WA Legal Roundup
I know I said I would be blawging yesterday, but, alas, a failure by me to get any work done on Bar Result Saturday led to an extremely busy Monday. This, of course, led to updates being put on the back burner.
Two new opinions out of Division I late yesterday. Three out of Div. II and two out of Div. III this morning.
In Biomed, Biomed had failed to comply with the requirements of the Administrative Procedures Act. The act requires that the pleading of a corporation be signed by an attorney. Where pleading is not signed by an attorney, the court may strike the pleading, but only if the "court gives the corporation a reasonable time to correct the error." As you may have guessed, Biomed failed to have an attorney sign the pleading. Rather than grant leave to correct the error, the Superior Court instead dismissed the claim with prejudice. The Superior Court was reversed based on this abuse of discretion.
In George, a suspect was stopped for driving 43 mph in a 25 mph zone. The officer smelled a strong odor of marijuana wafting from the vehicle, and the officer detained Graeme George for a search, along with the other occupants of the vehicle. George was seated behind the driver. Under the driver's seat, on the floorboard, the officer found drug paraphernalia and burnt marijuana. When no one "fessed up", the officer placed them all under arrest. George was charged with possession of drug paraphernalia and possession of marijuana less than 40 g. He was convicted on all counts.
The error stems from the refusal of the judge to grant an unwitting possession instruction per WPIC 52.01, which George had requested. The court had accepted the state's argument that there was insufficient evidence to warrant the instruction unless George testified.
The court of appeals held that there was sufficient evidence to have instructed the jury on unwitting possession:
Here, the testimony of the only witness -- Trooper Thompson -- provided a wealth of evidence to justify the jury being instructed on the defensive unwitting possession. Trooper Thompson testified that all three vehicle occupants denied knowing anything about any marijuana being present. He testified that George denied knowledge of any marijuana in the vehicle and denied ownership of the pipe. He testified that George was not driving the vehicle and did not own the vehicle; the vehicle owner was present in the front passenger seat. He testified that there is no fingerprint evidence linking George to the pipe. He testified that it was at least theoretically possible that someone in the front seat could place the pipe in the backseat after the vehicle was stopped. He testified he did not know when the pipe at last been used, who placed it on the floorboard, or when it was placed there.
The court also reversed based on the failure to charge the elements of the crime. As the court noted, bare possession of paraphernalia is not a crime in Washington under State v. McKenna, 91 Wn. App. 554, 563, 958 P.2d 1017 (1998), and State v. Lowrimore, 67 Wn. App. 949, 959, 841 P.2d 779 (1992). Thus, the citation provided by Trooper Thompson did not provide notice of a charge of any crime.
While each of those errors could be remedied by curing the charging defect and retrial, the court also reversed based on insufficiency of the evidence. The court first noted that drug residue can properly be charged his possession of a controlled substance "because there is no minimum amount of drug which must be possessed in order to sustain a conviction." However, as to the possession of drug paraphernalia, "the State had to prove not only that George possessed the pipe but also that he used it in a drug-related activity." As to possession, the court ruled that actual possession was right out, turning instead to constructive possession. However, where the only evidence is proximity to the drug, it is insufficient.
In Sadler, a defendant was charged with thirty and convicted of eight counts of sexual exploitation of a minor. He argued error based on the court hearing his Batson challenge in the jury room rather than open court, the court denying his motion to suppress evidence discovered in his residence, admission of his statements to law enforcement, and that the defense to sexual exploitation of the minor is unconstitutionally vague as applied.
Addressing the Batson challenge, the court first establish that "it is well settled that the right to a public trial also extends to jury selection." To determine if closure of the proceedings will unjustifiably interfere with the defendant's right to a public trial, the court must conduct a Bone-Club inquiry:
- The proponent of closure or ceiling must make some showing [a compelling interest], and where that need is based on the right other than an accused's right to a fair trial, the proponent must show a "serious and imminent threat" to that right.
- Anyone present when the closure motion is made must be given an opportunity to object to the closure.
- The proposed method for curtailing open access must be the least restrictive means available for protecting the threatened interests.
- The court must weigh the competing interests of the proponent of closure and the public.
- The order must be no broader in its application Corporation than necessary to serve its interests.
The court concluded that conducting the Batson hearing in the jury room was a closure to the public, and a failure to conduct a Bone-Club inquiry required reversal in remand for further proceedings.
As to the motion to suppress, a little factual explanation is required. The police first conducted in a lawful warrantless entry and search. Wanting to obtain a warrant, the police conducted a second warrantless search for the purpose of obtaining evidence for the warrant. Finally, the police conducted a search pursuant to their warrant. The first search was conducted in order to attempt to locate the minor in question, who, through the Internet, have been linked to Sadler's address. After securing the minor's safety, and security of the premises, another officer walked through the residence. The two officers that conducted the first warrantless search, which was valid, did not testify in obtaining the warrant. The officer that had arrived later, and performed the walk-through after the premises were secured, was the one who testified. The court concluded that the first search fell under the emergency exception to the warrant requirement, but the second search calendar no known exception. The court remanded in order to determine whether the warrant would have been valid without the information obtained in the second warrantless search.
Finally, the court disposed of the vagueness challenge as, even if they accepted that a statutory defense could be subject to a vagueness challenge, without merit because the jury was never instructed that production of the minor's identification via WebCam was not production at all. Rather, the question was left to the jury as to whether that was reasonable. Because the only vagueness was that inherent in language, the court held the defense is sufficiently definite.
This case involves a previous opinion in which the court of appeals remanded to the trial court to make a determination regarding a motion to suppress. The court of appeals instructed the trial court to "determine whether the officers who sought a search warrant for the trunk of Perez's car would have done so if they had not already learned of the trucks contents by an illegal search." The trial court found, upon stipulation, that the officers had no intent to seek a warrant before conducting the "inventory search" of Perez's trunk. The court of appeals, based on that finding, concluded that the trial court erred in denying Perez's motion to suppress, reversing the conviction and remanding for further proceedings.
This case arises from previous opinion, which was unpublished, and for which a motion for reconsideration was filed. The penalty was assessed against MJD Farms for pumping dairy waste into an unlined trench on land they leased from the state. The Pollution Control Hearings Board reduced and partially suspended the penalty on appeal, and the decision was affirmed on review by Thurston County Superior Court. Much like land use, I will leave the beef of this to the environmental law nerds. The court affirmed the PCHB conclusion the violation occurred and its suspension of a portion of the gravity component of the penalty, that remanded for further findings regarding its reduction of the economic benefit portion of the penalty.
This case involves a question of whether Ferrierl warnings are required when a fish and wildlife officer finds fresh cow elk deaths, a cigarette butt, and tracks leading to a person's home, where he finds fresh blood spots and I suspect smoking the same brand of cigarettes found at the scene. Ferrierl warnings are generally required when an officer is seeking consent to search, and require that the officer provide notice that the suspect may refuse consent. Here, the suspect asked if you would be ticketed. The officer said that he would need to see the elk first, which were hanging shed. Because the officer never asked to see the home, or the shed, but only the elk, the court concluded that the warnings did not apply.
Gomez was convicted of homicide by abuse and first-degree manslaughter in the death of her two-year-old son. She challenged the sufficiency of the evidence as to a pattern of torture or abuse. The court held that the evidence was sufficient. However, the court was required to vacate the first-degree manslaughter charge is a violation of double jeopardy.