LEGAL UPDATE FOR WASHINGTON LAW ENFORCEMENT 2015 legal update.pdf · legal update for washington law enforcement ... united states court of appeals ... two rulings regarding search

Legal Update - 1 September 2015

LEGAL UPDATE FOR WASHINGTON LAW ENFORCEMENT

SEPTEMBER 2015

TABLE OF CONTENTS FOR SEPTEMBER 2015 LEGAL UPDATE ANNOUCEMENT THAT LEGAL UPDATE WILL BE ON WASPC WEBSITE…………..2 ANNOUNCEMENT ABOUT WASBERG’S ARTICLES ON CJTC LED PAGE…………3 NINTH CIRCUIT, UNITED STATES COURT OF APPEALS………………………………3 MIRANDA CUSTODY: NEITHER QUESTIONING AT DEFENDANT’S HOME DURING THE EXECUTION OF A SEARCH WARRANT NOR QUESTIONING AT THE POLICE STATION IMMEDIATELY AFTER THE SEARCH WAS CUSTODIAL UNDER TOTALITY OF CIRCUMSTANCES TEST, BUT OFFICERS SHOULD BE AWARE OF THE RISKS OF “TACTICAL” UN-MIRANDIZED QUESTIONING United States v. Saldana, __ F.3d __ (9th Cir., May 14, 2015)…………..…………………3 BRIEF NOTE FROM THE NINTH CIRCUIT, U.S. COURT OF APPEALS…..…………..7 CIVIL RIGHTS ACT CIVIL LIABILITY: NINTH CIRCUIT UPHOLDS LOWER COURT ORDERS DIRECTING OFFICERS TO PROVIDE DNA SAMPLES TO EXCLUDE THEM AS CONTRIBUTORS OF DNA AT CRIME SCENE Bill v. Brower, ___F.3d ___, 2015 WL ___ (9th Cir., August 31, 2015)……………………7 WASHINGTON STATE SUPREME COURT..……………………………………………….8 8-1 MAJORITY HOLDS THAT BACKPACK TAKEN FROM SUSPECT AT START OF TERRY STOP AUTOMATICALLY BECAME SUBJECT TO SEARCH INCIDENT TO ARREST UNDER THE “TIME OF ARREST” RULE WHEN THE TERRY STOP RIPENED INTO A LAWFUL ARREST OVER A PERIOD OF TEN MINUTES State v. Brock, ___Wn.2d ___, 355 P.3d 1118 (Sept. 3, 2015).…………………………..8

TWO RULINGS REGARDING SEARCH WARRANT FOR BLOOD IN DUI CASE: (1) AFFIDAVIT ESTABLISHED PROBABLE CAUSE TO SEARCH DUI ARRESTEE’S BLOOD FOR BOTH ALCOHOL AND DRUGS; AND (2) SEARCH WARRANT AUTHORIZED TESTING OF ARRESTEE’S BLOOD EVEN THOUGH THE WARRANT DID NOT EXPRESSLY SAY SO State v. Martines, ___Wn.2d ___, 355 P.3d 1111 (Aug. 27, 2015).……………………….13


BRIEF NOTES FROM THE WASHINGTON STATE SUPREME COURT..……………18 UNDER BRADY V. MARYLAND, THE STATE’S FAILURE TO DISCLOSE THAT CRIME LAB SCIENTIST HAD BEEN FIRED FROM LAB FOR BAD JOB PERFORMANCE WAS EXCULPATORY AND SHOULD HAVE BEEN DISCLOSED TO THE CRIMINAL DEFENDANT, BUT SUCH EVIDENCE WAS NOT MATERIAL State v. Davila, ___Wn.2d ___, 2015 WL 5076293 (August 27, 2015)…………………18 PUBLIC RECORDS ACT: PERSONAL CELLPHONE OF PUBLIC EMPLOYEE IS SUBJECT TO DISCLOSURE WHEN USED TO CONDUCT PUBLIC BUSINESS Nissen v. Pierce County, ___Wn.2d ___, 2015 WL 5076297 (Aug. 27, 2015)..………19 BRIEF NOTES FROM THE WASHINGTON STATE COURT OF APPEALS.…………20 IMPLIED CONSENT LICENSE REVOCATION FOR REFUSING BREATH TEST: CERTIFIED REPORT REQUIREMENT MET WHERE ARRESTING OFFICER’S UNCERTIFIED REPORT ACCOMPANIED THE CERTIFIED REPORT THAT WAS SUBMITTED BY TROOPER WHO ADMINISTERED IMPLIED CONSENT WARNINGS Department of Licensing v. Watkins, 187 Wn. App. 591 (Div II, May 12, 2015)….……20 DEADLY ASSAULT IS A PREDICATE OFFENSE UNDER SECOND DEGREE MURDER STATUTE (RCW 9A.32.060) State v. McDaniel, 185 Wn. App. 932 (Div. II, Feb. 18, 2015)……………………………20

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LEGAL UPDATE FOR WASHINGTON LAW ENFORCEMENT TO BE ON WASPC WEBSITE

Beginning with the September 2015 issue, the most recent monthly Legal Update for

Washington Law Enforcement will be placed under the “LE Resources” link on the Internet

Home Page of the Washington Association of Sheriffs and Police Chiefs. In the coming months as new Legal Updates are issued, the current and three most recent Legal Updates will be accessible on the site. WASPC would then 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. 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.

*********************************** ANNOUNCEMENT: THE FOLLOWING MATERIALS BY JOHN WASBERG HAVE BEEN UPDATED THROUGH JULY 1, 2015 AND ARE AVAILABLE ON THE CRIMINAL JUSTICE TRAINING COMMISSION’S INTERNET LED PAGE UNDER “SPECIAL TOPICS” OUTLINE: “Law Enforcement Legal Update Outline: Cases On Arrest, Search, Seizure, And Other Topical Areas Of Interest to Law Enforcement Officers; Plus A Chronology Of Independent Grounds Rulings Under Article I, Section 7 Of The Washington Constitution” OUTLINE: “Initiation of Contact Rules Under The Fifth Amendment” ARTICLE: “Eyewitness Identification Procedures: Legal and Practical Aspects” These documents by John Wasberg (retired Senior Counsel, Office of the Washington State Attorney General) are updated at least once a year.

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NINTH CIRCUIT, UNITED STATES COURT OF APPEALS

MIRANDA CUSTODY: NEITHER QUESTIONING AT HOME DURING SEARCH WARRANT EXECUTION NOR QUESTIONING AT THE POLICE STATION IMMEDIATELY AFTER THE SEARCH WAS CUSTODIAL UNDER TOTALITY OF CIRCUMSTANCES TEST, BUT OFFICERS SHOULD BE AWARE OF THE RISKS OF “TACTICAL” UN-MIRANDIZED QUESTIONING

United States v. Cazares, ___ F.3d ___, 2015 WL ___ (9th Cir., May 14, 2015)

INTRODUCTORY EDITORIAL NOTE: There were four co-conspirators in this case, and the extensive facts relating to the various issues and the legal analysis of those issues are complicated and extensive. This Legal Update entry addresses only the facts and analysis relating to a Miranda issue applicable to just one of the co-conspirators.

Facts Relating to Miranda Issue: (Excerpted from Ninth Circuit opinion)

Saul Audelo, a suspect in the murder of Renee Cerda, was interviewed by police. Audelo admitted owning a 9 millimeter Ruger and said he sold it to defendant Saldana after the Cerda murder. Detectives investigating the Cerda murder obtained a search warrant for Saldana's residence in order to find the gun.


At 7:00 a.m. on May 6, 1999, police officers executed the search warrant at the home of Juana Saldana, Saldana's mother, where Saldana, his mother, brother, and sister lived. Saldana had just showered after returning home after working a double shift at Vandenburg Air Force Base. The other family members were sleeping. The officers moved all of the occupants into the living room where they were seated on the couch. The district court concluded on remand that Saldana was not handcuffed at any time. That factual finding in the face of conflicting evidence is not clearly erroneous. After the search, Saldana was moved into a bedroom where officers questioned him about the 9 millimeter Ruger. The officers then led Saldana out of the house and into a car. Saldana was given the option of driving his car to the police station or riding with Detective Gabriel Rivas. That any choice was given was denied by the defense, but the district court’s factual finding is not clearly erroneous. Saldana rode with the Detective to the Hollenbeck police station. Saldana was questioned by two or three officers in an 8 by 10 interview room at the station. A transcript of the recorded interview at the station shows he was told that he was not under arrest. Saldana admitted to purchasing a 9 millimeter firearm from Audelo, but said he no longer had the weapon. He was asked to find the weapon and contact Detective Rivas, which he agreed to do. During the police station questioning, detectives did not threaten or suggest to Saldana that he would be placed under arrest or prosecuted, nor did they brandish their weapons. The district court also found that no pressure or coercive tactics were employed by the detectives either during the search or the subsequent interviews. The district court also found that Saldana was told during the questioning he was free to leave the police station. There is no dispute that Saldana was not given Miranda warnings. Saldana was permitted to leave the interview room and the police station. The police later were informed that Saldana had participated in the Wilson murder and had used a 9 millimeter gun he obtained from another gang member. Subsequently, the gun was connected to both the Cerda and the Wilson murders.

Proceedings below: Saldana filed a pre-trial motion to suppress his statements made in the May 6, 1999 interview at the police station. After hearings, the District Court denied the motion to suppress. After a jury trial, the four defendants in the conspiracy were convicted of several charges

ISSUE AND RULING: Where the totality of the circumstances included the police questioning Saldana at his home during execution of a search warrant and also included the police questioning Saldana a short while later at the stationhouse, was Saldana in custody for Miranda purposes such that Miranda warnings were required at some point in the process of questioning him? (ANSWER BY THREE-JUDGE NINTH CIRCUIT PANEL: No)

Result: Affirmance of U.S. District Court (Central District of California) convictions of (1) Fernando Cazares, Gilbert Saldana, Alejandro Martinez, and Porfirio Avla, all members of the Avenues 43 Latino street gang, for violating federal law by conspiring to intimidate African-


American citizens in the Highland Park neighborhood of Los Angeles and to deprive them of their constitutional right to “purchase, lease and hold real and personal property, and the right to occupy a dwelling, free from intimidation based on race”; and (2) Cazares, Saldana, and Martinez for violating federal law by shooting Kenneth Kurry Wilson, an African-American man, because of his race and color, and because he was enjoying facilities provided and administered by a subdivision of the State; and also violating federal law by using firearms to kill Wilson while carrying out the charged conspiracy.

ANALYSIS: (Excerpted from Ninth Circuit opinion)

In Miranda v. Arizona, the Supreme Court established that, when a person is “in custody,” procedural safeguards must be afforded that person before the person is questioned. Otherwise, the prosecution may not use what it learns through its interrogation. The Court reasoned that the privilege against self-incrimination is protected by adequately and effectively advising an individual of his or her rights. It is undisputed that Saldana was not read or told of his Miranda rights before, during, or after the interview on May 6, 1999. The question is whether Saldana was “in custody” while being questioned. “To determine whether an individual was in custody, a court must, after examining all of the circumstances surrounding the interrogation, decide whether there [was] a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” . . . . The court must “examine the totality of the circumstances surrounding the interrogation.” U.S. v. Craighead, 539 F.3d 1073 (9th Cir. 2008) Oct 08 LED:04. A defendant is in custody if a “reasonable innocent person in such circumstances would conclude that after brief questioning he or she would not be free to leave.” . . . . The custody determination is objective and is not based upon “the subjective views of the officers or the individual being questioned.” . . . . Facts relevant to the determination of whether a person is in custody “include the language used by the officers, the physical characteristics of the place where the questioning occurs, the degree of pressure applied to detain the individual, the duration of the detention, and the extent to which the person was confronted with evidence of guilt.” . . . . Discussion There are factual disputes concerning the circumstances of the interview at the police station. The record indicates that the audiotape or recording of the interview may be incomplete. Saldana was told “you were not under arrest,” but the transcript of the recording does not reflect that Saldana was told he was free to leave but on remand the district court found that Saldana was told he was free to leave while at the police station. The language used by the officers in the taped interview at the police station was neutral even though it did direct the questioning. There is no showing of other language being used previously at the home of Saldana’s mother where he lived. Three or four officers took Saldana to another room for an initial questioning while the search went on. There were at least 10 officers participating in the search, with at least 7 of them in the house with a number of police cars parked in the street. The police station interview room was small, about 8 by 10 feet, and there were two and sometimes three


officers in the room. Saldana drank one cup of coffee and was offered a second cup of coffee. The recorded interview was about 10 minutes long and the interview may have started before the recording device was activated. Saldana was not confronted with evidence of guilt as the officers stated they only wanted to get the gun. As a convicted felon, Saldana would be incriminating himself by merely admitting he had possessed the handgun. But that was not the focus of the search nor of the questioning. The factual finding on conflicting evidence is that there was no detention. It is about a 30 minute drive from the house to the police station. Finally, there was no pressure applied to detain Saldana. Under the facts as found by the district court, and after examining all of the circumstances surrounding the questioning, there was no formal arrest or restraint of freedom of movement of the degree associated with formal arrest. The defense claims it is inconceivable that the LAPD would not place a convicted murderer in handcuffs while they conducted an early morning search at his home. The district court has the best opportunity to both hear and observe the witnesses and to judge their credibility. Based upon the findings of the district court, Defendant Saldana was never in custody and was not entitled to a Miranda warning. His statements to the LAPD were properly admissible.

[Some citations omitted, other citations revised for style] (1) General comments about “tactical” un-Mirandized questioning I recognize that officers will sometimes make a considered decision, based on all of the circumstances and on their training and experience, that un-Mirandized questioning will be more fruitful. This is a difficult decision for officers, because the test for “custody” is an unpredictable, totality of the circumstances test. It seems a very risky legal call where police transport and stationhouse questioning is involved, as it was in this case. When officers make that difficult decision, extra effort must be made to make clear to the suspect that the circumstances of questioning are non-custodial. In that regard, we think that officers are on pretty thin ice in conducting such un-Mirandized interrogations at the police station unless they first tell their suspects (who, by definition under our assumed scenario, are voluntarily there in the first place) that the suspects do not have to answer the questions and that they can leave at any time. Officers conducting such “tactical” un-Mirandized questioning also should be prepared to allow the suspect to leave after the questioning is completed except where that is unreasonable in light of public safety concerns learned in the course of questioning (at which point officers should Mirandize before proceeding with questioning). (2) Custody-determination factors As I have done from time to time in the past in discussing cases involving the Miranda custody issue, I close this commentary with a non-exhaustive list of some of the things, in addition to age of a juvenile suspect and whether, during an interrogation, a juvenile suspect was isolated from a parent or other person accompanying him or her, that courts consider in trying to determine whether, balancing all of the objectively evaluated circumstances in their totality, Miranda custody exists –


Whether the officers informed the suspect that he or she was not under arrest and was free to leave at any time;

Whether the officers informed the suspect that he or she did not have to answer their questions;

Whether the suspect expressly consented to speak with law enforcement officers;

The place of interrogation (e.g., how private or public was the setting), and, if a police station, the manner in which the suspect was transported to the station;

The announced or objectively obvious purpose of the questioning;

Whether the suspect was involuntarily moved to another area prior to or during the questioning;

Whether there was a threatening presence of several officers, the locking or blocking of a door, and/or a display of weapons or physical force;

Whether the officers deprived the suspect of documents or other things that would be not needed to continue on one’s way;

The length of the interrogation;

The manner, tenor and tone of interrogation (e.g., friendly, low key and non-leading vs. accusatory, confrontational and leading);

Whether the officers revealed to the suspect that he or she was the focus of their investigation and/or confronted him or her with incriminating evidence;

Whether the officers used deception in the questioning;

Whether the officers allowed the suspect to leave at the end of the questioning.

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BRIEF NOTE FROM THE NINTH CIRCUIT, U.S. COURT OF APPEALS CIVIL RIGHTS ACT CIVIL LIABILITY: NINTH CIRCUIT UPHOLDS LOWER COURT ORDERS TO OFFICERS DIRECTING THEM TO PROVIDE DNA SAMPLES TO EXCLUDE THEM AS CONTRIBUTORS OF DNA AT CRIME SCENE – In Bill v. Brewer, ___F.3d ___, 2015 WL ___ (9th Cir., August 31, 2015), a three-judge Ninth Circuit panel affirms the U.S. District Court’s dismissal of an action brought by three Phoenix police officers who alleged that two other officers violated the Fourth and Fourteenth Amendments when, pursuant to a state court order, they obtained DNA samples from the plaintiffs to exclude them as contributors of DNA at a scene where investigators were attempting to determine if a dead law enforcement officer: (1) was the victim of a homicide staged to look like a suicide, or (2) committed suicide and staged the suicide to look like a homicide. The panel holds that the state superior court orders authorizing the collection of plaintiffs’ DNA satisfied the Warrant Clause of the Fourth Amendment. The panel further holds that it was not unreasonable, under the circumstances, to ask sworn officers to provide saliva samples for the sole purpose of demonstrating that the DNA left at the possible crime scene was not the result of inadvertent contamination by the many on-duty public safety personnel who were at the scene at some point in the intensive investigation. Result: Affirmance of U.S. District Court (Arizona) order dismissing the lawsuit.

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WASHINGTON STATE SUPREME COURT

8-1 MAJORITY HOLDS THAT BACKPACK TAKEN FROM SUSPECT AT START OF TERRY STOP AUTOMATICALLY BECAME SUBJECT TO SEARCH INCIDENT TO ARREST UNDER THE “TIME OF ARREST” RULE WHEN THE TERRY STOP RIPENED INTO A LAWFUL ARREST OVER A PERIOD OF TEN MINUTES State v. Brock, ___Wn.2d ___, 355 P.3d 1118 (September 3, 2015) Facts and Proceedings below: (Excerpted from Supreme Court majority opinion)

Early in the morning, at approximately 3 a.m. on May 21, 2008, [an officer of the Seattle Police Department] was patrolling Golden Gardens Park when he noticed the men’s restroom door was open and the lights were on. The park was closed and had been since 11:30 p.m. As he approached the men’s room, the officer could see a person's legs inside the stall. [The officer] waited approximately 10 minutes before Brock emerged, wearing baggy clothing and carrying a backpack. [The officer] identified himself as an officer and informed Brock that he was not allowed in the park. Although [the officer] had probable cause to arrest Brock for trespass at that moment, he did not. Instead, he had Brock remove his backpack and performed a Terry stop and frisk. [The officer] did not feel a wallet during the frisk. Brock explained that he did not have any identification but provided [the officer] with a name, Dorien Halley, and a corresponding birthdate and Social Security number. [The officer] directed Brock to follow him to his patrol truck so he could run his name through the Washington database. For safety purposes, [the officer] carried the backpack and placed it on the passenger seat of his vehicle while Brock stood 12 to 15 feet away on the curb. [The officer] reminded Brock he was not under arrest at that time but that he was also not yet free to go. Brock indicated that he had a California license instead of a Washington license, so [the officer] ran the name through both the Washington and California databases. Neither search yielded any results. At that point, [the officer] read Brock his Miranda rights and arrested Brock for providing false information but explained to Brock that “he wasn’t necessarily going to jail.” Because Brock had been cooperative, [the officer] did not use handcuffs and instructed Brock just to remain near the curb while he returned to his truck to search the backpack for identification. [the officer] considered the backpack search “a search of Brock's person incident to arrest” for providing false information. In searching the backpack, [the officer] discovered a wallet containing two small “baggies” of what appeared to be marijuana and methamphetamine. He also found a Department of Corrections (DOC) inmate identification card displaying Brock’s photograph and identifying him as Antoine L. Brock. [The officer] walked back over to Brock, handcuffed him, and put him in the back of his patrol truck. [The officer] estimated that the entire encounter, from the time of the initial contact to the time he handcuffed Brock, was about 10 minutes.


[The officer] then ran Brock’s real name through the database and discovered that Brock had a DOC felony arrest warrant. Once Washington State Patrol confirmed the warrant, [the officer] had no choice but to take Brock to jail. Before doing so, [the officer] emptied the contents of the backpack in what he considered an inventory search prior to taking Brock to jail for booking. [The officer] explained that for safety reasons, he could not bring the backpack to the jail without first performing a search of the arrestee’s personal effects for weapons or explosives. In his search, [the officer] discovered numerous checks, credit cards, mail, and more baggies possibly containing narcotics. Based on this evidence, the State charged Brock with 10 counts of identity theft in the second degree, 3 counts of forgery, and violation of the Uniform Controlled Substances Act, chapter 69.50 RCW. Brock moved to suppress the evidence discovered in his backpack, which the trial court denied, concluding that the search was a valid search incident to arrest. Brock agreed to a stipulated facts bench trial and was found guilty on all counts except on one count of identity theft. Brock appealed, challenging the trial court's suppression ruling under article I, section 7 of the Washington State Constitution. The State responded that the search was a valid search of Brock's person. The Court of Appeals reversed Brock’s conviction, agreeing with Brock that it was not a valid search of his person under article I, section 7 because Brock did not have actual, exclusive possession of the backpack “immediately preceding” arrest. [State v. Brock, 182 Wn. App. 680 (2014) Oct 14 LED:22.

[Footnotes and some citations omitted] ISSUE AND RULING: Where the officer took the backpack from Brock’s person at the start of a Terry stop and put the backpack in the officer’s vehicle, was the backpack automatically subject to search incident to arrest under the “time of arrest” rule 10 minutes later when the Terry stop ripened into an arrest? (ANSWER BY SUPREME COURT: Yes, rules an 8-1 majority) Result: Reversal of Court of Appeals decision that reversed the King County Superior Court convictions of Antoine Lamont Brock for nine counts of identity theft, three counts of forgery, and one count of violation of the Uniform Controlled Substances Act; in other words, the convictions are affirmed by the Washington Supreme Court. ANALYSIS: (Excerpted from Supreme Court majority opinion)

Article I, section 7 of the Washington State Constitution provides for broad privacy protections for individuals and generally prohibits unreasonable police invasions into personal affairs. We presume that a warrantless search of an individual's personal item, such as a backpack, violates these protections unless the search falls within “one of the few ‘carefully drawn and jealously guarded exceptions.’” State v. Byrd, 178 Wn.2d 611 616 (2013) Dec 13 LED:12 . . . . One such exception is a search incident to arrest, in which the arresting officer has authority to search the arrestee's person and his or her personal effects. There are two discrete types of searches incident to arrest: (1) a search of the arrestee's person (including those personal effects immediately associated with


his or her person-such as purses, backpacks, or even luggage) and (2) a search of the area within the arrestee's immediate control. A valid search of the latter requires a justification grounded in either officer safety or evidence preservation – there must be some articulable concern that the arrestee can access the item in order to draw a weapon or destroy evidence. Byrd . . . . The former search does not; in analyzing the search of an arrestee, we utilize the United States Supreme Court's rationale from Fourth Amendment that “a search may be made of the person of the arrestee by virtue of the lawful arrest.” Byrd. In such cases, we presume that safety and evidence justifications exist when taking those personal items into custody as part of the arrestee's person. The distinction as to whether a particular personal item constitutes part of the arrestee’s person, as opposed to just part of the surrounding area, turns on whether the arrestee had “actual and exclusive possession at or immediately preceding the time of arrest.” Byrd. This is known as the “time of arrest” rule. We have previously applied this rule in cases involving an arrestee who was holding the personal item at the precise moment of arrest. But here, because Brock was separated from his backpack several minutes prior to arrest, the issue involves the scope of “immediately preceding arrest.” In Byrd, we analyzed this “time of arrest” distinction between items that are part of the arrestee’s “person” and items merely within the arrestee’s immediate control. Byrd involved the validity of a warrantless search of a car passenger’s purse. At the time of arrest, Byrd held the purse in her lap, but when ordered to step out of the car, she asked to leave the purse in the car. The officers refused and seized her purse as part of the arrest. The purse was removed and searched separate from her person. We recognized that her physical distance from the bag dispelled any practical concerns that she could have reached the purse to draw a weapon or destroy evidence, but we upheld the search as a search of her “person.” Unlike items in the immediately surrounding area, the officer does not need to articulate any objective safety or evidence preservation concerns before validly searching the item. We said that the officer’s authority to search the purse flowed “from the authority of [the] custodial arrest itself.” Byrd. This authority satisfies article I, section 7’s requirement that the incursions into private affairs be supported by “authority of law.” Byrd. The arrest provides the constitutional authority of law justifying the search. A second underlying justification for this “part of the person” distinction is that there are presumptive safety and evidence preservation concerns associated with police taking custody of those personal items immediately associated with the arrestee, which will necessarily travel with the arrestee to jail. We said:

The time of arrest rule reflects the practical reality that a search of the arrestee’s “person” to remove weapons and secure evidence must include more than his literal person. . . . When police take an arrestee into custody, they also take possession of his clothing and personal effects, any of which could contain weapons and evidence.

Brock conflates the "time of arrest" distinction by arguing that his physical separation from the backpack vitiated any practical safety or evidence


preservation concerns associated with the backpack because he could not reach it, and that the United States Supreme Court's ruling in Gant and our ruling in [State v. Valdez, 169 Wn.2d 761 (2009)] require that safety and evidence preservation concerns justify the search incident to arrest. However, as we recognized in Byrd [ ] the decisions in Gant or Valdez [do not] restrict the lawful search of an arrestee’s person; there is no requirement that the arrestee be within the reach of the personal item once it is seized as part of the lawful arrest. We rejected Byrd's argument that her inability to access her purse affects the analysis. We applied this same analysis in State v. MacDicken, 179 Wn.2d 936 (2014) April 14 LED:10, where we upheld the validity of a search of the arrestee’s luggage, even when the luggage was moved a full car length’s away from the arrestee’s reach. When the personal item is taken into custody as a part of the arrestee’s person, the arrestee’s ability to reach the item during the arrest and search becomes irrelevant. Rather, the safety and evidence preservation exigencies that justify this “time of arrest” distinction stem from the safety concerns associated with the officer having to secure those articles of clothing, purses, backpacks, and even luggage, that will travel with the arrestee into custody. Because those items are part of the person, we recognize the practical reality that the officer seizes those items during the arrest. From that custodial authority flows the officer’s authority to search for weapons, contraband, and destructible evidence. In determining the scope of the phrase “immediately preceding,” the Court of Appeals focused on the temporal component – the time between Brock’s exclusive possession and his arrest – and determined that he did not possess the backpack “immediately” before arrest because it sat in the patrol truck for nearly 10 minutes before Brock was arrested. The court distinguished these facts from [two] other Washington cases where the arrestee’s belongings were separated from the arrestee for a shorter period of time prior to the arrest. . . . . The reviewing courts [in those two cases] did not identify the exact duration, but it appears that in both cases at least a few minutes elapsed between separation and arrest. In this case, the Court of Appeals found the difference between a few minutes and approximately 10 minutes dispositive. In so holding, the court reiterated that the search incident to arrest exception is narrow and that 10 minutes simply cannot similarly be considered “immediately preceding” arrest. The Court of Appeals’ analysis misapprehends the purpose of the time of arrest rule. Although we must draw these exceptions to the warrant requirement narrowly, we do not draw them arbitrarily; the exception must track its underlying justification. Because the search incident to arrest rule recognizes the practicalities of an officer having to secure and transport personal items as part of the arrestee’s person, we draw the line of “immediately preceding” with that focus. The proper inquiry is whether possession so immediately precedes arrest that the item is still functionally a part of the arrestee’s person. Put simply, personal items that will go to jail with the arrestee are considered in the


arrestee's “possession” and are within the scope of the officer’s authority to search. Under these circumstances, the lapse of time had little practical effect on Brock’s relationship to his backpack. Brock wore the backpack at the very moment he was stopped by [the officer]. The arrest process began the moment [the officer] told Brock that although he was not under arrest, he was also not free to leave. The officer himself removed the backpack from Brock as a part of his investigation. And, having no other place to safely stow it, Brock would have to bring the backpack along with him into custody. Once the arrest process had begun, the passage of time prior to the arrest did not render it any less a part of Brock’s arrested person. We hold that when the officer removes the item from the arrestee’s person during a lawful Terry stop and the Terry stop ripens into a lawful arrest, the passage of time does not negate the authority of law justifying the search incident to arrest.

[Footnotes and some citations omitted; other citations revised for style] DISSENT: Justice Cheryl Gordon McCloud is alone in dissent. The final paragraph of her dissent sums up her argument as follows:

This holding ignores the strict limitations imposed on law enforcement during a Terry stop, confuses the justifications for a Terry frisk with the justifications for a search incident to arrest, and conflicts with our precedent holding that a full custodial arrest is a prerequisite to any search incident to arrest. I fear the majority’s new rule will only invite further expansions of our “narrow” and “jealously guarded” exception to the warrant requirement.

[Footnotes and citations omitted] EDITORIAL NOTE REGARDING SEPTEMBER 2015 LED ENTRY ON THIS DECISION: The Brock decision is addressed in the CJTC’s September 2015 Law Enforcement Digest at pages 6-8. EDITORIAL COMMENTS: 1. Commentary on Byrd and MacDicken in the LED. Readers may want to go to Law Enforcement Digest comments on Byrd (December 2013 LED) and MacDicken (April 2014 LED). Those comments still raise valid points and concerns, except for the query regarding the scenario presented in Brock, which query has now been answered by the Supreme Court decision digested here. Officers should use caution use caution and not over-read the authority apparently granted in the Brock decision. 2. The dissent has a plausible point in noting the Washington Supreme Court precedent requires a full custodial arrest prior to any search incident to arrest. It seems to me that an officer in process who has not yet decided whether take an arrestee to jail, can, under the law, legally still put the arrestee in handcuffs in the backseat of a patrol vehicle before searching a backpack or other items taken off the person of the arrestee. Officers


would remain free, after searching the item, to exercise their discretion to take off the cuffs and send the now un-arrested person on his or her way. 3. It is still possible that the U.S. Supreme Court will hold in the future that Arizona v. Gant applies in non-vehicle situations. The Washington Supreme Court in Byrd, MacDicken and now Brock has concluded, without citing any supporting authority outside of Washington state courts, that the rule of Arizona v. Gant is limited to precluding (with one exception) the automatic search of a vehicle incident to arrest once the arrestee has been secured and does not pose a risk to evidence or others. Thus, the Washington Supreme Court has concluded that the effect of Gant is limited to vehicle searches, not searches of items on the person of the arrestee immediately prior to arrest. Some federal circuit court decisions disagree, as did the decision of the Ninth Circuit’s three-judge panel in United States v. Cook. ___F.3d ___, 2015 U.S. App. LEXIS 14195 (9th Cir., August 13, 2015). In Cook, the Ninth Circuit panel asserted that the focus in Gant was not on searching of vehicles, but instead the focus was on the fact that the arrestee did not pose a risk to the evidence or officers after he was secured in a patrol car. Thus, the Cook panel declared that Gant is not limited to vehicle searches but applies to all searches incident to arrest. The Cook panel ultimately upheld a search incident to arrest of the bag carried by the arrestee. But the panel did so only after concluding that, despite being prone and in handcuffs, the arrestee still posed a risk, under the totality of the circumstances of that case, of getting up and accessing the bag for a weapon or to destroy evidence. Because of the continuing uncertainty under the Fourth Amendment, officers should consider seeking consent before proceeding with the automatic search incident to arrest in the Brock scenario (not telling the arrestee that the officers plan to search even if the arrestee denies consent). And, if probable cause exists to search the backpack or other container/item taken from the person of the arrestee, officers should consider securing the container/item and seeking a search warrant. Also, in writing the report following a search incident to arrest, officers should include all facts, if any exist, that support the possibility that, at the time of the search, the arrestee posed a risk of accessing the item/container and destroying evidence or harming the officers or others. 4. Remember that special rules apply to searches of personal phones. Just a reminder that cell phones, lap tops and other electronic date devices have special privacy protection and therefore are generally not searchable under the search incident rule. Riley v. California, 134 S.Ct. 2473 (2014) Aug 14 LED:04; State v. Hinton, 179 Wn.2d 862 (2014) May 14 LED:08; State v. Roden, 179 Wn.2d 893 (2014) May 14 LED:08. TWO RULINGS REGARDING SEARCH WARRANT FOR BLOOD IN DUI CASE: (1) AFFIDAVIT ESTABLISHED PROBABLE CAUSE TO SEARCH DUI ARRESTEE’S BLOOD FOR BOTH ALCOHOL AND DRUGS; AND (2) SEARCH WARRANT AUTHORIZED TESTING OF ARRESTEE’S BLOOD EVEN THOUGH THE WARRANT DID NOT EXPRESSLY SAY SO State v. Martines, ___Wn.2d ___ , 2015 WL ___ (Aug. 27, 2015 Facts and Proceedings below: (Excerpted from the Supreme Court opinion)

On June 16, 2012, officers observed Martines driving his vehicle erratically on State Route 167. Martines’s car veered into another car, swerved into the


median, and rolled over. An off-duty Tukwila detective saw the collision and drove to the accident site. The detective observed that Martines was stumbling, had slurred speech, and smelled like beer. The detective, along with other witnesses, observed Martines crawl back into his vehicle, retrieve a bag, and throw it into a ditch. Martines later engaged in an altercation with a passenger from the other car. A King County Sheriff’s deputy arrived, and the deputy and the detective placed Martines in handcuffs. A Washington State trooper arrived to the scene moments later, interviewed witnesses, and was debriefed by the detective. The trooper took custody of Martines and informed him he was under arrest for suspicion of DUI. The trooper observed Martines had red, bloodshot eyes and smelled of alcohol. Martines told the trooper he drank “one Blue Moon” beer that night. The trooper located a bag in a nearby ditch containing a Blue Moon cardboard six-pack container with only one unopened beer bottle. The trooper sought a search warrant to extract a blood sample from Martines at a local hospital. His affidavit for probable cause stated:

A sample of Martines, Jose Figeroa’s blood, if extracted within a reasonable period of time after he/she last operated, or was in physical control of, a motor vehicle, may be tested to determine his/her current blood alcohol level and to detect the presence of any drugs that may have impaired his/her ability to drive . . . . The Legislature has specifically authorized the use of search warrants for blood in cases in which the implied consent statute applies. See RCW 46.20.308(1) (“Neither consent nor this section precludes a police officer from obtaining a search warrant for a person’s breath or blood.”) . . . . Therefore, I request authority to cause a sample of blood, consisting of one or more tubes to be extracted from the person of Martines, Jose Figeroa by a physician . . . .

The trooper obtained a warrant authorizing the “extraction” of a blood sample from Martines. The warrant indicated probable cause existed to believe Martines’s blood contained evidence of the crime of DUI under RCW 46.61.502. The warrant did not include any express reference to testing of the blood sample. Pursuant to the search warrant, a blood sample was drawn from Martines at a local hospital. The Washington State Patrol Toxicology Laboratory tested the sample for the presence of alcohol and drugs. The test results indicated Martines had a BAC of 0.061 and 0.062 at the time of the testing, which the toxicologist estimated would have been 0.121 two hours after the accident. Martines’s blood also contained 0.05 milligrams per liter of diazepam, a central nervous depressant and active ingredient in Valium, and 0.03 milligrams per liter of nordiazepam, also a nervous system depressant and metabolite of diazepam. Martines had been previously convicted of vehicular assault while driving under the influence of an intoxicant, a predicate offense for felony DUI under RCW 46.51.502(6)(b)(ii). The State charged Martines with felony DUI.


Martines moved to suppress all evidence of drugs or drug testing. He argued there was no probable cause to test his blood sample for drugs because witnesses observed only signs of alcohol intoxication. The State objected, arguing that in a DUI context, testing seeks to determine the existence of an impairing substance, which may be alcohol, drugs, or a combination of both. Further, the State argued that once it obtains a blood sample through a lawful search, it may test the sample for anything it deems appropriate. The trial court denied Martines’s motion. The court held that if probable cause exists to test for either alcohol or drugs, then probable cause exists to test for both. The evidence of alcohol and drugs in Martines’s blood was admitted at trial, and the jury found Martines guilty of felony DUI. On appeal, Martines raised a new issue of constitutional magnitude, arguing that the blood test constituted a separate intrusion requiring specific authorization. He retreated from his earlier concession that the warrant authorized the blood test for alcohol. The Court of Appeals reversed Martines’s conviction. See Sept 14 LED:15. Relying on Skinner v. Railway Labor Executive's Ass'n, 489 U.S. 602 (1989), the court held that testing of a blood sample constitutes a separate search that requires express authorization. The court reasoned that testing of a blood sample “intrudes upon a privacy interest that is distinct from the privacy interests in bodily integrity and personal security that are invaded by a physical penetration of the skin.” The court held that the warrant did not authorize testing at all and therefore the toxicology tests were an unlawful warrantless search.

ISSUES AND RULINGS: (ISSUE 1) The trooper included the following observations in his affidavit of probable cause: (1) Martines had a strong odor of alcohol coming from his breath; (2) Martines said he had one Blue Moon beer, (3) Martines was observed throwing a bag into the bushes containing a six-pack container of beer with one unopened beer bottle, which the trooper later recovered; (4) Martines had blood shot watery eyes; (5) Martines had a flush face, (6) Martines walked in a slow and deliberate manner, (7) Martines seemed off balance and struck the door frame as he entered the patrol car. Did the search warrant affidavit establish only probable cause to to search the blood for alcohol and fail to establish probable cause to search the blood for drugs? (ANSWER BY UNANIMOUS WASHINGTON SUPREME COURT: The affidavit established probable cause to search the defendant’s blood for both alcohol and drugs) (2) Did the search warrant fail to authorize any testing of the blood because the warrant did not expressly address testing of the blood? ((ANSWER BY UNANIMOUS WASHINGTON SUPREME COURT: The search warrant implicitly authorized testing of the blood, and such implicit authorization is sufficient) Result: Reversal of Court of Appeals decision that reversed King County Superior Court conviction of Jose Figeroa Martines for driving while under the influence; in other words, Martines’ King County Superior Court conviction is affirmed. ANALYSIS: (Excerpted from Supreme Court opinion) 1. Did the affidavit establish probable cause to search the blood only for alcohol, not drugs


[Martines] argues probable cause did not exist to believe he was under the influence of drugs, as opposed to alcohol. Martines notes the affidavit did not include any statement, fact, or suspicion that he was specifically suspected of drug intoxication. He argues that probable cause to suspect drug intoxication must be identified separately from probable cause to suspect alcohol intoxication. As noted, the Court of Appeals did not address this argument. We find the argument unconvincing. It ignores that an officer may suspect a driver to be under the influence of alcohol or drugs, or a combination of both. The implied consent statute expressly contemplates this:

A person is guilty of driving while under the influence of intoxicating liquor, marijuana, or any drug if the person drives a vehicle within this state: (a) And the person has, within two hours after driving, an alcohol concentration of 0.08 or higher as shown by analysis of the person's breath or blood made under RCW 46.61.506; or (b) The person has, within two hours after driving, a THC [(tetrahydrocannabinol)] concentration of 5.00 or higher as shown by analysis of the person's blood made under RCW 46.61.506; or (c) While the person is under the influence of or affected by intoxicating liquor, marijuana, or any drug; or (d) While the person is under the combined influence of or affected by intoxicating liquor, marijuana, and any drug.

RCW 46.61.502(1) (emphasis added). The warrant in this case was supported by probable cause to believe that Martines committed DUI and that evidence of alcohol or drug consumption would be found on his person. The trooper included the following observations in his affidavit of probable cause: (1) Martines had a “strong odor of alcohol coming from his breath,” (2) “[Martines] said he had one Blue Moon [beer],” (3) Martines was observed throwing a bag into the bushes containing a six-pack container of beer with one unopened beer bottle, which the trooper later recovered, (4) Martines had “blood shot watery eyes,” (5) Martines had “a flush face,” (6) "[Martines] walked in a slow and deliberate manner,” (7) “[Martines] seemed off balance and struck the door frame as he entered the [patrol] car.” While the first three observations relate directly to alcohol intoxication, the remaining observations support a finding of probable cause to believe that Martines was under the influence of intoxicants - - alcohol or drugs, or a combination of both. Further, the trooper may have believed Martines’s impairment was caused, in part, by drugs, since Martines stated he had only “one” beer. Lastly, the trooper’s affidavit stated his special experience and expertise in detecting the effects of alcohol and drug impairment.


Martines cites State v. Baldwin, 109 Wn. App. 516 (2001) Sept 02 LED:18, for the proposition that probable cause needs to be separately identified for drugs and alcohol in DUI cases. Martines is partially correct. Baldwin stands for the proposition that if alcohol is ruled out as the cause of impairment, a blood draw still requires probable cause to suspect drugs caused the impairment, at least in part. Thus, if alcohol is not suspected as a cause of impairment, drug intoxication must be identified separately to draw blood. However, unlike in Baldwin, alcohol was not ruled out as the cause of Martines’s impairment. We reject Martines’s argument that probable cause to suspect drug intoxication must always be identified separately from probable cause to suspect alcohol intoxication. The affidavit here was sufficient.

2. Did the warrant authorize the testing of the blood even though it did not expressly say so?

Martines next argues that even if the warrant was supported by probable cause to suspect alcohol and drugs, it lacked particularity to authorize blood testing. The Court of Appeals accepted this argument, concluding the warrant’s language authorized only the drawing of a blood sample from Martines, not the testing of that sample for drugs or alcohol. The court reasoned that absent express authorization to test the blood, a vague warrant could potentially allow the State to “rummag[e]” the blood sample for evidence unrelated to DUI. We disagree. The Fourth Amendment and article I, section 7 of our state constitution require that “warrants describe with particularity the things to be seized.” . . . . This requirement “eliminates the danger of unlimited discretion in the executing officer’s determination of what to seize.” Courts examine the purpose of the “particular description” requirement to determine whether the description is valid. These purposes include (1) preventing exploratory searches, (2) protecting against “seizure of objects on the mistaken assumption that they fall within” the warrant, and (3) ensuring that probable cause is present. The warrant in this case authorized the “extraction]” of a blood sample from Martines, indicating probable cause existed to believe his blood contained evidence of DUI. The purpose of the warrant was to draw a sample of blood from Martines to obtain evidence of DUI. It is not sensible to read the warrant in a way that stops short of obtaining that evidence. A warrant authorizing a blood draw necessarily authorizes blood testing, consistent with and confined to the finding of probable cause. The only way for the State to obtain evidence of DUI from a blood sample is to test the blood sample for intoxicants. See State v. Grenning, 142 Wn. App. 518 (2008) March 08 LED:15 (“[I]t is generally understood that a lawful seizure of apparent evidence of a crime using a valid search warrant includes a right to test or examine the seized materials to ascertain their evidentiary value.”). The court erred in concluding the warrant was fatally deficient. The warrant in this case was supported by probable cause to believe Martines’s blood contained evidence of DUI. We apply a commonsense reading to the warrant and conclude it authorized not merely the drawing and storing of a blood sample but also the toxicology tests performed to detect the presence of drugs or alcohol. . . .


Lastly, the State argues the search was executed within the scope of the warrant because it acted reasonably in testing the blood sample. Martines does not address the permissible scope of the search, resting his arguments on the warrant's lack of probable cause and particularity. We emphasize that police “must execute a search warrant strictly within the bounds set by the warrant.” . . . The nature of the items to be seized governs the permissible degree of intensity for the search . . . . Here, the warrant referred to the extraction of a blood sample from Martines to obtain evidence of DUI. As discussed above, a warrant authorizing extraction of a blood sample necessarily authorizes testing of that sample for evidence of the suspected crime. The search in this case did not exceed the bounds of the search warrant when a sample of Martines’s blood was extracted and tested for intoxicants.

Concluding paragraph of opinion We reverse the Court of Appeals. We hold that a warrant authorizing the testing of a blood sample for intoxicants does not require separate findings of probable cause to suspect drug and alcohol use so long as there is probable cause to suspect intoxication that may be caused by alcohol, drugs, or a combination of both. We further hold that the search warrant authorized testing Martines’s blood sample for intoxicants because it authorized a blood draw to obtain evidence of DUI.

EDITORIAL NOTE REGARDING SEPTEMBER 2015 LED ENTRY ON THIS DECISION: The Brock decision is addressed in the CJTC’s September 2015 Law Enforcement Digest at pages 2-3. EDITORIAL COMMENT: Common sense militated in favor of interpreting the warrant as authorizing the testing of the blood for alcohol and drugs. Common sense, however, would militate against interpreting such a warrant as authorizing testing the blood for purposes of another type of investigation, such as DNA testing for a rape case.

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BRIEF NOTES FROM THE WASHINGTON STATE SUPREME COURT (1) UNDER BRADY V. MARYLAND, THE STATE’S FAILURE TO DISCLOSE THAT CRIME LAB SCIENTIST HAD BEEN FIRED FROM LAB FOR BAD JOB PERFORMANCE WAS EXCULPATORY AND SHOULD HAVE BEEN DISCLOSED TO THE CRIMINAL DEFENDANT, BUT SUCH EVIDENCE WAS NOT MATERIAL – In State v. Davila, ___Wn.2d ___, 2015 WL 5076293 (August 27, 2015), the Washington Supreme Court rules that the State’s failure to disclose that a forensic scientist who initially analyzed certain DNA evidence used in the defendant’s case had been fired for incompetence was improperly withheld by the State. This violated the State’s obligations under constitutional due process protections, as interpreted by the U.S. Supreme Court in Brady v. Maryland, 373 U.S. 83 (1963), to disclose exculpatory information to criminal defendants. Brady and subsequent Brady-based decisions hold that due process protections are violated and relief must be granted if (1) the government suppresses evidence, whether willfully or not;


(2) the suppressed evidence is impeaching or exculpatory; and (3) the suppressed evidence is material. Materiality is determined by assessing whether the failure to disclose the evidence to the defendant undermines confidence in the outcome of the trial. The Washington Supreme Court rules in Davila that the third element – materiality – for a Brady violation was not established by the defendant. Result: Affirmance of Spokane County Superior Court conviction of Julio D. Davila for second degree murder. EDITORIAL NOTE REGARDING SEPTEMBER 2015 LED ENTRY ON THIS DECISION: The Davila decision is addressed in the CJTC’s September 2015 Law Enforcement Digest at pages 3-5. EDITORIAL COMMENT: Note that not only suppression of evidence in criminal cases but also civil liability under the federal Civil Rights Act can result from violation of Brady. In criminal matters, law enforcement should provide to the prosecutor any information and evidence that is exculpatory or impeaching so that the prosecutor can determine whether Brady requires disclosure to the defendant. (2) PUBLIC RECORDS ACT: PERSONAL CELLPHONE OF PUBLIC EMPLOYEE IS SUBJECT TO DISCLOSURE WHEN USED TO CONDUCT PUBLIC BUSINESS – In Nissen v. Pierce County, ___Wn.2d ___, 2015 WL 5076297 (Aug. 27, 2015), the Washington Supreme Court rules that the personal cellphone of a public employee is subject to disclosure under chapter 42.56 RCW, the Washington Public Records Act, under some circumstances. The Supreme Court previously ruled that the PRA applies to personal computers of public employees when the computers are used to conduct official business. O’Neill v. City of Shoreline, 170 Wn.2d 138 (2010). The Nissen ruling expands on O’Neill, holding that communication on an employee’s personal cellphone that is “within the scope of employment” is subject to the PRA. On the other hand, purely personal communications that relate in some way to work are not subject to the PRA. Only those communications that are made “when the job requires it, the employer directs it, or it furthers the employer’s interests” are subject to the PRA. The Court recognizes that a great volume of private information is contained on many personal cellphones. The Court states that “the public’s statutory right to public records does not extinguish an individual’s constitutional rights to private information.” When performing a PRA search of a private cellphone, employees must search “their files, devices and accounts for records responsive to a relevant PRA request.” The employees “must produce any public records to the employer agency.” If an employee chooses to withhold a record from the employer, the employee “must submit an affidavit with facts sufficient to show the information is not a public record under the PRA.” Result: Affirmance in part of Court of Appeals decision that reversed the Thurston County Superior Court’s ruling for Pierce County; remand to Superior Court with instructions that will guide further proceedings in the case. EDITORIAL NOTE REGARDING SEPTEMBER 2015 LED ENTRY ON THIS DECISION: The Nissen decision is addressed in the CJTC’s September 2015 Law Enforcement Digest at pages 5-6.


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BRIEF NOTES FROM THE WASHINGTON STATE COURT OF APPEALS (1) IMPLIED CONSENT LICENSE REVOCATION FOR REFUSING BREATH TEST: CERTIFIED REPORT REQUIREMENT MET WHERE ARRESTING OFFICER’S UNCERTIFIED REPORT ACCOMPANIED THE CERTIFIED REPORT THAT WAS SUBMITTED BY TROOPER WHO ADMINISTERED IMPLIED CONSENT WARNINGS – In Department of Licensing v. Watkins, 187 Wn. App. 591 (Div II, May 12, 2015) the Court of Appeals rejects the argument of a driver who refused a breath test. James Watkins was arrested for driving under the influence of alcohol. The Department of Licensing notified him that it would be revoking his driving privileges for refusing to take a breath test. After the Department's hearings examiner ruled that Watkins's privileges should be revoked, the superior court reversed the ruling because the arresting officer had not certified his report. DOL appealed, arguing that a certified report submitted by a second officer (a WSP Trooper who processed the breath test warnings) gave the Department jurisdiction under the implied consent statute (RCW 46.20.308) to revoke Watkins's driving privileges, that the arresting officer's uncertified arrest report was admissible because the trooper submitted that report along with his own the certified report, and that admitting the arresting officer' s uncertified report did not violate constitutional due process protections. The Court of Appeals agrees with DOL. Result: Reversal of decision of Pierce County Superior Court, and affirmance of DOL hearing examiner's ruling sustaining the revocation of the driving privileges of James Watkins. (2) DEADLY ASSAULT IS A PREDICATE OFFENSE UNDER SECOND DEGREE MURDER STATUTE (RCW 9A.32.060) – In State v. McDaniel, 185 Wn. App. 932 (Div. II, Feb. 18, 2015), the Court of Appeals rejects the defendant’s argument that a deadly assault is not a predicate offense under the second degree felony murder statute. During a dispute with a friend, defendant pulled a gun and killed his friend. A jury convicted defendant of second degree murder on the felony-murder provisions of the statute. In rejecting defendant’s argument, the Court explains in part as follows:

RCW 9A.32.050(l)(b) provides that a person commits felony murder if he or she “commits or attempts to commit any felony, including assault. . . and, in the course of and in furtherance of such crime or in immediate flight therefrom, he or she, or another participant, causes the death of a person other than one of the participants.” (Emphasis added.) This statute unambiguously singles out assault as a predicate offense.

Result: Affirmance of Pierce County Superior Court conviction of Agyei Jumaane McDaniel for second degree murder.

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INTERNET ACCESS TO COURT RULES & DECISIONS, RCWS AND WAC RULES The Washington Office of the Administrator for the Courts maintains a website with appellate court information, including recent court opinions by the Court of Appeals and State Supreme Court. The address is [http://www.courts.wa.gov/]. 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 accessed (by date of decision or by other search mechanism) by going to the Ninth Circuit home page at [http://www.ca9.uscourts.gov/] and clicking on “Opinions.” Opinions from other U.S. circuit courts can be accessed by substituting the circuit number for “9” in this address to go to the home pages of the other circuit courts. Federal statutes are at [http://www.law.cornell.edu/uscode/]. Access to relatively current Washington state agency administrative rules (including DOL rules in Title 308 WAC, WSP equipment rules at Title 204 WAC, and State Toxicologist rules at WAC 448-15), as well as all RCW’s, is at [http://www.leg.wa.gov/legislature]. Information about bills filed since 1991 in the Washington Legislature is at the same address. Click on “Washington State Legislature,” “bill info,” “house bill information/senate bill information,” and use bill numbers to access information. Access to the “Washington State Register” for the most recent proposed WAC amendments is at this address too. In addition, a wide range of state government information can be accessed at [http://access.wa.gov]. The internet address for the Criminal Justice Training Commission (CJTC) Law Enforcement Digest (LED) is [https://fortress.wa.gov/cjtc/www/led/ledpage.html]. The monthly Legal Update for Washington Law Enforcement is edited by John Wasberg, who retired from the Washington State Attorney General’s Office after over 35 years of service as an Assistant Attorney General. Editorial commentary and analysis of court decisions express the thinking of Mr. Wasberg alone and do not necessarily reflect the views of any other person or any agency. 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.

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LEGAL UPDATE FOR WASHINGTON LAW ENFORCEMENT 2015 legal update.pdf · legal update for washington law enforcement ... united states court of appeals ... two rulings regarding search