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WEEKLY ROUNDUP FOR FEBRUARY 26, 2010

Miranda Warnings. Advice that a suspect has "the right to talk to a lawyer before answering any of [the law enforcement officers’] questions," and that he can invoke this right "at any time . . . during th[e] interview," satisfies Miranda. Florida v. Powell, No. 08-1175 (Feb. 23, 2010).

Confessions. Scaling back the presumption of involuntariness announced in Edwards v. Arizona, 451 U.S. 477 (1981), the Court holds that a suspect, who invokes his right to have counsel present during questioning, may be reapproached, with fresh Miranda warnings, if there has been a break in custody of at least two weeks in length. Incarceration does not constitute custody for Miranda purposes. A prisoner, who is removed from the general prison population and taken to a separate location for questioning, is in custody for Miranda purposes. Maryland v. Shatzer, No. 08-680 (Feb. 24, 2010).

Batson Challenges. A judge need not have personally observed jury voir dire in order to accept a demeanor-based explanation for a prosecutor’s challenge, when ruling on an objection to a peremptory challenge under Batson v. Kentucky, 476 U. S. 79 (1986). Thaler v. Cardell, No. 09-273 (Feb. 22, 2010).

Excessive Force. An excessive force action may not be dismissed solely because the injured party suffered de minimis injuries. Wilkins v. Gaddy, No. 08-10914 (Feb. 22, 2010).

VUCSA Prosecutions. The specific identity of the controlled substance should be included in the "to convict" jury instruction. It’s omission, however, was not fatal when the "to convict" jury instructions incorporated the drug identity by reference to the charging document, which specified methamphetamine, and where that drug and only that drug was proven at trial. WPIC 10.2, the "knowledge instruction" is a correct statement of the law with respect to a delivery charge. State v. Sibert, No. 79509-6 (Feb. 25, 2010). Justice Sanders authored a dissenting opinion. Chief Justice Alexander authored a separate dissenting opinion.

Firearm. A hollowed-out bolt, in which a bullet is inserted, when used with a hammer to strike the bullet is a firearm under former RCW 9.41.010(1) (2001). State v. Hammock, COA No. 37389-1-II (Feb. 23, 2010).

Gant and Waiver. A defendant’s failure to challenge the lawfulness of a search in the trial court does not prevent the defendant from raising a Gant challenge for the first time on appeal. State v. Burnett, COA No. 38196-6-II (Feb. 23, 2010).

Gant and Waiver. A defendant waives his right to appeal the admission of evidence seized in a vehicle search incident to arrest if he fails to challenge that search below.7 State v. Nyegaard, COA No. 37829-9-II (Feb. 23, 2010). Judge Houghton dissents, citing a decision issued by a differently constituted panel of Division Two judges.

Intra-panel Splits. Only the Washington Supreme Court can resolve a split between different panels of the same division of the Court of Appeals. State v. Nyegaard, COA No. 37829-9-II (Feb. 23, 2010).

Land Use. The recreational overlay district is not an amendment to the county's comprehensive plan. The recreational overlay district does not run afoul of state statutes that encourage the preservation of agricultural land. The decision to permit the overlay is amply supported by the findings of the commissioners. Feil v. Eastern Washington Growth Management Hearings Board, COA No. 28248-1-III (Feb. 23, 2010).

Frye. This medical malpractice case contains an excellent discussion of the Frye test. Eakins v. Huber, COA No. 27357-1-III.

42 U.S.C. § 1983. There is no actionable claim under § 1983 for procuring a coercive or involuntary waiver of a civil rights claim. A coerced waiver, however, does not extinguish a detainee’s claim for over-detention or false imprisonment. Avalos v. Baca, No. 07-56511 (9th Cir. Feb. 24, 2010).

WEEKLY ROUNDUP FOR FEBRUARY 12, 2010

Corpus Delicti. RCW 10.58.035, a statute that permits a lawfully obtained and otherwise admissible statement of a defendant to be admitted when independent proof of the crime is absent, the alleged victim is dead or incompetent to testify, and the defendant's statement is found trustworthy based on a nonexclusive set of statutory factors that a trial court must consider, is constitutional. A statement that is admissible under the provisions of RCW 10.58.035 is insufficient, in itself, to support a conviction. The State must still prove every element of the crime charged by evidence independent of the defendant's statement. State v. Dow, No. 81243-8 (Feb. 11, 2010). Justice Jim Johnson authored a brief concurring opinion.

On Tuesday, January 9, 2010, the Washington Supreme Court granted review of the following matters:

Good Faith. A conviction predicated upon evidence collected from the defendant’s car incident to his arrest under circumstances later declared unconstitutional in Arizona v. Gant, is affirmed because the officer was acting in good faith reliance on existing Fourth Amendment law. Suppressing the evidence would not deter police misconduct. The same result applied under article I, section 7 of the Washington constitution. State v. Riley, COA No. 62418-1-I (Feb. 8, 2010). Judge Dwyer dissented.

Failure to Register as a Sex Offender. A homeless sex offender does not violate the sex offender registration law by falsely listing the locations where he stayed during the prior week. Such an individual may be charged with making a false or misleading statement to a public servant, in violation of RCW 9A.76.175. State v. Flowers, COA No. 38468-0-II (Feb. 9, 2010).

Sexual Motivation. The trial court lacked authority under former RCW 9.94A.835(3) to dismiss a sexual motivation allegation over the State's objection. The trial court lacks the authority to dismiss any special allegation over the State’s objection when the underlying charge is not subject to dismissal. State v. Meacham, COA No. 38548-1-II (Feb. 9, 2010).

Limiting Instructions. The trial court’s failure to sua sponte give a limiting instruction regarding ER 404(b) evidence is reversible error. It is irrelevant that the defendant did not request such an instruction. State v. Russell, COA No. 38233-4-II (Feb. 9, 2010).

Prosecutorial Immunity. A DPA, who obtained a bench warrant for a sex offender for the sex offender’s failure to progress in treatment, was entitled to absolute immunity in the sex offender’s civil lawsuit for false arrest and violation of various constitutional rights. The DPA’s motion, which stated that it was "based upon the records and files" attached as exhibits, did not convert the DPA into a "complaining witness." Waggy v. Spokane County, No. 09-35133 (9th Cir. Feb. 5, 2010).

Felons in Possession of Firearms. The federal law that prohibits the possession of firearms by felons does not violate the Second Amendment, or the Equal Protection Clause. United States v. Vongxay, No. 09-10072 (9th Cir. Feb. 9, 2010).

Strip Searches. The sheriff’s policy, instituted to address a serious problem of contraband smuggling in the jail system, of strip searching all arrestees, who were to be introduced into San Francisco’s general jail population for custodial housing, did not violate the Fourth Amendment. Bull v. City and County of San Francisco, No. 05-17080 (9th Cir. Feb. 9, 2010).

WEEKLY UPDATE FOR JANUARY 29, 2010

Withdrawal of Guilty Pleas. A 12-year-old, who was represented by a Grant County public defender, who was compensated under a flat fee contract, is entitled to withdraw his guilty plea to a sex offense on the grounds that counsel provided ineffective assistance of counsel. It appears that defense counsel spent as little as 55 minutes with the 12-year-old defendant before the plea hearing, did no independent investigation, did not carefully review the plea agreement, did not consult with any experts, and misadvised the defendant of the consequences of a guilty plea. State v. A.N.J., No. 81236-5 (Jan. 28, 2010). Justice Sanders authored a concurring opinion in which he "urge[s] the judiciary to take a more proactive role to facilitate the appointment of effective counsel for indigent criminal defendants." Justice Jim Johnson authored a separate concurring opinion in which he "stress[es] the limited nature of the present holding." [Editor’s Note: One bright spot, the lead opinion indicates that the WSBA endorsed standards have not been incorporated into statute and that they "are evidence of what should be done, no more."].

Andress. The mandatory joinder rule, CrR 4.3.1(b)(3), does not prevent the the State from bringing additional homicide charges against defendants, whose original convictions for second degree felony murder were overturned as a result of the Washington Supreme Court's decision in In re Personal Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002). In so holding, the Court concedes that "the circumstances presented by the Andress decision are truly extraordinary and justify application of the ends of justice exception." State v. Gamble, No. 80131-2 (Jan. 28, 2010). Justice Sanders was the lone dissenter.

Firearm Enhancements. A sentencing court is statutorily required to impose multiple enhancements where a defendant is convicted of multiple enhancement-eligible offenses that constitute the same criminal conduct under the sentencing statute. Such enhancements run consecutively to each other. State v. Mandanas, No. 80441-9 (Jan. 28, 2010). Justice Sanders authored a concurring opinion.

Negligent Dissemination of Information. No cause of action lies for negligent dissemination of unsubstantiated information. Pierce County v. Corey, COA No. 62505-5-I (Jan. 25, 2010).

Promissary Estoppel. A former deputy prosecuting attorney, who did not have either an express or implied contract for just cause termination, because there was no consideration, could proceed on a wrongful discharge claim on a theory of promissary estoppel. Pierce County v. Corey, COA No. 62505-5-I (Jan. 25, 2010).

Attorney Fees. A request for attorney fees pursuant to RCW 49.48.030, must be filed within the 10 day period authorized by CR 54(d)(2). Pierce County v. Corey, COA No. 62505-5-I (Jan. 25, 2010).

Community Caretaking. A warrantless entry into a home to check on an apparently non-responsive person, in order to determine whether the person was breathing and whether she needed medical assistance was proper under the community caretaking exception to the warrant requirement. State v. Hos, COA No. 37860-4-II (Jan. 26, 2010)

WEEKLY UPDATE FOR JANUARY 22, 2010

Open Courtrooms. The Sixth Amendment right to a public trial extends to jury selection. While the accused does have a right to insist that the voir dire of the jurors be public, there are exceptions to this general rule. Such circumstances will be rare, however, and require the court to consider alternatives to closure, to limit the closure, and to make findings in support of the closure. Presley v. Georgia, No. 09-5270 (Jan. 19, 2010).

Stipulations to the Sufficiency of the Evidence. A stipulation to the sufficiency of the evidence in a drug court contract was not the functional equivalent to a guilty plea. A stipulation to the sufficiency of the evidence is a legal conclusion is not binding on a court. Instead, the court must make an independent determination of guilt after considering all the evidence. The trial still has the authority to find the defendant not guilty if it determines that the stipulated evidence does not establish all elements of the crime beyond a reasonable doubt. The statutory inference regarding burglary was appropriately utilized in this case. State v. Drum, No. 81498-8 (Jan. 21, 2010). Justice Madsen authored the dissenting opinion related to the inference of criminal intent.

Medical Marijuana. The presentation of a medical marijuana authorization does not negate probable cause. Police may obtain a search warrant despite being presented with a medical marijuana authorization. The trial court did not err by precluding a compassionate use defense where the undisputed evidence was that the defendant was not a "qualifying patient." State v. Fry, No. 81210-1 (Jan. 21, 2010). Justice Chambers authored a concurring opinion that found no fault with the majority’s opinion regarding the issuance of a search warrant, but that the trial court should generally not preclude a compassionate use defense prior to the start of trial. Justice Sanders dissented on both points. [Editor’s note: On a related note, the Medical Quality Assurance Commission, in consultation with the Board of Osteopathic Medicine and Surgery, made the decision on January 15, 2010, to deny the petition to add bipolar disorder, severe depression and anxiety related disorders, specifically social phobia to the medical conditions for which medical marijuana would be beneficial and that are permitted under state law RCW 69.51A.010(4).]

Arrest Warrants. An arrest warrant for a probation violation must be supported by a well-founded suspicion that the defendant violated the terms of his or her release. State v. Erickson, No. 81594-1 (Jan. 21, 2010).

Firearm Enhancements. Double jeopardy principles are not violated by imposition of a firearm enhancement where use of a firearm is an element of the underlying offense. State v. Kelley, No. 82111-9 (Jan. 21, 2010).

Failure to Register as a Sex Offender. Residential status is not an element of the crime of failure to register as a sex offender. State v. Bennett, COA No. 62962-0-I (Jan. 19, 2010).

Juvenile LFOs. To be timely, a order extending the period of time to collect LFO’s in a juvenile case must be entered no later than 10 years from the entry of the original disposition order or prior to the offender’s 28th birthday, whichever is earlier. The extension of judgment fee authorized by RCW 36.18.016, is not available in juvenile matters. In re Personal Restraint of Brady, COA No. 27005-0 (Jan. 19, 2010).

Terry Stops. Information from a citizen who confronts an officer in person to advise that a designated individual is committing a specific crime displays significant indicia of reliability, that may support a Terry stop of the designated individual. United States v. Palos-Marquez, No. 08-50498 (9th Cir. Jan. 19, 2010).

Summary Judgment. A district court has discretion to entertain successive motions for summary judgment. Hoffman v. Tonnemacher, No. 08-16166 (Jan. 21, 2010).

WEEKLY UPDATE FOR JANUARY 15, 2010

Sufficiency of the Evidence. In determining whether sufficient evidence supports a conviction, a reviewing court may not consider evidence outside the trial record that goes to the reliability of trial evidence. McDaniel v. Brown, No.08-559 (Jan. 11, 2010).

Firearm Enhancements. A firearm enhancement may not be imposed in cases in which the jury returned a "deadly weapon" verdict, instead of a more specific "firearm" verdict. The harmless error doctrine does not apply to this mistake. State v. Williams-Walker, No. 78611-9 (Jan. 14, 2010). Justice Fairhurst authored the dissenting opinion.

Sexually Violent Predators. When a detainee was incarcerated for a crime when the SVP petition was filed, the trial court does not need to hold an evidentiary hearing before deciding whether the act for which the detainee was incarcerated constituted a recent overt act. The preponderance of the evidence standard applies to the trial court’s determination that the crime of incarceration was a recent overt act. In this case, the record supports the trial court's determination that the detainee’s possession of child pornography was an overt act because knowledge of the detainee’s history and mental condition could create a reasonable apprehension of harm of a sexually violent nature in the mind of an objective person. In re Detention of Brown, COA No. 62383-4-I (Jan. 11, 2010).

Necessary Party. Pierce County is a necessary party to an action in which the person, who purchased a plot of land at a Pierce County tax foreclosure sale, sought title clear of any restrictions arising out of the Woodfield Estates plat. The recreational use restriction, however, was a required condition for Pierce County’s approval of the development. Graziano v. Woodfield Neighborhood, COA No. 37769-1-II (Nov. 9, 2009, publication ordered Jan. 12, 2010)

Mutual Aid Agreements. The Washington State University Police Department is a general authority law enforcement agency for purposes of the Mutual Aid Peace Officers Powers Act,

chapter 10.93 RCW. The WSU police officer’s off-campus traffic stop of the defendant was propoer under the local mutual aid agreement. State v. Hardgrove, COA No. 27994-4-III (Jan. 14, 2010).

Tasers. The officer’s use of a taser against a woman, who was standing between an officer who was attempting to arrest the woman’s belligerent and intoxicated husband for a DV assault, and the woman’s husband, and who made physical contact with the officer in an attempt to stave off the arrest, was constitutionally reasonable. Mattos v. Agarano, No. 08-15567 (9th Cir. Jan. 12, 2010).

Failure to Investigate a Crime. Law enforcement officers who are accused of failing to investigate a crime or make an arrest due to the race of the victim and that of the perpetrator are not entitled to qualified immunity. Elliot-Park v. Manglona, No. 08-16089 (9th Cir. Jan. 12, 2010).

Fifth Amendment Violations and 42 U.S.C. § 1983. The use of coerced statements in grand jury proceedings, juvenile declination hearings, and release hearings, can support a § 1983 claim against the interrogating officers. A police officer is the proximate cause of the Fifth Amendment violation, even though it is the prosecutor, not the police officer, who decides to introduce and actually introduces the statement into evidence. The officers’ conduct during the interrogations also support an action under Due Process Clause of the Fourteenth Amendment because the techniques used were so coercive as to "shock the conscience." A suspect whose arrest is supported by probable cause, but whose continued detention was justified by coerced statements, may pursue a Fourteenth Amendment rights to familial companionship claim. Crowe v. Wrisley, No. 05-55467 (9th Cir. Jan. 14, 2010).

42 U.S.C. § 1983 Liability. The traditional deliberate indifference standard applies to a pre-trial detainee’s claim that the jail staff and mental health workers failed to prevent a suicide. Court rejects the proposed substantial risk of serious harm standard proposed by the family of a detainee who committed suicide. Clouthier v. County of Contra Costa, No. 07-16703 (9th Cir. Jan. 14, 2010).

WEEKLY UPDATE FOR JANUARY 8, 2010

Land Use. When a trial court denies a permit previously granted by a hearing examiner, that permit's time limit is terminated unless the permit is reinstated on appeal. Kelly v. Chelan County, COA No. 81855-0 (Jan. 7, 2010).

The Washington Supreme Court granted review of the following cases on January 5, 2010:

Vehicular Assault. Where the trooper handed the special statutory notice form to the interpreter, who then read from the form in Spanish to the defendant, the State meets its burden of establishing that the defendant received notice of his right to an independent blood test. The State need only prove, by a preponderance of the evidence, that the special statutory notice was tendered to a defendant. Beer cans seized from the car without a warrant were admissible because the trooper would have inevitably discovered the beer cans in the back of the car during the lawful impound and inventory search of the defendant’s vehicle. State v. Morales, COA No. 36941-9 (Jan. 5, 2010).

Gant . A defendant who did not bring a suppression motion prior to trial, may assert a claim under Gant v. Arizona for the first time on appeal. The good faith exception to the exclusionary rule will not be applied to automobile searches performed prior to the issuance of Gant. State v. Harris, COA No. 36565-1-II (Jan. 7, 2010). Judge Quinn-Brintnall dissented.

Paternity. In cases in which there is a presumptive father, a trial court must first hold a hearing to determine if DNA testing is in the child’s best interests. In re Parentage of S.E.C., COA No. 38883-9-II (Jan. 7, 2010).

Voting Rights. Vote denial claims challenging felon disenfranchisement laws are cognizable under § 2 of the Voting Rights Act (VRA). The Washington felon disenfranchisement law violates § 2 of the VRA, in that: (1) there are significant statistical racial disparities in the operation of the criminal justice system; (2) those disparities cannot be explained in race-neutral ways; and (3) those non-race-neutral disparities in the criminal justice system lead to significant racial disparities in the qualification to vote. Farrakhan v. Gregoire, No. 06-35669 (9th Cir. Jan. 5, 2010).