Last year, the Washington state legislature ordered the State Department of Health to establish guidelines for a 60 day supply. The Department of Health’s first proposal of 35 ounces of usable marijuana plus 100 square feet of growing space was referred back by Governor Gregoire for more input from law enforcement and medical experts. Read about this process in an earlier article in The Seattle Times here. Earlier this year, the standards were reduced to 24 ounces of usable marijuana, six mature plants, and 18 immature plants. The standards finalized on October 2, 2008, does not differentiate between mature and immature plants.

Patients and advocates criticize the standards, arguing the amount is inadequate for a true 60 day supply and that the lack of differentiation between mature and immature plants does not accurately reflect marijuana’s growing cycle or ratio between viable and non-viable plants.

Others, including the ACLU of Washington’s drug policy director, appreciate the bright-line rule articulated for law enforcement to follow.

King County Prosecuting Attorney Dan Satterberg agrees that the rule is helpful, but is not the end of the analysis. Satterberg has stated that his office’s policy is that if someone is legitimately ill or dying of cancer in King County, his office will not prosecute that individual if they have 15 plants or 30. Satterberg has advised King County law enforcement not to confiscate patient’s marijuana supplies, but to take a small sample and some pictures if the legitimacy is questioned. Satterberg has also articulated standards for growers, including cooperatives, against prosecution unless there is evidence that marijuana is not being grown for distribution to ill patients.

Persons convicted of unlawfully possessing or distributing marijuana face serious consequences. For context, 24 ounces of usable marijuana alone is equivalent to approximately 683 grams. In Washington state under RCW 69.50.4014, possession of marijuana less than 40 grams is a simple misdemeanor where persons convicted face a mandatory 1 day in jail and $250 fine. However, according to RCW 69.50.4013 possession of marijuana more than 40 grams is a class C felony where an individual could face up to 5 years of imprisonment and up to $10000 in fines. Additionally, delivery of a controlled substance is also a felony offense.

According to an article in the Seattle Times, some of the main changes will be:

• Drug crimes involving possession of less than 3 grams of cocaine, heroin, or methamphetamine; and less than 100 grams or fewer than 12 plants of marijuana. Prior to the policy change, these charges were all filed in Superior Court and prosecuted as felonies.
• Property crime cases in which the value of the property is $1000 or less will be referred directly by law enforcement to municipal or district court as misdemeanors, excluding theft from a person or domestic violence related cases. Prior to the policy changes, cases concerning less than $500 were referred to lower courts.
• Property crime cases where the value is between $1001-$5000 will be referred to the King County Prosecuting Attorney’s Office, but will be filed in district court and defendants will be automatically extended an offer to plead guilty to a misdemeanor. If the defendant declines the offer, the case would be refiled into Superior Court as a misdemeanor. Prior to the policy changes, these cases were all filed in Superior Court as felonies.
• ID Theft cases where the loss is $1000 or less and there are no aggravating factors will be referred to lower courts as misdemeanors offenses. Prior to the policy changes, the amount was $500.

Today, Prosecuting Attorney Satterberg stated in an interview on KUOW that his office has had a tremendously high number of serious violent felonies and homicides for 2008. He indicated that his office needs to prioritize prosecuting those serious violent cases.

Police went to Kheng Xiong’s residence with a warrant for his arrest and a black & white picture of Kheng Xiong to assist in identifying him. Officers observed a minivan pull up to the residence and believed the passenger was Kheng Xiong, although he was actually Bee Xiong, Kheng’s brother.

Police immediately handcuffed Bee and performed a pat-down frisk. Bee told officers his name was Bee Xiong and that he was Kheng’s brother. He did not have identification, but he showed officers a tattoo on his arm of the letter “B”. The officers were unable to determine from the photograph if the man was Kheng Xiong.

One of the officers had previously noticed a bulge in Bee’s front pocket. He asked if there was something in his pocket that could hurt the officers and Bee responded, “No.” Bee told the officers that he did not want to be searched. The officer squeezed the bulge in Bee’s pocket and conferred with the officers, telling them he thought there was a “potential weapon” in Bee’s pocket. An officer reached into Bee’s pocket and pulled out a glass pipe that appeared to contain residue that the officers believed was a controlled substance.

Bee was arrested for possession of a controlled substance. The officers conducted a search incident to his arrest of the minivan and found a scale, money, and methamphetamine. Bee’s mother later arrived at the residence and positively identified Bee Xiong as the man police had arrested.

Bee Xiong moved for suppression of the evidence based on the unlawful pat-down frisk. The trial court granted his motion to suppress, however the Court of Appeals, Division III reversed the trial court’s decision relying on what they said was the testimony of police officers that they feared for their safety.

The Washington Supreme Court relied heavily on State v. Setterstrom, 163 Wn.2d 621, 183 P.3d 1075 (2008) in its reasoning in this case. Like in Setterstrom, Bee Xiong did not indicate that he was reaching for a weapon or that he could reach his pant pockets after he was placed in handcuffs. Unlike Mr. Setterstrom, Bee Xiong was cooperative with the police officers and was not fidgety or nervous throughout the encounter.

The Washington Supreme Court stated that no evidence existed in the record to support the Court of Appeal’s conclusion that the officers feared for their safety. The Supreme Court held that the scope of the frisk must be limited to protective purposes and that if an officer cannot articulate specific facts that create an “objectively” reasonable belief that a suspect is armed and “presently” dangerous, then no further intrusion is justified. The Supreme Court held that in Bee Xiong’s case, there were no specific facts to support a reasonable belief that Bee was armed and presently dangerous. The officers may have had some generalized concerns about safety, but none were specific to Bee.

All evidence obtained as a result of the unlawful pat-down of Bee should have been suppressed, as well as evidence discovered during the search incident to arrest of Bee’s minivan.

Police observed a man sitting in his parked car outside a casino. The registered owner of the vehicle had an outstanding arrest warrant for a revoked driver’s license. The driver matched the registered owner’s description, so the police officer turned around to contact the driver. The driver drove away and the police officer followed. The driver turned into a Taco Bell driveway and parked. The police officer turned on its emergency lights and pulled in behind the car.

The driver, Mr. Adams, stepped out of his vehicle, stood in the open car door, and yelled at the officer that the stop was racial profiling. The police officer instructed Mr. Adams to get back in his car, but Mr. Adams kept yelling. The officer called for back-up. Mr. Adams slammed the car door, locked it, and stepped four to five feet away into the adjacent parking lot, where he continued to yell at the police officer and raise his arms in an agitated manner.

When the second officer arrived, Mr. Adams complied with police instructions. He was put in handcuffs and instructed to identify himself, which he refused. The officer frisked him and removed his keys and wallet, confirming his identity as the registered owner. He was arrested on the warrant and for failing to provide information. The second officer took his keys and unlocked his vehicle. The officers searched the passenger compartment and found cocaine in the center console. The officers impounded the vehicle.

Mr. Adams contested the search and moved to suppress the cocaine. The trial court denied his motion. Mr. Adams was convicted of possessing cocaine.

Washington permits automobile searches incident to arrest “immediately subsequent to the suspect’s being arrested, handcuffed, and placed in a patrol car,” where there is a close physical and temporal proximity between the arrest and the search. The Court of Appeals reviewed other similar cases from Divisions II and III dealing with searches incident to arrests involving automobiles, specifically the question of how close the arrestee must be to the vehicle.

The Court of Appeals reviewed State v. Perea from Division II. In that case, Mr. Perea was observed driving a vehicle, had a suspended license, parked in his front yard and the police officer pulled in behind him and turned on his emergency lights. Mr. Perea exited the car, closed and locked the door, and walked towards his house. The officer ordered Mr. Perea back to his vehicle, but Mr. Perea kept warlking. When a second officer arrived, Mr. Perea was arrested and handcuffed. The officers seized his keys, unlocked and searched the car, and found a loaded pistol. Court of Appeals, Division II, ruled that the search of the car was unlawful because the officers had no justification for entry into the car, but distinguished its holding from cases where the defendant locked his car after seizure.

In this case, the Court of Appeals, Division I questioned the usefulness of Perea because its analysis on this case focuses on the arrestee’s proximity to the vehicle at the time of the arrest due to officer safety and evidence preservation issues. The Court of Appeals in this case also finds that it takes only a second to unlock a car door for an arrestee to gain access to a weapon or exposed evidence. The Court held that a vehicle locked in the presence of investigating officers is not equivalent to a locked container inside a vehicle.

Ultimately, the Court held that Mr. Adams was in close temporal and spatial proximity to his car when he was arrested as he was never more than 4 or 5 feet away and was at all times closer than the police officer. He retained the keys to the car and could have reached it in a few steps. Additionally, unlike the defendants in many of the other cases examined (Porter, Rathbun, and Quinlivan), Mr. Adams did not move away from his car. He was agitated and belligerent and the officer had legitimate officer safety concerns. Therefore, Mr. Adams was a recent occupant in immediate control of his car at the time of arrest and the search was justified.

Ms. Rose was arraigned on drug charges relating to a marijuana grow operation. Ms. Rose’s only criminal history was a conviction for driving with a suspended license from 1989. She had no history of failing to appear for court and she had a stable address and employment. The Court released Ms. Rose on her own personal recognizance, but imposed “standard drug conditions” such as weekly UA’s, no possession or use of non-prescribed drugs, no consumption of alcohol, and no entering locations where alcohol is the principal item for sale.

Ms. Wilson was charged with unlawfully possessing firearms. Ms. Wilson’s prior criminal history included a bail forfeiture for recreational fishing and a kidnapping conviction. There was also no proof that Ms. Wilson had a history of failing to appear for court. The court had no evidence before it that Ms. Wilson was herself a drug user, but ordered weekly UA’s as part of the conditions for Ms. Wilson’s pretrial release.

Mr. Wentz was charged with possession of a controlled substance and unlawful possession of firearms. Mr. Wentz’s criminal history consisted of misdemeanors and theft charges, but nothing since 2001. At the arraignment, the Court ordered weekly UA’s over his defense attorney’s objections. At a later omnibus hearing, the Court learned that Mr. Wentz had a positive UA for drugs and revoked his previously posted bail. Mr. Wentz was remanded into custody.

The UA condition required the defendants to provide weekly samples to the Mason County Probation Department and to pay for the UA testing. Ms. Rose, Ms. Wilson, and Mr. Wentz appealed their conditions of pretrial release to the Court of Appeals.

The Court of Appeals reviewed CrR 3.2 regarding pretrial release conditions and a recent case, Butler v. Kato, 137 Wn. App. 515, 154 P.3d 259 (2007), prohibiting courts from ordering pretrial DUI defendants to attend AA/NA meeting and to submit to evaluations for chemical dependency.

The Court of Appeals held that trial courts do have the authority to set pretrial conditions when there is evidence that a person will not appear for court or will commit a violent offense or intimidate witnesses under CrR 3.2. The Court of Appeals also held that UAs, i.e., the collection and analyses of biological samples, specifically urine, constitutes a search for Fourth Amendment purposes. Article I, section 7 of the Washington State Constitution provides greater protection to individual property rights than the Fourth Amendment.

The Court of Appeals held that the State failed to prove that drug use was a good indicator that the defendants would fail to appear or make an individualized determination that the defendant’s drug use, if any, would lead to nonappearance. Even though the trial court made a finding that Mr. Wentz presented a danger to the community, it was not tied to failing to appear. The State failed to establish a special needs exception to the warrantless, suspicionless searches.

The Court of Appeals held that without a showing that drug use leads to a higher likelihood of absconding or an individual determination that a defendant’s drug use increases the likelihood of him or her failing to appear, then no exception to the warrant requirement exists to order UA’s.

The United States Supreme Court is scheduled to consider the case of Bennie Dean Herring of Birmingham, Alabama on October 7, 2008. The Court will consider whether drugs and a gun should have been suppressed where police mistakenly searched Mr. Herring after believing he had an outstanding arrest warrant due to poor record-keeping at another police department.

Mr. Grande was a passenger in a vehicle stopped for having very dark tinted windows. When the officer pulled the vehicle over, he detected the moderate smell of marijuana coming from the car. He arrested both the driver and Mr. Grande, the passenger. He handcuffed and searched them. He found a marijuana pipe that contained a small amount of marijuana on Mr. Grande. In the car, the officer found a burnt marijuana cigarette in the ashtray. The driver claimed the cigarette as her own. Both the driver and Mr. Grande were arrested and charged with possession of marijuana. Mr. Grande was also charged with possession of drug paraphernalia.

The Court of Appeals analyzed RCW 10.31.100 and relevant caselaw to determine whether the officer’s action in arresting both the driver and the passenger was justified. The Court determined that both the language of RCW 10.31.100 and caselaw requires individualized probable cause, as there is an individual right to privacy that is protected from police intrusion. The Court held that for police to make a lawful arrest under RCW 10.31.100, there must be a finding of individualized probable cause and that the statute is consistent with constitutional probable cause.

State v. Rankin, 151 Wn.2d 689, 92 P.3d 202 (2004), decided that law enforcement is prohibited from seizing a vehicle passenger unless the officer has an articulable suspicion that person is involved in criminal activity. State v. Mendez, 137 Wn.2d 208, 970 P.2d 722 (1999), decided that police must have a basis to believe that their safety is at risk to order passengers out of vehicles or to order them to remain in the car. The officer’s arrest of Mr. Grande was not related to officer safety concerns, but was only related to the odor of marijuana in the car. The Court reasoned that the only issue was whether the officer had an objective rationale that it was Grande committing a crime and consequently, had probable cause to support his arrest.

The Court overruled State v. Hammond, 24 Wn. App. 596, 603 P.2d 377 (1979) which previously held that the odor of burning marijuana emanating from a vehicle established probable cause to arrest the passengers and the driver. The Court held that Hammond was decided prior to the United State Supreme Court’s decision in Ybarra v. Illinois, 444 U.S. 85 (1979), that articulated the right to privacy and protections against search and seizure are possessed individually.

Ultimately, the Court held that “the smell of marijuana in the general area where an individual is located is insufficient, without more, to support probable cause to arrest.” Where no other evidence exists linking the passenger to criminal activity, an arrest of the passenger on the suspicion of possession of illegal substances, and any subsequent searches, is invalid and an unconstitutional invasion of that individual’s right to privacy under the Fourth Amendment and Article I, section 9 of the Washington State Constitution. Mr. Grande’s arrest was unlawful and the evidence found as a result of his search was unlawfully seized.

Mr. Tonelli Prado was stopped as he was exiting I-5 at James Street in Seattle, WA. The police officer had observed Mr. Tonelli Prado’s car cross an 8 inch white line dividing the exit lane from the adjacent lane by approximately 2 tire widths for 1 second. Mr. Tonelli Prado was investigated and arrested for driving under the influence of intoxicants. Mr. Tonelli Prado’s motion to suppress for an unlawful seizure was denied, he was convicted, and he appealed.

The Court of Appeals analyzed RCW 46.61.140(1), which states that whenever a roadway has been divided into two or more marked lanes, a vehicle shall be driven as nearly as practicable entirely within a single lane. Because no Washington court had interpreted the phrase “as nearly as practicable,” the Court of Appeals looked to other states. Arizona has a similarly worded statute and in State v. Livingston, 206 Ariz. 145, 75 P.3d 1103 (Ariz. Ct. App. 2003), the Court held that “as nearly as practicable” indicated a legislative intent to avoid penalizing brief, momentary, and minor deviations of lane lines. There was no other violation other than Mr. Tonelli Prado’s brief incursion over the lane line, as in Livingston.

The Court held that RCW 46.61.140(1)’s use of “as nearly as practicable” demonstrates a recognition that brief incursions over the lane lines will happen. The Court held that a vehicle crossing over the line for one second by two tire widths on an exit lane does not justify a belief that the vehicle was operated unlawfully; therefore, the stop was unlawful and all evidence gained as a result should have been suppressed.

Around 5:45 AM on February 11, 2006, campus police responded to a reported burglary on the third floor of a dormitory complex on the campus of Washington State University. The officer learned that the resident’s laptop computer and acoustic guitar had been stolen. Campus police initiated a search of the dormitory complex. Campus police started on the top of the complex, either the 12th or 13th floor, and walked the halls, eventually reaching the 6th floor.

Mr. Houvener and another person were in Mr. Houvener’s room on the 6th floor and the campus police heard voices and music which seemed suspicious around 6 AM. The police listened at the threshold and heard someone say he was paranoid they were going to be caught and a second voice say he didn’t think the victim would call the cops. The campus police officer put his finger over the peephole and tried a ruse to gain entry.  The residents ignored the ruse until the officer identified himself as a police officer and ordered them to open the door. Mr. Houvener opened the door. The officer, dressed in his police uniform and armed, asked Mr. Houvener to step into the hallway and down the hall with him. Mr. Houvener complied. Campus police asked Mr. Houvener questions and he made incriminating statements that some of the items in the room didn’t belong to him.

The other person in his room also made incriminating statements. Both suspects were not provided Miranda warnings. Mr. Houvener was arrested, Mirandized, and was asked to retrieve the stolen items from his room, which he did. Mr. Houvener was not provided with Ferrier warnings prior to the search.

The Court found that the police did not have permission from Mr. Houvener or anyone other resident on the 6th floor to enter and search the 6th floor. The Court found that Mr. Houvener shared a bathroom and study lounge with other residents of the 6th floor, that each floor was limited to one sex, and that persons cannot access any of the floors unless he or she is a resident with a special pass key or is escorted by a resident. The Washington State University housing authorities had issued passkeys to the campus police. The police conducted walk-through inspections of the dorm hallways without having been invited or without receiving consent. These walk-throughs occasionally uncover evidence of criminal activity, i.e. minor drinking, smoking marijuana, which leaded to further investigation and warrantless searches and/or arrests.

The Court held that Mr. Houvener had a reasonable expectation of privacy in the hallway of the dormitory that he shared with his 6th floor residents. The Court found that the intimate spaces, close quarters, shared bathrooms, and study areas differentiated the dormitory hallway area from their status as tenants in an apartment building.

The Court held that the police were not lawfully present in the student resident’s sixth floor living area because the police did not have a warrant and did not have consent from a 6th floor resident. The Court held that Mr. Houvener did not consent to the police search and the victim’s consent as the victim was a member of a different living group was not valid over the 6th floor hallway where Mr. Houvener lived.

Police received a complaint of a disturbance involving a black man and another man in a black shirt and arrived at the location. The disturbance was alleged to have occurred 5-10 minutes before the police officer arrived. Nothing was at the intersection. The officer went to a convenience store that was in the direction that one of the males had run and saw a car in the stall of a car wash and a male in a black shirt. The officer spoke to the clerk of the store, who knew nothing of the disturbance. The officer pulled his patrol car up to the man in the black shirt, Mr. Dorey, who was getting in his car to leave. The officer yelled at Mr. Dorey to hold on a minute and indicated that he wanted to talk to him. Mr. Dorey stopped his car and got out to speak to the officer.

Mr. Dorey told the officer he saw a group of people, one matching the description of one of the parties of the disturbance, but they had just left. The officer asked for Mr. Dorey’s identification, which he provided. The officer recorded the information and Mr. Dorey left. The officer ran the information for warrants as Mr. Dorey left and then took off after Mr. Dorey when the search turned up positive for outstanding warrants.

The officer found Mr. Dorey walking away from his car and saw Mr. Dorey throw a fanny pack into the bushes. Mr. Dorey was arrested on the warrants and was charged with possession of methamphetamine that was found in the recovered fanny pack.

The Court of Appeals held that the police officer’s seizure of Mr. Dorey when he yelled for him to stop was not reasonable under the Fourth Amendment. Mr. Dorey was a witness at most, not a suspect. The Court found that the alleged crime had occurred earlier and no exigent circumstances were present to justify Mr. Dorey’s seizure as a witness to a crime. The Court reviewed State v. Carney, 142 Wn. App. 197, 174 P.3d 142 (2007), which was recently decided holding that police cannot seize persons without articulable suspicion of criminal activity and that just because a person may have information of a crime, that doesn’t justify an unconstitutional intrusion into their personal affairs, absent exigent circumstances or officer safety concerns.

The Court also held that the officer’s recording of Mr. Dorey’s information was also not reasonable as he didn’t provide meaningful information as a witness. The recording of the information led to the discovery of the warrants and eventually the arrest and discovery of the methamphetamine. The Court held that all evidence should have been suppressed as a result of the unlawful seizure.