant’s activities in the marijuana industry; the informant had helped Ford grow and process marijuana on Ford’s property; the informant knew where to find Ford’s property and could describe the property in detail; and the informant said there were guns and large dogs on the property. Detective Garcia checked a private database to which the Manteca Police Department subscribes and motor vehicle records to corroborate that Ford lived at the property the informant had described, which was located at 5858 E. Carpenter Road. Detectives Garcia and Osborn drove with the informant to the property. The informant identified 5858 E. Carpenter Road as the correct property. [Detective Garcia] showed the informant Ford’s DMV photo, and the informant identified Ford. [Court’s footnote: Detectives Garcia and Osborne also drove to the property a second time without the informant.]

From the road, Garcia observed a long driveway leading from the street to the property, a locked gate at the start of the driveway, and a tall fence surrounding the property. The fence extended up to ten feet high with an extension made of ad hoc materials [i.e., makeshift extensions], and it enclosed the entire property. Osborn testified that, in his training and experience, the character of the fence and its ad hoc extension were suggestive of an illegal marijuana grow. The detectives could not see the interior of the property because of the fence, but someone in the car opened Google Maps on his or her cell phone and brought up an aerial image of the property. The informant identified the field where the marijuana was being grown and two residences. The informant explained that Ford and his family lived in the main house and Nicolas Serrano, who helped Ford with the marijuana operation, lived in the mobile home. It is disputed whether the informant told the detectives that Joanne and Dallas Blight, Ford’s mother and stepfather, also lived on the property. But


resolving that dispute in the light most favorable to Blight, the informant told [Detective Garcia] that the Blights lived somewhere on the property. Detective Garcia filled out an application for a warrant to search Ford’s property. He attached to the application a Google Maps aerial view of the property, which he noted was consistent with the informant’s description that there were two modular homes on the property. The search warrant affidavit stated that the informant had told Garcia that Ford, his wife, and two adult children lived in one of the modular homes, and that Serrano lived in the other one. In the affidavit, Garcia explained that, in his knowledge, training, and experience, marijuana grown outside will typically be harvested and processed in garages or residences to avoid police detection, and that other types of evidence related to marijuana cultivation and sales also often can be found in residences. The premises to be searched included the “two modular homes, chicken coops and a small barn and various outbuildings.” A California superior court judge met with Garcia for about thirty minutes, reviewed the warrant application, and issued the warrant. Detective Garcia also requested and gained approval for SWAT officers to assist the police officers with executing the warrant because of the circumstances of the large property, its fence and gate fortification, and the expected presence of dogs and firearms.

Execution of the search warrant

At about 7:00 am on October 23, 2014, Manteca police and SWAT officers executed the search warrant. SWAT officers drove down the driveway in two armored vehicles and breached the locked gate. Once on the property, SWAT officers made announcements over the PA system for the occupants to exit the residences. Serrano left the main house, followed by his two children; Serrano was promptly placed under arrest. Serrano’s wife was not on the property at the beginning of the search, but she drove up to the driveway soon after the search began. She told Detective Garcia that an elderly woman, Joanne Blight, was inside the mobile home. [Court’s footnote 4: Joanne Blight was 74 years old and had hearing problems at the time of the search.]

SWAT officers again made announcements over the PA system, and also at the front door of the mobile home ordering Blight to exit. After there were six minutes with no response, SWAT officers breached the mobile home’s front door with a ram. After initially retreating to a back room, Blight exited her home three minutes after the officers breached the front door. Once Blight was outside, officers told her that if she did not get into the police car she would be handcuffed. Blight got into the police car, and officers drove her to the street for the duration of the search. Blight was never physically searched or handcuffed. The dispatch transcription log recorded the total time of Blight’s detention as 20 to 30 minutes; Blight remembers being detained for almost an hour. The police recovered 23 pounds of marijuana, 8 marijuana plants, 134 pounds of processed marijuana, 251 grams of loose marijuana shake, 78 grams of marijuana buds,


measurement scales, currency, and 27 rounds of ammunition from various parts of the property. The police did not recover any evidence or contraband from the mobile home. It later became known that the Blights had lived in and owned the mobile home since 1997. The mobile home had a dwelling use permit and an assigned address of 5846 E. Carpenter Road, but the land on which the mobile home was sited had the parcel’s address of 5858 E. Carpenter Road. Ford owns the property and lived with his immediate family in the main house from 1996 until 2012 but did not live there at the time of the search. Serrano lived in the main house from 2012 through the time of the search to help maintain the property for Ford.

[Some footnotes omitted; some paragraphing revised for readability; subheadings added] Proceedings below: Ms. Blight filed a Civil Rights Act lawsuit in federal district court against individual law enforcement officers and their employer. The district court granted the summary judgment motion of the defendant officers and their employer. ISSUES AND RULINGS: 1. Plaintiff alleges that the search warrant to investigate an illegal marijuana operation was overbroad because there was no probable cause to search her mobile home, which was separate from the suspect’s main house and had a separate address. The search warrant affidavit establishes the confidential informant’s reliability and establishes the probability that evidence or contraband related to a marijuana grow operation would be found in residences on the property Does the affidavit establish probable cause to issue a warrant authorizing a search of the entire property, including the mobile home, and therefore is the warrant not overbroad? (ANSWER BY NINTH CIRCUIT: Yes, the affidavit establishes probable cause to search the mobile home) 2. Did the officers act reasonably when they continued to search plaintiff’s mobile home once they discovered that the named suspect did not live in the home? (ANSWER BY NINTH CIRCUIT:. Yes, because (A) probable cause to search the mobile home did not depend on any suspect living there, and (B) officers could still reasonably believe that the entire property was under the suspect’s common control, regardless of whether he was on the property at the time of the search, and regardless of who was found in the mobile home) 3. Was the duration of the detention of plaintiff Blight reasonable under the Fourth Amendment when considering her age (74), the lack of evidence linking her to the marijuana operation, and the length of time of the detention? (ANSWER BY NINTH CIRCUIT: Yes, because (A) the search warrant gave officers the categorical authority to detain plaintiff, the occupant of the mobile home at the time of the search; and (B) the officers also did not detain plaintiff in an unreasonable manner, and her detention of no more than one hour was not an unreasonable length of time given the circumstances) 4. Was the search warrant prejudicially tainted by, individually or in some combination, five allegedly deliberate or reckless omissions in the search warrant affidavit (see the description of the relevant facts on this issue below in the Analysis section of this entry)? (ANSWER BY NINTH CIRCUIT: No, because none of the alleged omissions in the supporting affidavit were material to the issuing judge’s probable cause determination; i.e., probable cause is established even if the omitted factual allegations are considered)


Result: Affirmance of U.S. District Court (Eastern District of California) order granting summary judgment to the individual officers and the City of Manteca Police Department. ANALYSIS: (Excerpted from Ninth Circuit opinion)

1. Overbreadth issue: The affidavit provided probable cause to search the mobile home

To be reasonable under the Fourth Amendment, a search warrant must not be overbroad; its breadth must be limited to the scope of the probable cause on which the warrant was based. To determine whether a warrant was overbroad, we review, with deference, whether the issuing judge had a substantial basis to conclude that the affidavit supporting the search warrant established probable cause. Probable cause “is not a high bar.” A search warrant affidavit will demonstrate probable cause “if, under the totality of the circumstances, it reveals a fair probability that contraband or evidence of a crime will be found in a particular place.” . . . As a starting point, the issuing judge relied heavily on Detective Garcia’s description of the statements that the informant made to him. This reliance was entirely reasonable because the issuing judge could reasonably find the informant to be trustworthy under a totality-of-the circumstances analysis. Notably, the informant had given reliable information to law enforcement before, and the information the informant provided in this case included detailed, firsthand knowledge of Ford’s drug operation. The issuing judge could also reasonably rely on Detective Garcia’s opinions because of Garcia’s extensive experience in narcotics-related investigations and searches. When a structure contains two residences or two residences share a lot, there must be probable cause to search each. But in United States v. Alexander, 761 F.2d 1294, 1301 (9th Cir. 1985), we held that a warrant authorizing the search of an entire ranch was not overbroad, even though there were multiple dwellings on the ranch, because the entire property was under the suspect’s control. We explained that “a warrant is valid when it authorizes the search of a street address with several dwellings if the defendants are in control of the whole premises, if the dwellings are occupied in common, or if the entire property is suspect.” Here, there was a substantial basis for the issuing judge to believe Ford was in control of the whole premises. The informant told the detectives Ford owned the entire property and said Serrano lived in the mobile home for the purpose of helping Ford with his drug operation. Moreover, the entire property was enclosed within one fence and there was a concrete walkway connecting the two homes. There was also a substantial basis for the issuing judge to believe the entire property was suspect. The informant told the detectives the marijuana was grown outside and then processed in the buildings on the property. Detective Garcia explained in the search warrant affidavit that, in his experience, when marijuana is grown outside,

processed marijuana and other evidence will usually be found inside the residences and

buildings on the property.

The issuing judge was also entitled to “draw reasonable inferences about where evidence is likely to be kept, based on the nature of the evidence and the type of


offense.” Here, the issuing judge could reasonably infer that evidence of drug dealing would likely be found in both Ford’s residence and what was believed to be his assistant Serrano’s residence, thus making both the main house and the mobile home suspect. . . . .

2. PC to search the mobile home did not evaporate when officers found Blight living there

Officer authority to search property listed in a search warrant is not unlimited. If officers know or should know there is a risk that they are searching a residence that was erroneously included in a search warrant, then they must stop the search as soon as they are “put on notice” of that risk. But here the officers acted reasonably when they continued to search Blight’s mobile home because the probable cause to search the mobile home did not depend on Serrano living there. Instead, the officers had probable cause to continue the search because they could still reasonably believe that the entire property was suspect and that the property was still under Ford’s common control, regardless of whether he was on the property at the time of the search, and regardless of who was found in the mobile home.

3. The duration and manner of the detention was not unreasonable under the 4 th Amendment

Officers have categorical authority to detain incident to a search. Muehler v. Mena, 544 U.S. 93, 98 (2005). A detention for the duration of a search is generally reasonable when a warrant exists to search the residence and an occupant is inside the residence when the search begins. The detention may be unreasonable if “the detention itself is improper or because it is carried out in an unreasonable manner.” The officers had a warrant to search the mobile home. Thus, they had categorical authority to detain Blight, the occupant of the mobile home at the time of the search. The reasons for such a detention are particularly applicable in the context of a narcotics search because there is a heightened risk that an occupant could destroy evidence. And, as explained above, their probable cause to search the mobile home was not eliminated at any point after they began the search, and thus their authority to detain Blight pursuant to that search was never extinguished. The officers also did not detain Blight in an unreasonable manner. Although she was elderly, her age does not make the detention per se unreasonable. Old age customarily and traditionally earns a measure of respect from others, but old age cannot be seen to be a “pass” against government investigation when the government has probable cause to believe that an older person’s property may yield evidence of crime and when the manner of detention is reasonable under the circumstances. Turning to examine how Blight herself was treated, we observe that Blight was never personally searched or interrogated and that she was detained for the duration of the search – no longer than one hour – which is not an unreasonable length of time given the circumstances. For all of these reasons, the detention was reasonable under the Fourth Amendment.

4. No omissions from or misstatements in the affidavit were material on the PC issue


To make out a claim for judicial deception on summary judgment, the plaintiff must make a substantial showing that the defendant made a deliberate or reckless omission that was material to the finding of probable cause. Chism v. Washington State, 661 F.3d 380, 386 (9th Cir. 2011). “Omissions or misstatements resulting from negligence or good faith mistakes will not invalidate an affidavit which on its face establishes probable cause.”

1. Assertion that no promises or inducements were made to informant The affidavit stated that no promises or inducements were made to the informant, but the informant testified that he or she was “promised” a reduction of prior felony convictions to misdemeanors if he or she provided information helpful to further drug investigations. Any potential discrepancy here is immaterial to the probable cause determination because, even if the informant had been promised leniency, there is no reason to think in this case that such a promise created an incentive for the informant to provide inaccurate or unreliable information, and there were sufficient indicia in the search warrant affidavit that the informant was credible.

2. Omission of information that the Blights lived on the property The affidavit did not mention that the Blights lived on the property, but the informant had testified that he or she told that to the detectives. Even if the warrant had included that information, the issuing judge would still have had a reasonable basis to find probable cause to search the mobile home, which was on property controlled by Ford and that was being used to grow and process marijuana. 3. Failure to more thoroughly research suspect Ford’s legal relationship to the property

The affidavit stated that Detective Garcia had located Ford “living” at 5858 E. Carpenter Road through a “law enforcement database,” but Blight argues that Garcia had failed to verify whether Ford was an owner, possessor, or renter of the property. DMV records and the database subscribed to by the Manteca Police Department reasonably constitute law enforcement databases and it was not necessary to determine with greater precision Ford’s legal relationship to the property before representing that he lived there.

4. Omission of information that suspect Ford owned a second home elsewhere The affidavit did not mention that Ford owned a second home in a different city. This omission was immaterial because a second home is not inconsistent with a marijuana operation and additional residence in Stockton. A criminal, like anyone else, can own or control more than one property.

5. Omission of information that the mobile home had its own address The affidavit stated that the entire property to be searched was located at 5858 E. Carpenter Road, but the Blights’ mobile home, although sited on the 5858 E. Carpenter Road parcel, had its own address of 5846 E. Carpenter Road. Even if the affidavit had included the two addresses, it would not have affected the probable cause determination. The issuing judge knew there were two homes on the property, and a separate address would not have been inconsistent with Serrano also living in the


mobile home and the fair probability that evidence of crime or contraband would be found inside.

[Subheadings added; most citations omitted; footnotes omitted] LEGAL UPDATE EDITORIAL COMMENT: On the final issue regarding alleged misstatements and omissions from the search warrant affidavit, civil liability as well as suppression of evidence (and disciplinary actions, criminal prosecution, and embarrassment of the investigating agency) can result from egregious material misstatements or omissions in affidavits. I do not see anything egregious in the omissions in the Blight case, and neither did the Ninth Circuit panel. However, best practice of course is to include all information on probable cause that seems even only arguably material to the probable cause issue. Also, best practice is to scrutinize affidavits for boilerplate allegations that do not fit the particular case. For instance, officers should not use the boilerplate affidavit statement that “no promises or inducements have been made” to an informant when in fact, as in this case, promises or inducements have been made. It is also a bit troubling to me that the affidavit did not mention that the Blights lived on the property if, as alleged, the investigators knew that. CIVIL RIGHTS ACT CIVIL LIABILITY ARISING FROM DV INVESTIGATION: “STATE-CREATED DANGER DOCTRINE” WILL SUPPORT LAWSUIT IN CASES ARISING IN THE FUTURE WHERE OFFICERS EMBOLDEN AN ALLEGED ABUSER BY (1) DISCLOSING VICTIM’S CONFIDENTIAL REPORT AND BY MAKING DISPARAGING REMARKS ABOUT THE VICTIM IN THE PRESENCE OF THE SUSPECT, OR (2) GIVING PRAISE TO THE ABUSER IN A WAY THAT SUGGESTS THAT ABUSE WILL NOT BE PUNISHED

In Martinez v. City of Clovis, ___ F.3d ___ , ___ WL ___ (9th Cir., December 4, 2019), a three-judge panel of the Ninth Circuit rules that because prior case law was not clearly established, therefore, the government civil defendants in this case are entitled to qualified immunity. However, the panel gives notice that, in closely similar factual circumstances arising in the future, the “state-created danger doctrine” under the constitutional Due Process Clause will apply, and qualified immunity will be denied. Thus, Civil Right Act liability may be imposed where: (A) an officer (1) reveals to the abuser a domestic violence complaint made by a victim to the officer in confidence, and (2) simultaneously makes disparaging comments about the victim in a manner that reasonably emboldens the abuser to continue abusing the victim with impunity; OR (B) an officer praises an abuser in the abuser’s presence after the abuser has been protected from arrest, in a manner that communicates to the abuser that the abuser may continue abusing the victim with impunity. The Ninth Circuit panel’s description of the facts is quite lengthy and complicated, and readers of the Legal Update may wish to go to the Ninth Circuit website to get the full description. Very briefly, the facts are as follows. Clovis (CA) PD officers responded to a DV report. A fellow Clovis PD officer, Kyle Pennington (already on forced leave due a previous DV complaint with a different alleged victim) had been accused of assault in a 911 call by the alleged victim, Ms. Martinez. Officer Kristina


Hershberger talked to Ms. Martinez and apparently gave her some assurance of confidentiality as to her accusations of a past incident of abuse by her boyfriend, Officer Pennington. Ms. Martinez did not want to talk to Officer Hershberger about what had happened that day. Then Officer Hershberger disclosed the fact of the accusations of past abuse to the alleged DV assailant, Officer Pennington, and disparaged Ms. Martinez by asking Officer Pennington what he was doing “dating a girl like” Ms. Martinez, and telling Officer Pennington, that Ms. Martinez was not “the right girl” for him. Ms. Martinez heard Officer Hershberger mention to Officer Pennington that Ms. Martinez had reported the previous DV incident. Ms. Martinez then essentially recanted her accusations, and the officers took no action. That evening, Officer Pennington physically abused Ms. Martinez while calling her a “leaky faucet.” About a month later, officers were dispatched in response to a call from neighbors regarding abuse of Ms. Martinez by her still-boyfriend, Officer Pennington. Ms. Martinez initially whispered to Officer Angela Yambupah a limited confirmation of the report of physical abuse. Officer Yambupah concluded from observation of many indicators of physical abuse (red cheek, scrapes on knees, manicured fingernail that was broken and bleeding, a torn shirt and bruising on the arms) that the officers should arrest Officer Pennington for assault. However, Sergeant Fred Sanders (later not able to give a deposition due to dementia) ordered Office Yambupah not to arrest Officer Pennington and to instead let Clovis PD take care of things. In the presence of the accused domestic abuser (Pennington), Sergeant Sanders declared that the accused, Officer Pennington, and his father (also a Clovis PD officer) were “good people.” Within 24 hours after officers left, Officer Pennington beat and sexually assaulted Martinez. Officer Pennington was arrested shortly after that attack, and a criminal protective order was issued. Ms. Martinez subsequently filed a Civil Rights Act lawsuit against a number of officers involved in the two prior contacts and against Clovis PD. A district court judge granted summary judgment to the government defendants. The Ninth Circuit panel affirms the district court ruling based on the qualified immunity standard that grants immunity for constitutional violations where case law had not established the legal standard for closely similar facts at the time of the government actions. But the Ninth Circuit’s ruling is a don’t-do-this-again ruling. LEGAL ANALYSIS BY NINTH CIRCUIT PANEL State-created Danger Doctrine under the federal constitution’s Due Process Clause

The Martinez Opinion explains that, while the general rule is that the Due Process protections of the federal constitution do not impose a duty on the State to protect individuals from third parties, there are two exceptions to the general rule: (1) where there is a special relationship between the victim and the State (no such relationship was briefed in this case); and (2) where the State affirmatively created a known or obvious foreseeable danger which the victim would not have otherwise faced, and the State acted with deliberate indifference to the consequences.

The focus in Martinez is on whether the government actors did anything that significantly increased the danger to the victim from the abuser, Officer Pennington. The Court concludes that the government actors did this is two different ways.


The Martinez Opinion explains as follows the panel’s conclusion that in the first DV response, Officer Hershberger increased the danger for purposes of the State-created danger doctrine:

[T]he record also reveals that Hershberger told Pennington about Martinez’s testimony relating to his prior abuse, and also stated that Martinez was not “the right girl” for him. A reasonable jury could find that Hershberger’s disclosure provoked Pennington, and that her disparaging comments [about the victim] emboldened Pennington to believe that he could further abuse Martinez, including by retaliating against her for her testimony [i.e., report to the officer], with impunity. The causal link between Hershberger’s affirmative conduct and the abuse Martinez suffered that night is supported by Martinez’s testimony that Pennington asked Martinez what she had told the officer while he was hitting her. That Martinez was already in danger from Pennington does not obviate a state-created danger when the state actor enhanced the risks. . . . Because a reasonable jury could infer that Martinez was placed in greater danger after Hershberger disclosed Martinez’s complaint and made comments to Pennington that conveyed contempt for Martinez, the first requirement of the state-created danger doctrine is satisfied.

[Citation omitted]

The Martinez Opinion next explains as follows the panel’s conclusion that in the second DV response, Sergeant Sanders also increased the danger:

[T]he record contains evidence of more than just Sanders’s order not to arrest Pennington. In instructing [Officer Yambupah] not to arrest Pennington, which he did in Pennington’s presence, Sanders also expressed that the Penningtons were “good people.” Sanders spoke positively about the Penningtons against the backdrop that everyone involved, including Sanders, knew that Pennington and his father were police officers. While hearing Sanders speak positively about the Penningtons, Martinez also “heard Sanders telling [Yambupah] that, you know, ‘We’re not going to arrest him. We’re just going to turn it over to Clovis PD,’ whatever.” Viewing the record in the light most favorable to Martinez, a jury could reasonably find that Sanders’s positive remarks about the Penningtons placed Martinez in greater danger. The positive remarks were communicated against the backdrop that Sanders knew that Pennington was an officer and that there was probable cause to arrest – which the jury could infer Pennington, as a police officer, understood. A reasonable jury could find that Pennington felt emboldened to continue his abuse with impunity. In fact, the following day, Pennington abused Martinez yet again. Under these circumstances, the first requirement of the state-created danger doctrine is satisfied.

[Footnotes omitted] Qualified Immunity The Martinez Opinion provides lengthy analysis of whether the standard of qualified immunity that protects government actors from Civil Rights Act liability applies in this case. The Court notes that qualified immunity applies unless case law addressing closely similar facts had clearly established – at the time of the government conduct at issue – that such conduct violates the constitution. The Martinez Opinion concludes that no precedent was close enough on its


facts at the time of the officer’s actions to impose liability. But the Opinion declares as follows that if a closely similar fact pattern arises in the future, qualified immunity will be denied to the government actors:

[Officer] Hershberger and [Sergeant Sanders] are entitled to qualified immunity because the due process right conferred in the context before us was not clearly established. Although the application of the state-created danger doctrine to this context was not apparent to every reasonable officer at the time the conduct occurred, we now establish the contours of the due process protections afforded victims of domestic violence in situations like this one. . . . We hold today that the state-created danger doctrine applies when an officer reveals a domestic violence complaint made in confidence to an abuser while simultaneously making disparaging comments about the victim in a manner that reasonably emboldens the abuser to continue abusing the victim with impunity. Similarly, we hold that the state-created danger doctrine applies when an officer praises an abuser in the abuser’s presence after the abuser has been protected from arrest, in a manner that communicates to the abuser that the abuser may continue abusing the victim with impunity. [Court’s footnote 19: Although the failure to arrest does not itself give rise to a state-created danger, it may, as here, inform the “manner” in which an officer’s positive remarks “communicates to the abuser that the abuser may continue abusing the victim with impunity.”] Going forward, the law in this circuit will be clearly established that such conduct is unconstitutional.

[Paragraphing revised for readability] CIVIL RIGHTS ACT CIVIL LIABILITY FOR EXCESSIVE FORCE: PLAINTIFF-MOTHER SHOULD HAVE BEEN ALLOWED TO TESTIFY ABOUT HER SON’S RECENT BEHAVIOR SHOWING SIGNS OF MENTAL HEALTH PROBLEMS EVEN IF THE OFFICER WHO SHOT THE SON DID NOT KNOW OF THE MOTHER’S OBSERVATIONS AT THE POINT WHEN THE OFFICER SHOT THE SON

In Crawford v. City of Bakersfield, ___ F.3d ___ , 2019 WL ___ (9th Cir., December 16, 2019), a three-judge Ninth Circuit panel rules that non-expert testimony about past eccentric behavior of a person shot by a police officer may be admissible even though the officer who did the shooting was not aware of the past observations of behavior. The Ninth Circuit staff summary (which is not part of the Court’s decision) is as follows:

The panel vacated the district court’s judgment in favor of defendants following a jury trial in an action brought pursuant to 42 U.S.C. § 1983 and state law arising from a police officer’s fatal shooting of plaintiff’s son, Michael Dozer. Plaintiff alleged that the district court abused its discretion in excluding as irrelevant her testimony about her percipient observations of Dozer’s past behavior, which she offered to prove that police officer Stringer should have recognized that Dozer was exhibiting signs of mental illness at the time of their encounter and therefore that the shooting was unreasonable. [LEGAL UPDATE EDITORIAL NOTE: Whether the person subjected to use of force by an officer has exhibited signs of mental illness is one of the


factors the courts will consider in assessing the reasonableness of the force used by the officer, in addition to the factors under Graham v. Connor, 490 U.S. 386, 397 (1989), the availability of less intrusive force, and whether proper warnings were given.]

The panel held that the district court abused its discretion in holding that plaintiff’s proposed testimony was irrelevant because [Officer Stringer], at the time of the shooting, did not know about the past events to which plaintiff would have testified. The panel noted that whether a suspect has exhibited signs of mental illness is one of the factors a court will consider in assessing the reasonableness of the force used. The panel held that plaintiff’s testimony regarding Dozer’s past behavior and treatment was relevant to whether he would have appeared to be mentally ill on the day of the shooting, and therefore whether Stringer knew or should have known that Dozer was mentally ill. The panel rejected defendants’ argument that plaintiff’s testimony was an improper lay opinion under Rule 701 because she lacked the expertise to offer a psychological or psychiatric diagnosis. The panel held that so long as plaintiff stopped short of opining that Dozer had a mental illness, she was competent to testify about her own observations of and experiences with her [son Michael Dozer]. The panel held that the district court’s error in excluding plaintiff’s testimony undercut her ability to prove a “central component” of her case: that a reasonable officer in defendant’s position would have recognized that Dozer was mentally ill. The panel concluded that the evidentiary error was not harmless, and that a new trial was warranted.

Result: Reversal of summary judgment ruling for the governmental defendants by the U.S. District Court for the Eastern District of California. Case remanded for a new trial. LEGAL UPDATE EDITORIAL NOTE: The factual description in the Ninth Circuit’s decision is lengthy and is addressed only briefly in the Ninth Circuit staff summary above. The decision in its entirety can be accessed on the Ninth Circuit’s website, where published decisions are arranged by date. CIVIL RIGHTS ACT CIVIL LIABILITY FOR EXCESSIVE FORCE: NO QUALIFIED IMMUNITY FOR OFFICER IN LIGHT OF PLAINTIFF’S ALLEGATION THAT HE WAS NOT RESISTING ARREST WHEN OFFICER PLACED PLAINTIFF IN A “CHOKEHOLD” (MORE ACCURATELY CHARACTERIZED AS A “LATERAL VASCULAR NECK RESTRAINT”) In Tuuamalemalo v. Greene, ___ F.3d ___, 2019 WL ___ (9th Cir., December 24, 2019), a three-judge Ninth Circuit panel is unanimous in denying qualified immunity to a law enforcement officer who used a lateral vascular neck restraint to control a person. The facts in the case appear to be heavily disputed, but at the current stage of the case – i.e., review of the law enforcement officer’s motion for summary judgment and qualified immunity – all factual allegations are viewed in the best light for the plaintiff. Las Vegas police officers were called to a bar to a music/alcohol venue to prevent a bar fight from developing. Plainftiff Tuuamalemalo alleges that he did nothing to resist arrest by officers, and that Officer Shahann Green overreacted to the situation by placing him in a lateral vascular neck restraint, which the Ninth Circuit opinion generally refers to as a “chokehold.”


The panel stated that this Circuit’s decision in Barnard v. Theobald, 721 F.3d 1069 (9th Cir. 2013), squarely addressed the constitutionality of the use of a chokehold on a non-resisting person. The panel held that viewing plaintiff’s version of the facts in the light most favorable to him, he was not resisting arrest when defendant placed him in a chokehold. Further, there was little chance he could initiate resistance with five other officers fully restraining him and pinning him to the ground. The panel concluded that given the state of the law in this Circuit, it was clearly established that the use of a chokehold on a non-resisting, restrained person violated the Fourth Amendment’s prohibition on the use of excessive force. The panel further held that the same version of the facts that justified the district court’s decision to deny defendant qualified immunity under § 1983 precluded a grant of immunity under Nevada law.

Result: Reversal of U.S. District Court (Nevada) order of summary judgment that had granted qualified immunity to defendant Officer Greene; case remanded for trial.

*********************************

WASHINGTON STATE SUPREME COURT RCW 46.61.305(2): DRIVER DID NOT MEET TURN SIGNAL REQUIREMENT BY SIGNALING BEFORE MOVING INTO LEFT-TURN-ONLY LANE AND NOT REACTIVATING LEFT TURN SIGNAL BEFORE TURNING LEFT WHEN STOPLIGHT TURNED GREEN; OFFICER’S STOP OF VEHICLE HELD JUSTIFIED State v. Brown, ___ Wn.2d ___, 2019 WL ___ (December 26, 2019) Facts and Proceedings below: (Excerpted from Supreme Court opinion)

On the evening of March 22, 2015, Brown was driving his truck in Kennewick, Washington. State patrol officers observed Brown turn right onto a four-lane street. While turning, the left side tires of Brown’s truck briefly crossed the white dashed divider line before moving back into the correct lane. Eventually, Brown activated his left turn signal and moved his truck left while the signal blinked multiple times before shutting off. Brown again signaled his intent to change lanes, moving into the designated left turn lane while the turn signal blinked twice and then ceased. Brown approached and stopped at a red light; he did not reactivate his left turn signal at the light or while executing the left turn. State patrol officers had been driving behind Brown through the lane changes and turn, and the officers initiated a traffic stop. After his breath test showed 0.26 breath alcohol content, Brown was arrested for driving under the influence. In district court, Brown moved to suppress evidence gathered during the traffic stop. Among other things, the State argued that Brown violated RCW 46.61.305 for failing to continuously signal his intent to turn left. The court concluded that a driver is not required to reactivate a turn signal when entering a turn-only lane and, thus, the state


patrol officers had no cause to stop Brown. Without the breath alcohol concentration evidence, Brown’s case was dismissed. The district court denied reconsideration. The State appealed, and the superior court upheld the district court’s decision that Brown’s wide right turn and lane changes were proper but reversed the conclusion that he did not need to continuously signal his intent to turn left under RCW 46.61.305. Brown appealed only this holding. The Court of Appeals reversed the superior court and concluded that .305 requires a signal only when public safety is affected. Because Brown was in a turn-only lane that did not jeopardize public safety, no signal was required. State v. Brown, 7 Wn. App. 2d

121, 123 (2019). Chief Judge Lawrence-Berrey dissented, reasoning that a signal must be continuous under the plain language of RCW 46.61.305.

[Footnote and citations to the record omitted; some paragraphing revised for readability] ISSUE AND RULING: Under RCW 46.61.305(2), where no observable pedestrians or other drivers were apparently put at risk, did Brown violate the turn signal requirement when he signaled before moving into the left-turn-only lane but did not reactivate his left turn signal before turning left when the stoplight turned to green? (ANSWER BY SUPREME COURT: Yes, rules a unanimous court) Result: Reversal of Division Three Court of Appeals decision that reversed a Benton County Superior Court decision that had reversed a Benton County District Court decision; the result of the decision of the Supreme Court of Appeals is to allow prosecution of a DUI charge against David Joseph Brown. ANALYSIS: (Excerpted from Supreme Court opinion)

To determine whether Brown’s failure to continuously signal his intent to turn violated RCW 46.61.305, we must first interpret the phrase “when required” in RCW 46.61.305(2). . . . . RCW 46.61.305 states:

When signals required-Improper use prohibited. (1) No person shall turn a

vehicle or move right or left upon a roadway unless and until such movement can be made with reasonable safety nor without giving an appropriate signal in the manner hereinafter provided.

(2) A signal of intention to turn or move right or left when required shall be given continuously during not less than the last one hundred feet traveled by the vehicle before turning.

(Emphasis added.)

“When required” is not defined in section .305 or Title 46. Brown contends the phrase implies there are instances when signaling is not required. Thus, he argues, interpreting RCW 46.61.305 as always requiring a signal renders the phrase meaningless. The


Court of Appeals largely agreed, noting that we must construe statutes to give effect to all the language used. . . . Because the words “when required” were used, lawmakers contemplated circumstances when turn signals are not required. To that end, the Court of Appeals read .305(1) as concerned primarily with public safety. Consequently, the court reasoned that a signal under .305(2) is required only when public safety is implicated by .305(1). If a turn can be made safely without a signal, no signal is required. Because Brown was in a turn-only lane and no other traffic was affected, he could safely turn and no signal was needed [the Brown majority ruled]. The plain language of .305(1) sets out two requirements: safe movement and use of an appropriate signal. See State v. Lemus, 103 Wn. App. 94, 99 (2000) (“Paraphrased in

the affirmative, RCW 46.61.305(1) plainly means that the driver must make a lane change safely and with an appropriate signal.”). The signal requirement in .305(1) is

modified by the prepositional phrase “in the manner hereinafter provided.” Subsection .305(2) then describes the manner of signaling: a signal of intention to turn or move when required shall be given continuously for not less than the last 100 feet traveled by a vehicle. This provision sets out the manner of giving a turn signal; it does not describe when a signal is required. As the State explains, signaling is always required on roadways. RCW 46.61.305 does

not regulate movement on other types of roads, such as private roads or parking lots. In the unrelated State v. Brown, a driver turned right out of a parking lot without signaling. 119 Wn. App. 473, 475 (2003). The Court of Appeals explained that the plain language of .305(1) applies to vehicles moving or turning upon a roadway, not onto a roadway. The Brown court recognized that RCW 46.61.305 contains different requirements for vehicles traveling on different types of roads. Thus, “when required” has meaning; signals are required when a turn or lane change is executed on a roadway. [Defendant] Brown offers a conceivable but not reasonable interpretation of .305’s “when required” when the phrase is read in context with subsection (1) . . . . Brown’s interpretation conflates .305(1) and (2). It also merges the safety requirement with the signal requirement – presumably no turn or lane change will be executed unless it can be done safely, and a turn or lane change done safely will never require a signal. Brown’s interpretation also ignores its implications for public safety. One purpose of a turn signal is to alert other drivers and pedestrians of one’s intent to change lanes as well as to turn right or left. See RCW 46.61.305(1). Brown’s interpretation relies on driver perception but does not account for the perceptions of other drivers and pedestrians. Blind corners and unprotected left turns with oncoming traffic abound; pedestrians may or may not cross streets depending on the presence of a car’s turn signal; and, failing to signal may lead other drivers to think it safe to change lanes or turn themselves. Brown would presumably argue that his reading of .305 covers these situations because a lane change or turn must always be done safely. That is, when other traffic or pedestrians are present, public safety is implicated and a signal is required. But such an interpretation presumes the driver is aware of other traffic or pedestrians. Tragically, this is not always the case. . . .

http://lawriter.net/getCitState.aspx?series=Wn.App.&citationno=103+Wn.App.+94&scd=WA


Leaving the decision to use a signal to the perception of individual drivers undermines the ultimate purpose of traffic laws: preventing accidents and encouraging highway safety. . . . The State’s interpretation, on the other hand, recognizes that whenever a driver intends to turn or change lanes, a signal is required – eliminating the potential for “driver error,” as described above. The plain language of RCW 46.61.305 is sufficiently clear to discern legislative intent. The phrase “when required” refers to the manner of providing a required signal whenever a driver is traveling on a roadway. Here, Brown signaled once to enter the left-turn-only lane. While the turn-only lane may have indicated to drivers behind Brown (i.e., the state patrol car) that he intended to turn, neither nearby nor oncoming traffic was alerted because Brown did not continuously signal. A turn-only lane has markings on the street, but they may not be visible to oncoming traffic – made more obscure by the cars covering them and by the time of day, 10 p.m. in this case.

[Footnotes and some citations omitted; some citations revised for style; some paragraphing revised for readability]

********************************* REMINDER RE RESEARCH TOOL: ELECTRONIC SURVEILLANCE AND DIGITAL EVIDENCE MANUAL FROM THE KING COUNTY PROSECUTOR’S OFFICE

Two years ago, I included in the January 2018 Legal Update a note stating that readers should find useful the 2017 update of one of the research sources on the home page of the website of the Washington Association of Prosecuting Attorneys (WAPA). This is a reminder that I also provided in last month’s Legal Update. Although the publication generally is focused on prosecutors, there is much that is practical and useful for Washington law enforcement officers in the comprehensive and well-indexed compilation, Electronic Surveillance and Digital Evidence in Washington State, 2017, by Susan K. Storey, Sr. Deputy Prosecuting Attorney, Retired, King County.

*********************************

WASHINGTON STATE COURT OF APPEALS THREE PRIMARY RULINGS UNDER PRIVACY ACT, CHAPTER 9.73 RCW: (1) PROBABLE CAUSE AS TO THE TARGET IN APPLICATION TO SUPERIOR COURT FOR RECORDING RELATING TO FELONY CRIMES SUPPORTS RECORDING OF DEFENDANT WHO INCIDENTALLY BECAME INVOLVED IN RECORDED CONVERSATION; (2) MINOR MISTAKES IN FACTUAL ALLEGATIONS SUPPORTING APPLICATION FOR RECORDING DO NOT UNDERMINE SUPERIOR COURT’S PROBABLE CAUSE FINDING; (3) APPLICATION FOR RECORDING IS SUFFICIENT, IN LIGHT OF THE CIRCUMSTANCES, IN DESCRIBING THE PLACE WHERE THE RECORDING WOULD OCCUR

State v. J.K.T., ___ Wn. App. 2d ___ , 2019 WL ___ (Div. I, December 30, 2019) Facts and Proceedings below: (Excerpted from Court of Appeals opinion)


On January 26, 2016, five males wearing masks and dark clothing entered a section of the homeless encampment known as “The Jungle,” located beneath a freeway in Seattle near the intersection of Interstates 5 and 90. The section of encampment they entered was occupied at the time by many people, including Phat Nguyen, Amy Jo Shinault, Tracy Bauer, Jeanine Brooks, and James Tran. Two of the masked individuals had guns and began shooting the occupants of the encampment, killing both Tran and Brooks. The masked attackers also shot Nguyen, Shinault, and Bauer. They survived. The next day, Foa’l Tautolo, known as “Lucky,” contacted the police, claiming to have information about the shootings. Lucky and his cousin, known as “Reno,” went to the Seattle Police Department’s headquarters to be interviewed. Lucky informed the police that his nephew, James, had called him and admitted to participating in the shooting because he needed money. Lucky also informed the police that he had, in the previous few days, seen his nephew with a .45 caliber handgun. [Court’s footnote 1: The police had found matching caliber bullet shell casings at the scene of the shooting.] Lucky

believed that James would be willing to discuss the shootings with him and Reno again in person. The lead detective in the case, [Detective A], then prepared an application for a judicial authorization to make a one-party consent recording of James. In the application, [Detective A] included the information he had received from Lucky regarding James admitting to the shooting and sought authorization to record him speaking about the shootings with Lucky. The application also noted that James and his family were known to have been “staying near/under 4th Ave South and Edgar Martinez Way.” [Court’s footnote 2: The cross street in the application contained a typographical error. There is no Edgar Martinez Way that intersects with 4th Avenue South; instead, the name of the street is Edgar Martinez Drive South.]

The application further stated that the conversations it sought authorization to record were “expected to occur somewhere in or around Seattle in one of the many homeless camps in the area. Because James, his brothers and their families are homeless and move around, it is impossible to predict where the conversation may take place[.] Investigators do believe they will remain in the area, and within King County.” The authorization order was signed by a King County superior court judge. The order stated that there was probable cause to believe that James had committed murder in the second degree and assault in the first degree. The next day, Lucky and Reno were wired and dropped off near James’s encampment on 4th Avenue South in Seattle. Lucky had arranged, over the telephone, to meet James at James’s encampment near “the stadium.” [Court’s footnote 3: There are actually two stadiums located adjacent to one another on 4th Avenue South. It is unclear from the record to which stadium Lucky was referring.] The recording occurred near an underpass across the street from what Lucky referred to as “like a Goodwill, but it’s not a Goodwill.” [Court’s footnote 4: It appears that Lucky was referencing the Salvation Army Family Store, as it is the only store on 4th Avenue South across the street from the stadiums that matches Lucky’s description.]

James, Jerome, and J.K.T. were present during the conversation and made statements leading officers to believe that they all actively participated in the shooting.


J.K.T. was subsequently charged with felony murder in the first degree predicated on robbery and assault. J.K.T. moved to suppress the one-party consent recording in which he and his brothers discussed the shooting, arguing that it was obtained in violation of Washington’s privacy act. The trial court denied the motion. J.K.T. subsequently and unsuccessfully sought to exclude James’s and Jerome’s statements in the recording on the grounds that they were inadmissible hearsay and violated his right, guaranteed by the Sixth Amendment to the United States Constitution, to confront the witnesses against him. . . . . The juvenile court found J.K.T. guilty of two counts of murder in the first degree and three counts of assault in the first degree. The court imposed a manifest injustice disposition that rendered J.K.T. into the custody of the juvenile rehabilitation authority until he is 20 years old. Treatment-related supervision is to follow his release.

ISSUES AND RULINGS: 1. The government’s application for recording authorization under the Privacy Act established probable cause to believe that the target, James Taafulisia, had committed murder and assault, but it did not establish probable cause to believe that defendant, who was subsequently incidentally recorded, was involved in the murder and/or assault. Did the trial court properly deny a motion to suppress a video exhibit (the “encampment video”) in the trial of defendant J.K.T. for failure of the government’s application to comply with the one-party consent provisions of the Privacy Act where the authorizing judge found probable cause in the government’s application to believe that the target (James Taafulisia) had committed murder and assault, even if there was not probable cause at the point of application to believe that defendant J.K.T. was also involved? (ANSWER BY COURT OF APPEALS: Yes, the statute was met by the application with a probable cause showing as to the target, and the statute does not require a PC showing as to others recorded incidentally, such as the defendant here) 2. The government’s application for recording authorization under the Privacy Act contained some minor mistaken allegations of facts. Minor factual mistakes in the one-party intercept application for the encampment recording do not undermine the issuing court’s probable cause determination in approving the State’s application for recording authority under the Privacy Act? (ANSWER BY COURT OF APPEALS: Yes, minor mistakes of fact in the application do not undermine the issuing court’s probable cause determination) 3. The government’s application for recording authorization under the Privacy Act was imprecise in identifying the location where the recording would occur. Did the trial court properly deny a motion to suppress the encampment video where a superior court judge ruled that the application to record complied with the Privacy Act by identifying the expected location of the recording with as much precision as was possible under the circumstances? (ANSWER BY COURT OF APPEALS: Yes, the application was sufficiently precise as to location for the recording activity) Result: Affirmance of King County Superior Court (Juvenile Court) adjudication of J.K.T. as guilty of two counts of murder in the first degree and three counts of assault in the first degree.


ANALYSIS: 1. Because the recording showed probable cause as to the target, it is admissible even though the application did not show probable cause as to the defendant, who was incidentally involved in the conversation recorded

Washington’s Privacy Act is one of the most restrictive electronic surveillance laws in the country. With a number of exceptions, the act imposes criminal penalties, civil liability and exclusionary consequences relating to recording conversations or communications without the consent of all parties to the conversations or communications. RCW 9.73.090 sets forth exceptions to the general rule prohibiting the recording of conversations or communications without the consent of all parties. One exception is for felony investigations in some circumstances as provided in RCW 9.73.090(2). That subsection provides in part that

[i]t shall not be unlawful for a law enforcement officer acting in the performance of the officer’s official duties to intercept, record, or disclose an oral communication or conversation where the officer is a party to the communication or conversation or one of the parties to the communication or conversation has given prior consent to the interception, recording, or disclosure: PROVIDED, That prior to the interception, transmission, or recording the officer shall obtain written or telephonic authorization from a judge or magistrate, who shall approve the interception, recording, or disclosure of communications or conversations with a nonconsenting party for a reasonable and specified period of time, if there is probable cause to believe that the nonconsenting party has committed, is engaged in, or is about to commit a felony.

RCW 9.73.090(2) (Emphasis added). RCW 9.73.090(2) further states that “[a]ny recording or interception of a communication or conversation incident to a lawfully recorded or intercepted communication or conversation

pursuant to this subsection shall be lawful and may be divulged.” (Emphasis added) An application for an order authorizing a one-party consent recording must comply with the many requirements set forth in RCW 9.73.130. Among the requirements of section 130 are requirements for:

(3) A particular statement of the facts relied upon by the applicant to justify his or her belief that an authorization should be issued, including: (a) The identity of the particular person, if known, committing the offense and whose communications or conversations are to be recorded; (b) The details as to the particular offense that has been, is being, or is about to be committed; (c) The particular type of communication or conversation to be recorded and a showing that there is probable cause to believe such communication will be communicated on the wire communication facility involved or at the particular place where the oral communication is to be recorded;


(d) The character and location of the particular wire communication facilities involved or the particular place where the oral communication is to be recorded;

. . . .

RCW 9.73.130. The J.K.T. Court explains, per the following excerpted text, its legal analysis for rejecting the defendant’s “probable cause” theory:

J.K.T. asserts that the application filed herein for an order authorizing a one-party consent recording did not establish probable cause as to J.K.T., as required by RCW 9.73.090(2), and that it is therefore inadmissible against him. However, J.K.T. also concedes that the application established probable cause sufficient to authorize the recording of J.K.T.’s brother, James. We agree with the parties that probable cause as to James was established. Accordingly, under the circumstances herein, no such finding as to J.K.T. was required. The recording of utterances made by James was plainly supported by a finding of probable cause. In addition, RCW 9.73.090(2) is clear that conversations or communications recorded “incident to a lawfully recorded or intercepted communication or conversation pursuant to this subsection shall be lawful and may be divulged.” The parties dispute whether this language applies to J.K.T. and (impliedly) Jerome, disagreeing as to the meaning of the word “incident.” The State essentially contends that “incident” means “ancillary” or “as part of,” and that the admission of the recording of J.K.T. was proper because it was obtained as part of a lawful recording of James. In contrast, J.K.T. asserts that “incident” means, essentially, l“accidentally,” and that because [Detective A] planned or hoped to record James and his brothers together, the recording of J.K.T. was not accidental, thus rendering the contents of the recording inadmissible against J.K.T. The State has the better argument. . . . . Here, “incident” does not mean “accidental.” Thus, so long as the authorization to record James was supported by probable cause, which it was, the incidental recording of J.K.T. need not be independently supported by probable cause as to him in order to be admissible at trial against him.

2. Minor misstatements of facts in the application do not undermine the PC finding as to the application for recording authorization In support of rejection of defendant’s misstatements theory, the Court of Appeals explains its analysis as follows in its lengthy footnote 7:

J.K.T. also asserts that three material misrepresentations in the application “form no basis for establishing any probable cause to surreptitiously record [J.K.T.].” Because probable cause was not required to be established as to J.K.T., this argument fails. Furthermore, J.K.T.’s asserted material misrepresentations were not, in fact, material to the court’s finding of probable cause as to James.


First, J.K.T. asserts that the application’s description of James and his family as being “involved” in previous unsolved crimes was a material misrepresentation because it painted James’s family as the kind of people who would commit crimes. Given that the application stated that James confessed to the shooting, was known to possess a gun with bullets matching those removed from one of the victims of the shooting, and resembled the, admittedly vague, physical description of the shooters given by witnesses, it is clear that probable cause was not dependent on any previous potential involvement in or association with criminal activity. Second, J.K.T. asserts that the application omitted material information regarding Lucky’s and Reno’s criminal history and that they were compensated for the information they provided. However, J.K.T. also acknowledges that the application stated that Lucky and Reno have criminal histories. Additionally, the fact that Lucky and Reno could benefit from providing assistance in an active homicide investigation would lead to an inference that their evidence would be credible – providing inaccurate information would not help them receive favorable treatment. The probable cause analysis was plainly not affected by the omission of the specifics of Lucky’s and Reno’s criminal histories or speculation about how much time off of potential sentences they stood to gain. In addition, it is plainly wrong to suggest that the judge authorizing the recording was unaware that criminal informants generally want to receive some form of favor in exchange for their assistance. Third, J.K.T. asserts that one line in the application, stating that witnesses to the shooting could not identify the shooters, materially misinformed the authorizing court because one of the victims did identify her shooter as a man known as Juice. However, the application expressly states that “one of the males involved in the shooting was possibly a Samoan male known only by the street name of ‘Juice.’“ Plainly, the application did not misinform the court on this point.

[Some paragraphing revised for readability] 3. The location allegations in the recording application are adequate under the circumstances

In support of rejection of defendant’s location theory, the Court of Appeals explains, per the following excerpted language:

J.K.T. next asserts that both the application for the order authorizing a one-party consent recording and the order itself did not set forth a sufficiently specific location for the place where the recording would occur to satisfy the requirements of the privacy act. Although he did not clearly articulate that which he would consider a sufficiently specific location, it appears that J.K.T. believes that something approximating the specificity of a street address is required to be included in both the application and the order authorizing a recording, and that the application’s inclusion of a cross street and a description of the location as being a homeless encampment was insufficient. In response, the State asserts that (1) the application sufficiently informed the authorizing judge of the character and location of the place where the recording would occur by informing the judge that the recording would take place at a homeless encampment and identifying the cross street near the encampment in which James was


last known to be staying, and (2) the order did not need to set forth a specific location where recording was authorized. We conclude that the authorization and the application for authorization herein complied with the requirements of the privacy act regarding inclusion of the place where the recording would occur. Under the privacy act, an order authorizing a one-party consent recording must (1) be obtained prior to making the recording, (2) be limited to a “reasonable and specified period of time,” and (3) be supported by probable cause to believe that the nonconsenting party has committed, is committing, or is about to commit a felony. RCW 9.73.090(2). There is no requirement that an order authorizing a one-party consent recording delineate the place where recording is authorized. . . . Under RCW 9.73.130(3)(d), however, applications for an order authorizing a one-party consent recording must include a particular statement of “the facts relied upon by the applicant to justify his or her belief that an authorization should be issued, including: . . . (d) The character and location of the particular wire communication facilities involved or the particular place where the oral communication is to be recorded.” [Court’s footnote 9 in part: This requirement applies to all applications seeking authorization under RCW 9.73.090 except in cases where there is probable cause “to believe that the communication or conversation concerns the unlawful manufacture, delivery, sale, or possession with intent to manufacture, deliver, or sell, controlled substances ... or legend drugs ... or imitation controlled substances.” RCW 9.73.090(5). In such cases a judge may authorize a one-party consent recording even though the true name of the nonconsenting party, or the particular time and place for the interception, transmission, recording, or disclosure, is not known at the time of the request, if the authorization describes the nonconsenting party and subject matter of the communication or conversation with reasonable certainty under the circumstances. RCW 9.73.090(5).] J.K.T. appears to assert that [RCW 9.73.090(3)(d)] requires that an application include either the character and location of the particular wire communication facilities involved, or, the particular place where the oral communication is to be recorded. This misreads the statute. . . . [T]he prepositive modifier in RCW 9.73.130(3)(d), “character and location,” applies to both the wireless communication facilities and to the particular place where the oral communication is to be recorded. . . . . . . . RCW 9.73.130(3)(d) requires an application to include a description of the nature and position of a region, or area, such that it can be identified and distinguished from other areas. Although of limited help, two cases provide some insight into that which constitutes a sufficient description of the character and location of the particular place where an oral communication is to be recorded. [See State v. Porter, 98 Wn. App. 631 (1999); State v. Knight, 54 Wn. App. 143 (1989)]. However, neither of these cases determined that which constitutes a sufficient description of the “character and location” of the “particular place where the oral communication is to be recorded.”


In Knight, the defendant, having been charged and convicted of two counts of delivery of a controlled substance, asserted on appeal that the application for the authorization to record him, on multiple occasions, delivering cocaine to an undercover officer did not include a sufficient description of the location of all the places at which the police anticipated the recordings would occur. Division Three rejected this argument, noting that “[t]he application specifically identified two locations, one of which was the address where the recorded communications actually occurred.” [Court’s footnote 12: The legislature had not yet added subsection (5) to RCW 9.73.090 at the time the police applied for and obtained an order authorizing the recording of Knight. See former RCW 9.73.090, Laws of 1986, ch. 38, § 2. Thus, even though Knight was being recorded as part of an investigation into the crime of delivery of a controlled substance, the application was still required to include the character and location of the particular place where the communication was to be recorded under RCW 9.73.130.]

Thus, it is clear that an application satisfies the location requirements of RCW 9.73.130(3)(d) if it included the location of the place where the recording actually occurs, regardless of whether it included the locations of other places the police may have anticipated recording. In Porter, the defendant was charged and convicted with possession of methamphetamine, but asserted on appeal that the application for authorization to record him discussing obtaining methamphetamines did not sufficiently describe the particular place where his communications would be recorded. The application stated that recordings would occur in unknown locations in Yakima County or adjacent counties. [Court’s footnote 13: Yakima County is adjacent to eight counties: Benton, Grant, King, Kittitas, Klickitat, Lewis, Pierce, and Skamania.] In response, the State

asserted that no location was required to be included in the application at all because of RCW 9.73.090(5). The court rejected the State’s argument, noting that Porter was charged only with possession, not with any intent to manufacture, deliver, or sell controlled substances, and that, therefore, RCW 9.73.090(5) was inapplicable. It appears that the State did not present any argument that its application satisfied the requirements of RCW 9.73.”130(3)(d), as the court did not discuss any such contention. Ultimately, the court concluded that the application failed to satisfy several of the requirements set forth in RCW 9.73.130, including the requirement in subsection (3)(d). Thus, Porter stands for the unremarkable proposition that an application that provides only that the recording may occur in any “unknown location” within any one of nine different counties is insufficient to satisfy the requirements of RCW 9.73.130(3)(d). We now consider the application for an authorization to record submitted herein. The application stated that James and his brothers had been “staying near/under 4th Ave South and Edgar Martinez Way” in Seattle. [Court’s footnote 14: Again, there is no Edgar Martinez Way that intersects with 4th Avenue South in Seattle. Instead, there is an Edgar Martinez Drive South that intersects with 4th Avenue South.]

[The application] further stated that the recordings were “expected to occur somewhere in or around Seattle in one of the many homeless camps in the area.” The application noted that because James and his family were homeless “and move around, it is


impossible to predict where the conversation may take place[.] Investigators do believe they will remain in the area, and within King County.” After receiving authorization, Lucky and Reno met with James and his brothers at the homeless encampment the brothers were staying in at the time. Although Lucky was unable to identify a street address for the encampment, he explained that it was near the stadium and across the street from a clothing donation store similar to a Goodwill. This location is approximately a block and a half north of the intersection of 4th Avenue South and Edgar Martinez Drive South. We conclude that this information was minimally adequate to satisfy the requirement of RCW 9.73.130(3)(d) that the application set forth the character and location of the particular place where recording is expected to occur. The application accurately stated that recording was expected to occur in a homeless encampment in Seattle. Additionally, the recording actually took place only a block and a half away from the cross street identified in the application. Even read at its broadest, the application herein specified that the recording was expected to occur in a homeless encampment in Seattle, and certainly within King County. This is far more specific than the language-describing unknown locations in one of nine counties-rejected as insufficient in Porter. Contrary to J.K.T.’s assertions, this application plainly did not seek “unfettered discretion” to record anywhere in King County but, rather, sought authorization to record James at his homeless encampment in Seattle, likely located near the intersection of 4th Avenue South and Edgar Martinez Drive South. This is exactly what occurred. The application satisfied the requirements of RCW 9.73.130(3)(d). The trial court properly ruled that this was so.

[Some citations omitted, others revised for style; some footnotes omitted; some paragraphing revised for readability] PARENTAL USE OF FORCE IN DISCIPLINE OF CHILD: FATHER’S FACE SLAP OF 11-YEAR-OLD SON FOR TALKING BACK MAY OR MAY NOT HAVE BEEN JUSTIFIED UNDER RCW 9A.16.100, BUT TRIAL COURT ERRED IN CONCLUDING THAT FATHER’S SLAP WAS PER SE NOT JUSTIFIED

In Ugolini v. Ugolini, ___ Wn. App. 2d ___ , 2019 WL ___ (Div. III, December 17, 2019), Division Three of the Court of Appeals rules in an order-of-protection case that a Spokane County Superior Court judge misinterpreted RCW 9A.16.100 in concluding that a father’s hand slap of his son’s face for talking back was per se unjustified under RCW 9A.16.100. The Court of Appeals explains its ruling as follows:

The legislature created a safe harbor that allows a parent, teacher, or guardian to use reasonable and moderate force to restrain or correct a child. RCW 9A.16.100 provides, in relevant part:

It is the policy of this state to protect children from assault and abuse and to encourage parents, teachers, and their authorized agents to use methods of correction and restraint of children that are not dangerous to the children.


However, the physical discipline of a child is not unlawful when it is reasonable and moderate and is inflicted by a parent, teacher, or guardian for purposes of restraining or correcting the child.

The statute [in the criminal code] sets forth a nonexclusive list of physical disciplinary actions that are presumed unreasonable:

(1) Throwing, kicking, burning, or cutting a child; (2) striking a child with a closed fist; (3) shaking a child under age three; (4) interfering with a child’s breathing; (5) threatening a child with a deadly weapon; or (6) doing any other act that is likely to cause and which does cause bodily harm greater than transient pain or minor temporary marks. The age, size, and condition of the child and the location of the injury shall be considered when determining whether the bodily harm is reasonable or moderate.

RCW 9A.16.100. Courts must consider all of the circumstances of the physical discipline, and determine whether it was objectively excessive, immoderate, or unreasonable. In re Dependency of H.S., 188 Wn. App. 654, 664 (2015) . . . . see also former WAC 388-15-009(2) (2002) (other factors may include the developmental level of the child and the nature of the misconduct). While this court has not analyzed RCW 9A.16.100 in the context of “domestic violence,” it has analyzed the statute in the context of “abuse and neglect.” H.S., 188 Wn. App. 654. There, a 16-year-old girl was removed from her father’s care when she reported that her father and stepmother had slapped and spanked her. Teachers and social service officials were unable to find any marks to corroborate her reports. Nevertheless, a dependency action was commenced, and a contested hearing was held. During the hearing, the father and stepmother admitted to slapping the daughter to discipline her for talking back and behaving violently. The trial court found the girl dependent, and the father appealed. We held that the use of an open hand to slap a child on the face is “permissible so long as it does not ‘cause bodily harm greater than transient pain or minor temporary marks.’” H.S. at 665 (quoting RCW 9A.16.100). [Court’s footnote: The holding should be taken in context. The result would have been different had the child been small. As implied by RCW 9A.16.100, the smaller the child, the more likely a slap on the face will be deemed unreasonable or immoderate.]

This case is similar to H.S. While H.S. dealt with the definition of abuse and this case deals with the definition of domestic violence, the circumstances surrounding both emain consistent. Both cases involve a parent slapping his child on the face as discipline; and in both instances, independent witnesses did not see any marks on the child's face after the slap. B.U. was likely smaller and more vulnerable than the 16-yearold girl in HS. Whether Mr. Ugolini acted within or outside of the safe harbor created by RCW 9A.16.100 is a question of fact, a question we do not answer. The trial court abused its discretion by not analyzing the appropriate factors and concluding that any physical discipline by a parent constitutes domestic violence. By its terms, the order of protection has expired. Nevertheless, we remand for the trial court to vacate the wrongfully issued order and any other order in this case issued based upon it.


We grant this relief because such orders, if wrongfully issued, often have collateral consequences that extend beyond the orders' duration.

[Some citations omitted, others revised for style] Result: Reversal of Spokane County Superior Court one-year order of protection against Frank Ugolini. SEXSOMNIA DEFENSE: TRIAL COURT LAWFULLY PRECLUDED DEFENDANT IN CHILD MOLESTATION CASE FROM PRESENTING EXPERT TESTIMONY ABOUT SEXSOMNIA WHERE THE EXPERT COULD NOT DETERMINE IF DEFENDANT SUFFERED FROM THE CONDITION In State v. Pratt, ___ Wn. App. 2d ___ , 2019 WL ___ (Div. II, December 17, 2019), Division Two of the Court of Appeals rules that the trial court’s exclusion of expert testimony about the phenomenon of sexsomnia did not violate Pratt’s constitutional right to present a defense. The Court of Appeals describes the circumstances as follows:

Before trial, Dr. C. Kirk Johnson, a psychologist, evaluated Pratt to determine if he suffered from a sleep disorder called sexsomnia. Sexsomnia is an abnormal activity, similar to sleepwalking, that involves people engaging in sexual acts during sleep. Johnson concluded that a possible explanation for Pratt’s actions included sexsomnia, but he could not confirm it happened. Johnson further concluded that no psychological evaluation could determine if a particular behavior did or did not occur. Johnson reported that Pratt completely denied engaging in the alleged conduct and “[r]egarding sexsomnia, Mr. Pratt does not feel that this is the case, saying that this has not been a past problem.” At a pretrial evidentiary hearing, Pratt indicated he wanted Johnson to testify as an expert at trial about sexsomnia. Although Johnson could not conclude that Pratt had the disorder, he would testify that sexsomnia exists. Pratt wanted to use this testimony to support his general denial defense. Pratt wanted to argue at trial that if a person is asleep, they cannot be guilty because any touching would not have been done for the purpose of sexual gratification. Pratt viewed being asleep as a general denial.

[Footnote omitted] In key part, the legal analysis by the Court of Appeals is as follows:

The defense of involuntary action as a result of being asleep . . . should not be treated as one of diminished capacity. Instead, involuntariness due to sleep is an affirmative defense that must be proved by the defendant by a preponderance of the evidence. [State v. Deer, 175 Wn.2d 725, 733-34 (2012)]. Once the court properly determined that Pratt could not meet the evidentiary requirements to present a defense of diminished capacity, Pratt proffered Johnson’s testimony to prove that sexsomnia is a recognized psychiatric disorder. Pratt agreed to limit the testimony to saying that there are documented cases where it has occurred. Although the court excluded the evidence for the wrong reason, the evidence was properly excluded. It had no relevance. “‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the


determination of the action more probably or less probably than it would be without the evidence.” ER 401. Johnson could not testify that Pratt suffered from sexsomnia either on the night of the sexual molestation or ever. The fact that this disorder exists is irrelevant without some tendency to make the existence of sexsomnia of consequence to the determination of the action more probable than it would without the evidence. No nexus existed between Pratt, sexsomnia, and his actions on the night of the molestation.

[Citation revised for style]

Result: Affirmance of Clark County Superior Court conviction of Cory Pratt for first degree child molestation; the State also prevailed in its cross appeal on a sentencing issue not addressed in the Legal Update.

*********************************

BRIEF NOTES REGARDING DECEMBER 2019 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.” Every month I will include a separate section that provides very brief issue-spotting notes regarding select categories of unpublished Court of Appeals decisions that month. 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 December 2019, seven unpublished Court of Appeals opinions fit these categories. I do not promise to be able catch them all, but each month 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 issues and case results. 1. State v. Jesse Randall Ackman: On December 2, 2019, Division One of the COA, in an Opinion that is part published and part unpublished, rules against the State in defendant’s appeal from his Snohomish County Superior Court conviction for second degree murder. In the

published part of the Opinion, the Court of Appeals rules that the trial court erroneously instructed the jury on the legal standard for self-defense, and the Court of Appeals grants defendant a new tril. That jury instruction ruling will not be further addressed in the Legal Update. In the unpublished part of the Opinion, one issue that is addressed concerns CrR 3.1’s requirement that immediately upon arrest law enforcement officers are required to advise the arrestee of his right to an attorney, regardless of whether officers seek to interrogate the arrestee. The Court of Appeals rules that the officers did not comply with


the requirement of CrR 3.1; the facts relating to this issue are not clearly described (at least to me) in the Opinion, nor does the Court of Appeals clearly explain (again, at least to me) how any error by police was prejudicial to the defendant.

2. State v. Gerald Locket Hatfield, Jr.: On December 2, 2019, Division One of the COA issues an unpublished Opinion that rejects the defendant’s appeal from his King County Superior Court convictions for burglary in the first degree and robbery in the first degree. One of the many issues raised by Hatfield challenged the validity of ballistic identification methodology testified to by a WSP crime lab expert at his trial. The Court of Appeals rejects the challenge by pointing out that the same methodology-based challenge was rejected in State v. DeJesus, 7 Wn. App. 2d 849, 436 P.3d 834 (2019). 3. State v. Jeffrey Gerard: On December 10, 2019, Division Two of the COA issues an unpublished Opinion that rejects the defendant’s appeal from his Klickitat County Superior Court convictions for second degree burglary, possession of a controlled substance, and bail jumping. The Court of Appeals rules that Miranda warnings were not required during an officer’s early contacts with the defendant while responding to a burglary call. The defendant’s

initial statement when the officer contacted him was a spontaneous, unsolicited statement; and the defendant’s subsequent answer to the officer’s Terry stop questioning was made prior to the point of arrest or of custody that was equivalent to arrest. 4. State v. Kurtis Paul Jones-Tolliver: On December 17, 2019, Division Three of the COA issues an unpublished Opinion that rejects the appeal of defendant from his Stevens County Superior Court convictions for two counts of burglary, one count of theft of a motor vehicle and one count of bail jumping. Defendant had moved in Superior Court to suppress his custodial

statements to an officer based in part on Miranda. In Superior Court, two officers testified that defendant received Miranda warnings read from a department-issued card. Defendant did not testify about the content of Miranda warnings. A copy of the Miranda card was not entered into evidence, and neither officer provided details regarding the language on the Miranda card. The Court of Appeals rules that, while it is better practice for the State to enter a copy of the card from which warnings were given, that is not required to establish that proper Miranda warnings were provided. The Court of Appeals opinion concludes as follows:

Mr. Jones-Tolliver did not contend that the warnings were incompletely or inaccurately conveyed to him. In that circumstance, the testimony of two officers that the warnings were read from the department issued rights card provided the trial court with sufficient evidence to conclude that the Miranda rights were properly given and waived.

5. State v. Brent Luyster: On December 17, 2019, Division Two of the COA issues an unpublished Opinion that rejects the appeal of defendant from his Clark County Superior Court convictions for three counts of aggravated first degree murder, plus single counts of attempted first degree murder, first degree unlawful possession of a firearm, and second degree unlawful possession of a firearm. Among the issues raised by defendant was whether a search warrant affidavit established probable cause to search a storage locker. This was a fact-based

issue that bordered on the frivolous in my reading of the case. The Court of Appeals points out that two persons were each shown separately in the affidavit to be credible and to have a relevant basis of knowledge supporting the conclusion that the storage locker contained evidence of the crimes under investigation. 6. Karen Koehler and Edward Moore v. The City of Seattle: On December 30, 2019, Division One of the COA issues an unpublished Opinion that rejects the appeal of two attorneys from


$20,000 + in sanctions awarded against them in a civil lawsuit where the two attorneys represent the estate of a person shot and killed by Seattle PD officers. The introduction to the Court of Appeals Opinion capsulizes the ruling as follows:

This appeal arises from a negligence suit filed on behalf of Lyles’s estate. On June 18, 2018, Lyles was shot by two SPD officers and died as a result of her injuries. Koehler and Moore, counsel for Lyles’s estate, filed a motion under RCW 9.72.090, alleging that one of the officers had committed perjury during a deposition. The motion requested that the trial court refer the matter to the appropriate prosecuting attorney’s office. In response, the respondents moved for CR 11 sanctions against Koehler and Moore, alleging that the motion was not well grounded in fact or existing law, and lacked good faith arguments. The trial court granted the respondents’ motion and imposed CR 11 sanctions. Koehler and Moore raise several issues on appeal, arguing in part that the trial court deprived them of due process, erred in excluding its expert witness, abused its discretion in imposing sanctions, and violated their First Amendment rights. We affirm the imposition of sanctions, but reverse as to the trial court’s evidentiary ruling excluding the expert [the Court concludes, however, that the erroneous evidentiary ruling regarding the expert does not undercut the support for the trial court’s sanctions].

7. State v. Kaz A J McKenzie: On December 31, 2019, Division Three of the COA rejected the appeal of defendant from his Spokane County Superior Court conviction for second degree assault. Among other theories, defendant argued that an officer violated Miranda by not giving him warnings prior to questioning him. Defendant was in his apartment when police contacted him to question him about his nearby encounter with the victim. Defendant spoke with police at the door of his apartment. Later, defendant testified at a CrR 3.5 hearing that he did not feel free to leave at the time of the questioning. His subjective opinion of the encounter does not control, however, nor is freedom to leave the test for Miranda custody. The Court of Appeals agrees with the trial court determination that the evidence showed only a consensual encounter and conversation. The objective standard for “custody” for purposes of Miranda is seizure-plus-more, i.e., circumstances where a reasonable person would believe his freedom of action is curtailed to the degree associated with a formal arrest. The Court of Appeals concludes that there was not even a “seizure,” much less “custody” under Miranda, at the time of the officer’s questions in the defendant’s doorway in a consensual encounter.

*********************************

NEXT MONTH

The January 2020 Legal Update will include entries regarding: (1) State v. Griffith, ___ Wn. App. 2d ___ (Div. III, December 31, 2019) (ruling under the Fourth Amendment and the Washington constitution, article I, section 7, that execution of a county’s courthouse security search policy is lawful only if the searching is limited to the scope of a permissible administrative search and is not pretextual; the case is remanded for additional fact-finding to determine if a security guard determined that the coat pocket did not contain a weapon and then unlawfully seized methamphetamine from a visitor’s coat pocket); and (2) State v. Dawley, ___ Wn. App. 2d ___ (Div. I, December 30, 2019) (ruling that RCW 9A.76.180, the intimidating a public servant statute, must be limited, based on constitutional Free Speech protection, to true threats, i.e., serious expressions of the intention to inflict bodily


harm upon or to take the life of another; the Court of Appeals overturns the defendant’s convictions under RCW 9A.76.180 that were based on language that defendant directed at a city police chief and a city attorney, because defendant did ot make any true threats in the circumstances addressed in the prosecutions)

*********************************

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.

***********************************

INTERNET ACCESS TO COURT RULES & DECISIONS, RCWS AND WAC RULES

The Washington Office of the Administrator for the Courts maintains a website with appellate court information, including recent court opinions by the Court of Appeals and State Supreme Court. The address is [http://www.courts.wa.gov/]. Decisions issued in the preceding 90 days may be accessed by entering search terms, and decisions issued in the preceding 14 days may be more simply accessed through a separate link clearly designated. A website at [http://legalwa.org/] includes all Washington Court of Appeals opinions, as well as Washington State Supreme Court opinions. The site also includes links to the full text of the RCW, WAC, and many Washington city and county municipal codes (the site is accessible directly at the address above or via a link on


the Washington Courts’ website). Washington Rules of Court (including rules for appellate courts, superior courts, and courts of limited jurisdiction) are accessible via links on the Courts’ website or by going directly to [http://www.courts.wa.gov/court_rules]. Many United States Supreme Court opinions can be accessed at [http://supct.law.cornell.edu/supct/index.html]. This website contains all U.S. Supreme Court opinions issued since 1990 and many significant opinions of the Court issued before 1990. Another website for U.S. Supreme Court opinions is the Court’s own website at [http://www.supremecourt.gov/opinions/opinions.html]. Decisions of the Ninth Circuit of the U.S. Court of Appeals since September 2000 can be a ccessed (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 Criminal Justice Training Commission (CJTC) Law Enforcement Digest Online Training can be found on the internet at [cjtc.wa.gov/resources/law-enforcement-digest].

**********************************

Documents

LEGAL UPDATE FOR WASHINGTON LAW ENFORCEMENT 2019 legal update final.pdf · CIVIL RIGHTS ACT CIVIL LIABILITY FOR EXCESSIVE FORCE: PLAINTIFF- ... Readers of this Legal Update are no