Tuesday, May 24, 2011

Bellevue's Proposed "Drug Loitering" Ordinance Promotes Racial Profiling and May Be Unconstitutional, Says Lawyer

By Curtis Cartier, Tue., May 24 2011 at 2:16 PM
Categories: Law & Courts

Bellevue police officers would really like to arrest a handful of people that hang out in the Crossroads and Factoria neighborhoods and look like they're selling drugs. Unfortunately the whole "Fourth Amendment of the Constitution" thing requires police to have either a warrant or probable cause to make such arrests.

But what if there was a law that allowed officers to arrest people for "loitering with the intent of engaging in drug-related activity"? And what if instead of probable cause, police only needed "reasonable suspicion" to detain and arrest someone for that crime? The Bellevue City Council wants to find out.

Last night, after hearing from two BPD officers who complained about not being able to arrest known drug dealers because the dealers are hiding their drugs off-site, the council voted to look more closely at a law that would let officers arrest people for simply appearing to be trying to sell drugs.

Bellevue Police Legal Advisor Kyle Aiken explained at the hearing:

"Known convicted drug dealers hang out on public sidewalks... So they're out there, they hold what appear to be innocent conversations and then they escort the person--the customer--out of the sight of officers where it's presumed a drug sale occurs," Aiken testified. "The officers can't do anything because those are all innocent actions."

The proposed law would make those "innocent actions" no longer innocent and allow officers to search and arrest people for "drug-related loitering."

The proposed ordinance is actually based on existing laws in Seattle, Tacoma and Yakima--most closely the law in Tacoma.

Early language from the legislation states:

If an officer observes circumstances that gives the officer a reasonable suspicion that the person is loitering with (the intent of selling drugs). . . The officer will have the ability to arrest this person.

But serious questions remain as to whether such a law would be constitutional. Aiken and Bellevue PD note that the Washington Supreme Court upheld Tacoma's drug-loitering law in 1992.

This is true. But along the way judges have noted that the law is vulnerable to constitutional challenges from higher courts.

The Seattle Times reported in 1990 that when Pierce County Superior Court Judge James Healy upheld Tacoma's drug-loitering law, he did so with the caveat that it may be struck down later.

The law has never been challenged in federal court. But according to Seattle attorney Kurt E. Boehl, a former Seattle city prosecutor and expert in constitutional law, "with the right case" a challenge to this ordinance could go all the way to the U.S. Supreme Court.

"How could a law like this not create profiling? Especially racial profiling?" Boehl tells Seattle Weekly today. "I think it's expanding what officers can use to make contact and make arrests. And it's expanding their arsenal at the expense of our civil rights. What exactly does a drug dealer look like?"

Aiken maintains that she's confident the proposed law is constitutional. But when asked what prevents officers from using normal probable cause procedures to obtain a search warrant and find where the drugs that the alleged dealers in question are hiding, she balks.

"These officers aren't able to develop probable cause for a crime, but they have reasonable suspicion," she says.

Reasonable suspicion and probable cause have, of course, two completely separate legal definitions--the latter requiring much more evidence than the former. But having a law that makes the two terms essentially the same thing would certainly simplify things for cops--never mind what it does to individual liberties.

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Case Law Update, 5-20-11

Washington State Supreme Court:

State v. Williams: When stopped on suspicion of first degree theft, Mr. Williams gave officers a false name, apparently to avoid discovery of an outstanding warrant. Mr. Williams was convicted of the theft along with a charge of making a false statement, and one of obstruction. The Court reversed the obstruction charge, finding that some conduct in addition to pure speech is necessary in order to establish obstruction of an officer. The Court observed that it not only had concerns that criminalizing pure speech would implicate freedom of speech, but that it also had concerns that, were it to criminalize pure speech, officers, without probable cause or even reasonable suspicion that a crime is being committed, may engage citizens in conversation, arrest them for obstruction based upon false statements, and then search incident to the arrest. The Court concluded, “Our continued interpretation of obstruction statutes as requiring some conduct ensures these constitutional limits are maintained.” http://www.courts.wa.gov/opinions/pdf/839921.opn.pdf

State v. Martin: The Court affirmed Mr. Martin’s conviction on three counts of first degree kidnapping and one count of second degree robbery, holding that there was no violation of article I, section 22 of the Washington State constitution when a deputy prosecutor, on cross-examination, posed questions to Mr. Martin that inferred he had tailored his testimony to be consistent with police reports, witness statements, and prior witness testimony. In so holding, the Court recognized that, in the context of prosecutorial suggestions of tailoring, article I, section 22 is more protective than the Sixth Amendment. But the Court further recognized that, in this case, questions posed by the prosecutor were posed in response to statements made by Mr. Martin during direct examination that hinted that his testimony was in fact based on prior witness testimony. http://www.courts.wa.gov/opinions/pdf/837091.opn.pdf

In his dissent, Justice Sanders agreed with the majority that article I, section 22 of the Washington Constitution affords greater protection in this instance than the Sixth Amendment to the United States Constitution, but disagreed with the majority’s “ill-reasoned decision which interprets article I, section 22 as being compatible with inferences of tailoring during cross-examination.” The dissent pointed out that the majority opinion would allow the State to implicitly criticize the defendant for exercising the constitutional right to review pre-trial evidence against him, be present at trial, and confront witnesses against him. This, the dissent argued, presents the defendant with the Hobson’s choice of exercising his right to be present at trial and testify, or sequester himself in order to prevent the taint of a tailoring accusation. http://www.courts.wa.gov/opinions/pdf/837091.no1.pdf

In a partial concurrence/partial dissent, Justice Stephens concurred in the result reached by the majority, but solely on the basis of harmless error. Justice Stephens agreed with the dissent that article I, section 22 of our state constitution does not permit the State to suggest the defendant has tailored his testimony when exercising his trial rights. Justice Stevens further shared “without reservation” the observation made by the dissent that "'[p]rosecutorial comment suggesting that a defendant tailored his testimony inverts [a defendant's fair trial rights], permitting the prosecutor to punish the defendant for exercising that which the Constitution guarantees.'" However, Justice Stephens agreed with the majority result because she believed that the impermissible cross-examination that occurred in this case was harmless error. http://www.courts.wa.gov/opinions/pdf/837091.ip1.pdf

Division One Court of Appeals

In Re Detention of Aston: The Court upheld Mr. Aston’s civil commitment as a sexually violent predator (SVP). In so doing, the court held that the State provided sufficient evidence to prove beyond a reasonable doubt that Mr. Aston committed a recent overt act when he admitted to probation officers that he possessed child pornography, that he was fantasizing about sex with minors, and that he had been writing down these fantasies and threatened to reoffend if given the opportunity. Further, the Court held that a unanimity instruction was not required for the jury to decide that Mr. Aston committed a recent overt act, and the trial court did not abuse its discretion in denying Mr. Aston’s motion for a mistrial, nor did it abuse its discretion or violate Mr. Aston’s right to an impartial jury by setting 20 minute time limits for voir dire for each side. http://www.courts.wa.gov/opinions/pdf/64264-2.pub.doc.pdf

State v. Chirinos: The Court held that, where the trial court seats an alternate juror after temporarily excusing that juror, the court must instruct the reconstituted jury to begin deliberations anew, but need not determine on the record that the alternate juror remains impartial, as the rule governing the seating of alternate jurors confers upon the trial court the discretion to determine whether such an inquiry is necessary. Here, the trial court complied with this rule, and thus Mr. Chirinos was not denied his constitutional right to an impartial jury. The Court further found without merit Mr. Chirinos’ remaining claims that 1) there was insufficient evidence presented to support the jury’s verdict finding him guilty of attempted robbery in the second degree, 2) that the trial court erred by admitting evidence that the car in which he was found was stolen, 3)that the prosecutor committed misconduct during Mr. Chirinos' cross-examination by asking questions that, Mr. Chirinos asserts, were intended to elicit from him statements that several of the State's witnesses were lying, and 4) that he was denied a fair trial because the prosecutor in closing argument informed the jury that Mr. Chirinos had proposed instructions on two lesser included offenses. http://www.courts.wa.gov/opinions/pdf/64725-3.pub.doc.pdf

State v. Allen: Mr. Allen appealed his felony harassment conviction, arguing that the trial court deprived him of a fair trial when it refused to give Mr. Allen’s proposed jury instruction on cross-racial eyewitness identification. The Court disagreed and affirmed, following prior cases holding that such an instruction risks violating the constitutional prohibition against comments on the evidence. The Court also disagreed with Mr. Allen’s arguments that the prosecutor improperly vouched for the credibility of the victim, and that the information and to convict instruction were deficient for not containing true threat as an element of felony harassment. http://www.courts.wa.gov/opinions/pdf/64466-1.pub.doc.pdf

In a concurrence, Judge Ellington agreed with the conclusion reached by the majority, but wrote separately to argue that the Court should advise jurors that cross-racial identification should be carefully scrutinized. The concurrence argued that such an instruction could be drafted without making a judicial comment on the evidence, and that an instruction is past due. http://www.courts.wa.gov/opinions/pdf/64466-1.con.doc.pdf

Division Two Court of Appeals

State v. Frasquillo: In this partially published opinion, the Court affirmed Mr. Frasquillo’s conviction for second degree assault and attempted second degree assault, holding that though the Court erroneously gave the jury the transferred intent instruction, but the error was harmless as the instruction as written did not apply to the attempted assault charge. The Court further held that there was sufficient evidence of Mr. Frasquillo’s intent to assault three of his victims. http://www.courts.wa.gov/opinions/pdf/39128-7.11.doc.pdf

State v. Hunley: Mr. Hunley appealed his conviction for attempting to elude a police vehicle, arguing that defense counsel was ineffective in failing to request a lesser included offense instruction for reckless driving, and that provisions of the SRA unconstitutionally relieved the State of its burden of proof at sentencing. The Court held that reckless driving is not a lesser included offense in attempting to elude a police vehicle, and thus there was no ineffective assistance in counsel’s failure to request an instruction. However, the Court held that the challenged SRA provisions do violate due process, and remanded for resentencing to allow the State an opportunity to prove Mr. Hunley’s criminal history. http://www.courts.wa.gov/opinions/pdf/39676-9.11.doc.pdf

Division Three Court of Appeals

State v. McCabe: In this partially published opinion, the Court upheld Mr. McCabe’s conviction for delivery of a controlled substance and possession with intent to deliver a controlled substance. The Court found no error or abuse of discretion in the trial court’s denial of Mr. McCabe’s motion to present telephonic testimony of a witness unwilling to testify in court. http://www.courts.wa.gov/opinions/pdf/288005.opn.doc.pdf

State v. Coristine: The Court affirmed Mr. Coristine’s conviction for second degree rape, holding that a jury instruction that it was an affirmative defense that Mr. Coristine reasonably believed that the victim was not mentally incapacitated or physically helpless, given alongside an instruction that Mr. Coristine could not be found guilty if the victim was in fact capable of consent was proper. The Court found that the instruction was required by the evidence in this record, was not inconsistent with Mr. Coristine’s defenses, and was harmless in any event because the jury concluded that the victim was not capable of consent. http://www.courts.wa.gov/opinions/pdf/288684.cor.doc.pdf

Federal Law

United States Supreme Court

Kentucky v. King: Justice Alito, writing for the Court, and joined by Justices Roberts, Scalia, Kennedy, Thomas, Breyer, Sotomayor, and Kagan, held that the exigent circumstances rule applies when police do not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment. In this case, the Court found that the police properly knocked, announced their presence, and then entered to prevent the destruction of evidence, a valid exigency under which a warrantless search is permitted. The Court found no evidence that officers either violated the Fourth Amendment or threatened to do so prior to the point when they entered the residence, but merely knocked an announced, consistent with the Fourth Amendment. In so holding, the Court rejected arguments that by knocking and announcing, rather than lying in wait and first obtaining a warrant, the officers created their own exigency.

In her dissent Justice Ginsburg argued that this decision “arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases.” Rather than obtain a warrant, even when time exists to do so, the dissent observed that police may now knock, listen, and then break down the door. The dissent argued that police should not be allowed to dispense with the need to get a warrant by creating exigent circumstances, as was done here; rather, the exigency must exist when police arrive on the scene. http://www.supremecourt.gov/opinions/10pdf/09-1272.pdf

Brown v. Plata: In a landmark ruling, Justice Kennedy, writing for the Court and joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan ruled that the State of California must release approximately 46,000 convicted criminals to reduce overcrowding in the State’s prisons that has resulted in a violation of the inmates’ Eighth Amendment rights.

In his dissent, Justice Scalia, joined by Justice Thomas argued that “the institutional reform the District Court has undertaken violates the terms of the governing statute, ignores bedrock limitations on the power of Article III judges, and takes federal courts wildly beyond their institutional capacity.” Instead, the dissent argued that the Court should have made an effort to read the law so as to avoid the mass release.

In his dissent, Justice Alito, joined by Chief Justice Roberts argued that the Eighth Amendment prohibits prison officials from depriving inmates of “the minimal civilized measure of life’s necessities.” However, the dissent argued, undesirable prison conditions that do not violate the Constitution are beyond the federal courts’ reach. Here, the dissent contended, the District Court exceeded its authority under both the Constitution and the Prison Litigation Reform Act of 1995 by ordering a radical reduction in the California prison population without finding that the current population level violates the Constitution. http://www.supremecourt.gov/opinions/10pdf/09-1233.pdf

Ninth Circuit Court of Appeals

United States v. Tsosie: The Court vacated and remanded a restitution order directing Mr. Tsosie to pay $31,994 in restitution to the mother of the victim of Mr. Tsosie’s sexual abuse to cover costs she incurred in making a series of trips between her home and the victim’s boarding school, 150 miles away because the victim’s therapist had prescribed a course of treatment that included the victim seeing her mother every weekend. The Court held that the award lacked an evidentiary basis and that the District Court had not adequately explained its reasons for entering the order. The Court further held that Mr. Tsosie had not waived his right to appeal the restitution order when entering his guilty plea, as he had not been given proper notice of the amount of restitution sought.

In a partial dissent and partial concurrence, Judge Bea agreed that the law requires a finding that Mr. Tsosie did not waive his right to appeal the restitution order because he was not aware of the restitution amount at the time he entered the plea agreement on the child molestation charges. However, Judge Bea dissented from the finding that the district court erred in awarding restitution to the victim’s mother based on insufficient evidence when the victim’s mother had provided a detailed spreadsheet showing her expenses. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/10/10-10030.pdf

Velasquez v. Kirkland: The Court found that the one-year statute of limitations for filing a federal habeas corpus petition is not tolled during a California state prisoner’s delays between his state-court petitions for collateral review. Specifically, the Court found that Mr. Velasquez provided no adequate justification for the delays in his state court filings, and there was no indication that the delays were proper under state law to warrant statutory tolling of the deadline. Further, the Court found Mr. Velasquez did not demonstrate “extraordinary circumstances” to warrant equitable tolling of the deadline. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/10/08-55823.pdf

Harrison v. Gillespie: The Court found that under the facts of this case, the trial judge did not abuse her discretion when she excused the deadlocked jury without first polling them, per Mr. Harrison’s request, as to whether they had ruled out the death penalty and was deadlocked on a lesser sentence. The Court found that capital defendants do not have a per se constitutional right to inquire about the possibility that a penalty-phase jury has reached a preliminary decision against imposing the death penalty. The Court concluded that granting such a right would lead to the risk that the trial court could through polling coerce the jury into reaching a compromise it might not otherwise reach or to encourage the jury to treat a preliminary vote as a final verdict. Here, the Court reasoned, the jurors were deadlocked, appeared frustrated after lengthy proceedings, may have been inclined to treat a preliminary compromise as a final verdict, and never indicated that they had reached a final finding acquitting Mr. Harrison of the death penalty. The Court also held that in the retrial of the penalty phase the Double Jeopardy Clause does not preclude the State from including the death penalty as a sentencing option.

Judge Thomas, joined by Judges Reinhardt, Fletcher, Fisher, and Berzon, dissented, arguing that it would appear that the jurors in Mr. Harrison’s trial had decided to acquit him of the death penalty, and had informed the judge that they were deadlocked between life with parole and life without parole. The dissent argued that it was improper for the judge to have refused to conduct the requested poll and summarily declared a mistrial, particularly where there was no manifest necessity to discharge the jury without conducting the requested poll that would have answered the question of whether the jurors had reached a death penalty verdict. The dissent argued that the trial judge violated Mr. Harrison’s right to have the “particular tribunal give complete consideration to his case,” and that he should not be subject a second time to the death penalty.

Judge Reinhardt, joined by Judge Thomas, dissented, noting that he joined in Judge Thomas’ dissent but wrote separately to emphasize that the trial court’s declaration of a mistrial when there was no manifest necessity to do so was based on “fundamental misunderstanding of the function of a capital sentencing proceeding.” The trial judge thus precluded Mr. Harrison from obtaining confirmation that the jury had found him ineligible for death and that the double jeopardy clause would bar him from being so sentenced in any subsequent proceedings. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/10/08-16602.pdf

United States v. Escamilla-Rojas: The Court found that the taking of guilty pleas during a large group plea hearing did not violate Ms. Escamilla-Rojas’ rights under FRCP 11 and the Fifth and Sixth Amendments. The court reasoned that Ms. Escamilla-Rojas had more than adequate representation by counsel and thus failed to “demonstrate a reasonable probability that . . . the result of the proceeding would have been different,” if counsel had not been temporarily separated from her during the group advisement. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/12/10-10185.pdf

United State v. Diaz-Ramirez: The Court found that the taking of guilty pleas during a large group plea hearing did not violate Mr. Diaz-Ramirez’ rights under FRCP 11 and the Fifth and Sixth Amendments. The Court reasoned that Mr. Diaz-Ramirez did not demonstrate that any error in the proceeding was plain and affected his substantial rights, and that, but for the error, he would not have entered his plea. In short, the Court found that Mr. Diaz-Ramirez did not even suggest, much less show, that he would not have pleaded guilty if the plea hearing had been more individualized, the Court could not conclude that there was any plain error. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/23/10-10230.pdf

Leavitt v. Arave: The Court reversed the District Court’s finding that Mr. Leavitt’s counsel’s performance was deficient at the sentencing phase when counsel decided not to seek an MRI or pursue further investigation into Mr. Leavitt’s mental health in an effort to prevent him from being sentenced to death on a gruesome murder case. The Court reasoned that the mental health angle had been tried once by previous counsel and had failed. Further, the Court observed, given the “gruesome nature of the crime, coupled with the relatively weak additional evidence” to be found in an MRI, any ineffectiveness, if present, was harmless.

Judge Reinhart dissented, arguing that Mr. Leavitt’s counsel was incompetent to the point that confidence in the outcome of the case was undermined. The dissent argued that counsel was duty bound to seek the MRI that had been previously denied, and failing to do so prevented him from discovering evidence establishing that Mr. Leavitt suffers from organic brain damage, plainly undermining confidence in the outcome of the case and the sentence imposed. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/17/08-99002.pdf

United States v. Lettiere: The Court held that the district court did not err in failing to instruct the jury on the dictionary definition of “brandish” in lieu of or in addition to the statutory definition as part of Mr. Lettiere’s trial on charges of robbery affecting commerce and use of a firearm during a crime of violence. The Court found that the statutory definition was the correct and narrower definition and was properly used in this case.

In a concurrence, Judge Tashima agreed with the outcome but wrote separately to explain why it is necessary for the Court to fully review Mr. Lettiere’s challenge to the jury instruction defining “brandish,” expressing concern that readers would be confused as to why the definition was necessary when brandishing is not an element of the offense which must be found by a jury, but is a sentencing factor to be found by the judge. The concurrence explained that the indictment charged that Mr. Lettiere had used and brandished a firearm, and that the defendant and the government had agreed to the use of the definitional instruction at the charge conference. Under these facts, the term “brandish” thus became an element of the offense in this case. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/23/10-30101.pdf

Williams v. Cavazos: The Court granted Ms. Williams’ petition for habeas relief, finding that the district court improperly dismissed a known holdout juror and replaced him with an alternate in order to move the trial along and secure a conviction. The Court found that this action violated Ms. Williams’ Sixth Amendment rights. “In view of the reasonable possibility that Juror No. 6’s discharge was directly or indirectly the result of his position on the merits of the case, and in view of the lack of good cause to justify his dismissal,” the Court found that Ms. Williams was deprived of his right to a fair try by jury. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/23/07-56127.pdf