LEGAL UPDATE FOR WASHINGTON LAW ENFORCEMENT

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1 LEGAL UPDATE FOR WASHINGTON LAW ENFORCEMENT JANUARY 2016 TABLE OF CONTENTS FOR JANUARY 2016 LEGAL UPDATE NINTH CIRCUIT OF THE UNITED STATES COURT OF APPEALS.2 CIVIL RIGHTS ACT CIVIL LIABILITY: QUALIFIED IMMUNITY GRANTED TO LAW ENFORCEMENT OFFICERS WHO ENTERED HOME AND SEIZED CHILDREN WHERE THE OFFICERS (1) ACTED IN RELIANCE ON THE DETERMINATION BY SOCIAL SERVICES EMPLOYEES THAT THE CHILDREN WERE IN IMMINENT DANGER, AND THAT A COURT ORDER COULD NOT BE OBTAINED IN THE NEXT 36 HOURS, AND (2) WERE AWARE OF MOST OF THE CIRCUMSTANCES UPON WHICH THE SOCIAL SERVICES EMPLOYEES HAD BASED THEIR DECISION; OFFICERS WERE NOT INCOMPETENT IN RELYING ON THE SOCIAL SERVICES EMPLOYEES DETERMINATION Sjurset v. Button, F.3d, 2015 WL (9 th Cir., Dec. 4, 2015) BRIEF NOTE FROM THE NINTH CIRCUIT, U.S. COURT OF APPEALS..6 CIVIL RIGHTS ACT CIVIL LIABILITY: QUALIFIED IMMUNITY DENIED FOR SHERIFF AND OTHER GOVERNMENT ACTORS WHERE MARIO A. GARCIA WAS INCARCERATED BASED ON A WARRANT FOR THE ARREST OF MARIO L. GARCIA, WHO WAS DESCRIBED ON WARRANT AT NINE INCHES SHORTER AND 40 POUNDS LIGHTER THAN PLAINTIFF MARIO A. Garcia v. County of Riverside, F.3d, 2016 WL (9 th Cir., Feb. 3, 2016)...6 BRIEF NOTES FROM THE WASHINGTON STATE SUPREME COURT 7 SPECIAL INQUIRY JUDGE SUBPOENA BASED ON REASONABLE SUSPICION CAN SATISFY STATE CONSTITTUTION S ARTICLE I, SECTION 7 AND FEDERAL CONSTITUTION S FOURTH AMENDMENT State v. Reeder, Wn.2d., 2015 WL (Dec. 17, 2015),.7 SUPREME COURT MAJORITY DECLINES TO PROVIDE CONSTITUTIONAL RIGHT TO BEAR ARMS PROTECTION IN PARING KNIFE CASE City of Seattle v. Evans, Wn.2d, 2015 WL (Dec. 31, 2015)..8 EVIDENCE ADDS UP TO SUPPORT RECKLESS ENDANGERMENT CONVICTION WHERE THERE WAS A COMBINATION OF (1) DRIVING WHILE HIGHLY INTOXICATED WITH A YOUNG CHILD IN THE FRONT PASSENGER SEAT (ALBEIT BELTED), (2) SPEEDING PAST A POLICE CAR ON THE RIGHT IN TRAFFIC, AND Legal Update - 1 January 2016

2 (3) A MANIFESTATION OF AWARENESS OF WRONGFULNESS OF CONDUCT State v. Rich, Wn.2d, 2016 WL (Jan. 7, 2016).9 WASHINGTON STATE COURT OF APPEALS...10 TO PROTECT FREE SPEECH, INTENT PORTION OF LURING STATUTE S AFFIRMATIVE DEFENSE IS HELD TO BE A CRIMINAL INTENT ELEMENT OF THE LURING STATUTE (RCW 9A ), THUS REQUIRING THE STATE TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT ACTED WITH INTENT TO HARM THE HEALTH, SAFETY, OR WELFARE OF A MINOR OR A PERSON WITH A DEVELOPMENTAL DISABILITY State v. Homan, Wn. App., 2015 WL (Div II, Dec. 15, 2015)..10 TRIAL COURT ORDER THAT WAS BASED ON STATE S ONE-SIDED MOTION TO FREEZE CREDIT UNION ACCOUNT OF PERSON CHARGED WITH THEFT IS HELD INVALID UNDER FEDERAL CONSTITUTION S FOURTH AMENDMENT AND WASHINGTON S CRIMINAL COURT RULES, BECAUSE SUCH AN ORDER IS NOT A SEARCH WARRANT NOR A FUNCTIONAL EQUIVALENT OF A WARRANT State v. Meza, Wn. App., 2015 WL (Div. II, Dec. 15, 2015) 13 BRIEF NOTES FROM THE WASHINGTON STATE COURT OF APPEALS.16 PRIVACY ACT: RECORDING IN CASE INVOLVING INADVERTENT POCKET CALL TO VOIC POSES INTERESTING ISSUES REGARDING PRIVACY ACT (CHAPTER 9.73 RCW), BUT APPEALS COURT AVOIDS ISSUES, INSTEAD CONCLUDING SIMPLY THAT ANY ERROR BY THE TRIAL COURT IN ADMITTING THE VOIC RECORDING WAS HARMLESS State v. Sinclair, Wn. App., 2016 WL (Div. I, Jan. 27, 2016).16 COUNTY DISTRICT COURT JUDGE HAS AUTHORITY AND JURISDICTION UNDER CHAPTER 9.73 RCW AND OTHER RCWS TO ISSUE ORDER FOR INTERCEPTION AND RECORDING OF PHONE CALL IN INVESTIGATION OF FELONY State v. Bliss, Wn. App., 2015 WL (Div. II, Dec. 22, 2015) 17 IN WSP TASER-DART-TRAINING CASE, COURT OF APPEALS ALLOWS A TROOPER TO SUE WSP, APPLYING EMPLOYER-INTENT EXCEPTION TO THE WORKERS COMPENSATION STATUTORY PROVISIONS THAT GENERALLY GIVE EMPLOYERS IMMUNITY FROM EMPLOYEE LAWSUITS FOR INJURIES AT WORK Michelbrink v. WSP, Wn. App., 2015 WL (Div. II, November 24, 2015).18 *********************************** NINTH CIRCUIT OF THE UNITED STATES COURT OF APPEALS CIVIL RIGHTS ACT CIVIL LIABILITY: QUALIFIED IMMUNITY GRANTED TO LAW ENFORCEMENT OFFICERS WHO ENTERED HOME AND SEIZED CHILDREN WHERE THE OFFICERS (1) ACTED IN RELIANCE ON THE DETERMINATION BY SOCIAL SERVICES Legal Update - 2 January 2016

3 EMPLOYEES THAT THE CHILDREN WERE IN IMMINENT DANGER, AND THAT A COURT ORDER COULD NOT BE OBTAINED IN THE NEXT 36 HOURS, AND (2) WERE AWARE OF MOST OF THE CIRCUMSTANCES UPON WHICH THE SOCIAL SERVICES EMPLOYEES HAD BASED THEIR DECISION; OFFICERS WERE NOT INCOMPETENT IN RELYING ON THE SOCIAL SERVICES EMPLOYEES DETERMINATION Sjurset v. Button, F.3d, 2015 WL (9 th Cir., Dec. 4, 2015) Facts: (Excerpted from Ninth Circuit opinion) On February 18, 2010, officials at DHS [Oregon Department of Human Services] received a phone call from a medical doctor s office reporting that Jessica Borchers the significant other of Stephen Sjurset had tested positive that day for methamphetamine, amphetamines, and marijuana. Borchers, who was pregnant at the time, lived in Stayton, Oregon with Sjurset and her two- and fiveyear-old children, N.S. and T.B. Sjurset is N.S. s father and T.B. s legal guardian. The incident was not the first of its kind. In 2007, Borchers also tested positive for using methamphetamine while pregnant with her second child, N.S. As a result of that prior incident, both Borchers and Sjurset were convicted of endangering the welfare of a minor under Or. Rev. Stat T.B. was placed in temporary foster care until Borchers successfully completed a drug-treatment program. Acting on the newly registered complaint, DHS immediately initiated an investigation. DHS case worker Caryn Moller-Mata attempted to meet with Borchers and Sjurset to verify the health and safety of the two children. She first contacted Borchers on Friday, February 19, Borchers said that she was out of town and that Sjurset was taking care of the children. Moller-Mata then made several attempts to contact Sjurset, but received no response. At the end of the day, when she was unable to locate or meet with either parent, Moller- Mata called the Stayton City Police Department and requested that it dispatch officers to Sjurset s house over the weekend to conduct an in-person welfare check on N.S. and T.B. At approximately 9:00 p.m. on Saturday, February 20, officers Button, Meeks, and Mumey arrived outside Sjurset s house. Officer Button requested to speak with Borchers and to see the children, but Sjurset refused to let the officers inside the house without a warrant. When Borchers appeared at the door, however, she said that the officers could view the children through the front window. Unsure of what to do next, the Stayton officers contacted DHS for further guidance. DHS dispatched an on-duty social worker, Mary Anne Miller, to the scene. On the way to Sjurset s house, Miller phoned Moller-Mata and the two discussed Sjurset s and Borchers s prior child-endangerment convictions and their refusals to cooperate with the ongoing DHS investigation. Importantly, because these events transpired on a Saturday evening, DHS officials could not obtain a court order authorizing the children s removal until the following Monday morning, which was at least 36 hours away. Legal Update - 3 January 2016

4 Miller then contacted her supervisor, Dyan Bradley, to evaluate the situation. They discussed Borchers s recent positive drug test, Sjurset's and Borchers's refusal to cooperate, their prior convictions, and the risk of leaving the children in the care of the couple for another 36 hours. In light of these concerns, Miller and Bradley made an on-the-spot decision to take the children into protective custody without a court order. All the parties are in agreement that the Stayton officers did not participate in the decision by Miller and Bradley to take protective custody of the children. The parties further agree that Miller and Bradley made the protective-custody determination prior to the Stayton officers entry into the house. Finally, the record indicates that the Stayton officers did not make their own independent judgments as to whether there was probable cause to enter the home and remove the children without a warrant. In accordance with DHS s determination, the Stayton officers entered the house alongside Miller and removed N.S. and T.B. The district court s opinion notes that DHS concede[d] that there was no visual evidence of drug use in the area of the house that the officials occupied while the children were removed. No other part of the house was searched. N.S. and T.B. were placed into temporary foster care and, following a shelter hearing two days later, DHS obtained custody. Proceedings below: Sjurset brought a Civil Rights Act lawsuit against the City of Stayton law enforcement officers and others involved in taking the children from his home. The U.S. District Court denied the summary judgment motion of the City of Stayton law enforcement officers who sought a ruling of qualified immunity for their part in the case. ISSUE AND RULING: For purposes of Civil Rights Act civil liability, should qualified immunity be granted to law enforcement officers who entered a home and seized children where the officers: (1) acted in reliance on the determination by social services employees that the children were in imminent danger, and a court order could not be obtained in the next 36 hours; and (2) were aware of most of the circumstances upon which the social services employees had based their decision? (ANSWER: Yes, they are entitled to qualified immunity) Result: Reversal of U.S. District Court (Oregon) order that denied summary judgment to officers; remand to District Court for entry of a summary judgment order in favor of the officers. ANALYSIS: The Ninth Circuit concludes that the City of Stayton law enforcement officers are entitled to qualified immunity from Civil Rights Act civil liability under the facts of this case. Qualified Immunity Review Standard In a Civil Rights Act case where government officers are seeking a ruling that they are entitled to qualified immunity, the factual allegations by the plaintiff (the suing party), must generally be taken as true and viewed in the best light for the plaintiff. The government officers being sued are entitled to qualified immunity from liability under the Act if, under the allegations of the plaintiffs: (1) the officers did not violate any constitutional Legal Update - 4 January 2016

5 standard; or (2) if the officers violated a constitutional or statutory standard, the case law (either from the United States Supreme Court or from lower appellate courts), at the time of the officers actions, had not clearly established the standard such that a reasonable officer should have known that standard. The U.S. Supreme Court has given lower courts discretion to avoid answering the first question regarding what constitutes the absolute, black letter constitutional standard, if such lower courts conclude: (1) that the case law on point was not clearly established at the time of the officers actions, and (2) that it is best not, in the case at hand under the facts alleged, to try to draw the line on what constitutes the constitutional standard. Under the clearly established standard, qualified immunity gives government officials breathing room to make reasonable but mistaken judgments. Qualified immunity protects all but the plainly incompetent or those who knowingly violate the law. The courts do not require a case directly on point before concluding that the law is clearly established, but past decisions cannot be viewed at too high a level of generality. Precedent from the United States Supreme Court, or form appellate courts generally, must have placed the statutory or constitutional question beyond debate under the alleged facts. And even then, there may be rare circumstances, where, as the Ninth Circuit panel determines as an alternative rationale here, law enforcement officers failure to be aware of the clearly established law can be determined to be reasonable. Ninth Circuit Panel s Grounds For Granting Qualified Immunity The Ninth Circuit panel concludes that the City of Stayton law enforcement officers acted reasonably in assisting the DHS personnel in removing the children from the home in reliance on the directions of the Oregon DHS personnel: We thus decline to find that the Stayton officers were either plainly incompetent of that they knowingly violated the law when they relied on DHS determination that Sjurset s children were in imminent danger. The panel s opinion also notes: To hold otherwise would place the Stayton officers in a Catch-22 situation: either challenge DHS determination, which could potentially endanger the children s safety and put the officers at risk of liability or discipline if harm had befallen the children, or carry out DHS instructions in the absence of a court order at the risk of being sued for violating the children s and the parents constitutional rights. The Ninth Circuit panel points out that the Stayton officers did not blindly act. The Stayton officers were aware of most of the details of the Oregon DHS investigation and of the protectivecustody determination of the Oregon DHS personnel that the children were in imminent danger and should be removed from the home as soon as possible. For instances, the Stayton officers were aware that very recently the children's mother had tested positive for methamphetamine and other drugs, and that she had previously been convicted of child endangerment based on an incident involving similar conduct. The Stayton officers also witnessed first-hand Sjurset's and Borchers's refusals to permit any official from meeting with or speaking to the children, effectively preventing the officers from verifying the children's safety. Finally, the Stayton officers knew that a warrant could not be procured for at least 36 hours, which amplified the perceived risk of jeopardizing the children's safety in the intervening period. Under these circumstances, the Ninth Circuit panel concludes, the Stayton officers were not incompetent in believing that they were legally authorized to act in reliance on DHS's determination, and, alternatively, even if the Stayton officers were mistaken in their belief that they could remove the children at the direction of DHS without court authorization, their actions were objectively reasonable under the circumstances. LEGAL UPDATE EDITORIAL COMMENT: In my extended comments on State v. Weller, 185 Wn. App. 913 (Div. II, 2015) March 15 Legal Update:07, I stated my understanding of Legal Update - 5 January 2016

6 the Fourth Amendment case law that the legal standard for warrantless forced entry by law enforcement officers or other government agents (such as the DSHS personnel in that case) into a residence to check on the health and safety of children or others in the home generally must be based on a conclusion that such warrantless, forced entry is needed because someone inside is in imminent danger. Nothing in the analysis in the Sjurset decision suggests otherwise. I also made the following comment in the March 2015 Legal Update, and I believe that the comment is also appropriate in relation to the Sjurset opinion digested above: This appellate court decision seems a good one for a discussion among local law enforcement agencies, legal advisors, prosecutors offices, and the various government players (including DSHS) involved in protecting children. My understanding is that many law enforcement agencies and social workers received comprehensive advice from legal advisors and prosecutors on how to deal with many aspects of child protection investigations after the Ninth Circuit decided Greene v. Camreta, 588 F.3d 1011 (9 th Cir. 2009) Feb 10 LED:05, and again after the United States Supreme Court vacated the Ninth Circuit decision in Camreta on mootness grounds (not addressing the merits of the Ninth Circuit decision) in Camreta v. Greene, 131 S. Ct (2011) Aug 11 LED:12. While Camreta focused on the narrower issue of when the circumstances surrounding officers talking to allegedly abused children in a school setting may constitute a non-consenting and therefore unlawful Fourth Amendment seizure, I understand that follow-up advice from legal advisors and prosecutors was more comprehensive. I think that the Sjurset decision might provide an excellent launching pad for further discussions of search and seizure law related to child protection investigations. Forced entry of a home without a warrant or other authorizing court order is always legally risky. ********************************** BRIEF NOTE FROM THE NINTH CIRCUIT, U.S. COURT OF APPEALS CIVIL RIGHTS ACT CIVIL LIABILITY: NO QUALIFIED IMMUNITY FOR GOVERNMENT ACTORS WHERE MARIO A. GARCIA WAS INCARCERATED BASED ON A WARRANT FOR THE ARREST OF MARIO L. GARCIA, WHO WAS DESCRIBED ON WARRANT AT NINE INCHES SHORTER AND 40 POUNDS LIGHTER THAN PLAINTIFF MARIO A. In Garcia v. County of Riverside, F.3d, 2016 WL (9 th Cir., Feb. 3, 2016), a threejudge Ninth Circuit panel affirms the U.S. District Court s denial of qualified immunity and absolute (quasi-judicial) in an action brought by Mario A. Garcia pursuant to 42 U.S.C and state law. Mario A. Garcia alleges that he was wrongfully incarcerated in November 2012 by the Los Angeles County Sheriff s Department due to the misapplication of a felony warrant issued in 1994 for Mario L. Garcia, who has the same date of birth as plaintiff, but who is nine inches shorter than the plaintiff. The arrest warrant provided the height and weight of Mario L. Garcia at the time of issuance. The panel rules that, taking the plaintiff s allegations at face value and considering them in the best light for plaintiff (which courts must do when considering a motion to dismiss a Civil Rights Act lawsuit), plaintiff sufficiently pleaded a Fourteenth Amendment Due Process violation arising from officers failure to investigate his claim of mistaken identity after he was arrested. The Legal Update - 6 January 2016

7 panel also rules that the case law was established on this point such that the officers must be denied qualified immunity protection. The panel emphasizes that there was a significant physical discrepancy of a nine-inch difference in height and 40 pounds of weight. This was accompanied by Mario A. Garcia s complaints that he being misidentified. Such facts, the Ninth Circuit panel rules, should have prompted officers to engage in readily available and resource efficient [i.e., inexpensive] identity checks, such as a fingerprint comparison, to ensure that they were not detaining the wrong person. The Ninth Circuit panel also holds that the Sheriff himself is not immune from the lawsuit. The panel explains the focus in assessing the Sheriff theory of qualified immunity individually is the alleged lack of adequate procedures: It is true that prison officials charged with executing facially valid court orders enjoy absolute immunity from section 1983 liability for conduct prescribed by those orders. Engebretson v. Mahoney, 724 F.3d (9th Cir. 2013). However, absolute immunity applies only to the fact of a prisoner s incarceration pursuant to a facially valid court order i.e., the prison official in question must act within his or her authority and strictly comply with the order. Engebretson (emphasis in original). Here, according to Plaintiff s allegations, Baca did not strictly comply with the order, as it was applied to the wrong person, and Plaintiff challenged not just the fact of his incarceration, but also the lack of procedures to prevent the misidentification. Because the facts Plaintiff has alleged go beyond the limits of quasi-judicial immunity, this immunity does not apply to [Sheriff] Baca. Result: Affirmance of U.S. District Court (Central District of California) orders denying summary judgment to the government defendants. LEGAL UPDATE EDITORIAL NOTE REGARDING JANUARY 2016 LED ENTRY ON THIS DECISION: The Garcia decision is addressed in the AGO/CJTC s January 2016 Law Enforcement Digest at pages 1-2. LEGAL UPDATE EDITORIAL COMMENT: This case required that the Ninth Circuit panel put the above facts and additional facts relating to what happened to the plaintiff and his complaints about being incarcerated under the warrant into the context of the California state and local administrative systems. It is possible that this Ninth Circuit decision has limited precedential impact due to the extreme disparity in the facts in this case, as well as differences in the records and administrative systems in other jurisdictions. Nonetheless, I feel that in modern times appellate courts will look for a remedy for unlawful incarceration where there is such a discrepancy (particularly height) between: (1) the adult arrested person who is telling officers that he is not the person named on an arrest warrant, and (2) the adult person described on the arrest warrant. ********************************** BRIEF NOTES FROM THE WASHINGTON STATE SUPREME COURT (1) SPECIAL INQUIRY JUDGE SUBPOENA BASED ON REASONABLE SUSPICION CAN SATISFY STATE CONSTITUTION S ARTICLE I, SECTION 7 AND FOURTH AMENDMENT Legal Update - 7 January 2016

8 In State v. Reeder, Wn.2d., 2015 WL (Dec. 17, 2015), in a 7-2 decision, the Washington Supreme Court affirms the ruling of the Court of Appeals (see September 14 LED:19) and holds that a special inquiry judge (SIJ) subpoena can satisfy article I, section 7 of the Washington Constitution. While the Washington constitution (unlike the federal constitution s Fourth Amendment) provides privacy protection against the State for a person s bank records, which were the object of the subpoena in Reeder. The majority opinion of the Washington Supreme Court holds that an SIJ subpoena based on reasonable suspicion was authority of law that satisfied the Washington constitution s article I, section 7 under the circumstances of this case. Chapter RCW governs SIJ proceedings. The special inquiry proceedings are triggered by a prosecutor asking a superior court judge to initiate the proceedings. The SIJ proceedings are somewhat similar to federal grand jury proceedings in regard to the subpoena issue presented in this case. Special inquiry proceedings are secret. A special inquiry judge is a superior court judge designated by a majority of the superior court judges of a county to hear and receive evidence of crime and corruption. RCW Special inquiry judges are authorized to issue subpoenas when the petitioner has reason to suspect crime or corruption..., and there is reason to believe that there are persons who may be able to give material testimony or provide material evidence concerning such suspected crime or corruption. RCW (emphasis added). The Washington Supreme Court majority opinion holds that RCW requires a showing of reasonable suspicion to issue a subpoena. That showing is at least as great as that required to satisfy the requirements for a grand jury subpoena under the Fourth Amendment. The Court rejects the defendant s argument that article I, section 7 of the Washington Constitution requires probable cause for issuance of a special inquiry judge subpoena. Result: Affirmance of Court of Appeals decision that affirmed the King County Superior Court convictions of Michael J. Reeder for 14 counts of securities fraud and 14 counts of first-degree theft by deception. LEGAL UPDATE EDITORIAL NOTE REGARDING OTHER READING ON SPECIAL INQUIRY JUDGE PROCEEDINGS: There is a model policy for SIJ proceedings (updated through July 1, 2014) available on the home page (under What s New) of the website of the Washington Association of Prosecuting Attorneys (WAPA) at: Additionally, Confessions, Search, Seizure and Arrest: A Guide for Police Officers and Prosecutors May 2015, by Pamela B. Loginsky, Staff Attorney, WAPA, contains a discussion of SIJ proceedings at pages The 2015 version of Ms. Loginsky s Guide is available on the CJTC s LED Internet page and also on the Home Page (under What s New ) of the website of the WAPA. (2) WASHINGTON SUPREME COURT MAJORITY DECLINES TO PROVIDE CONSTITUTIONAL RIGHT TO BEAR ARMS PROTECTION IN PARING KNIFE CASE In City of Seattle v. Evans, Wn.2d, 2015 WL (Dec. 31, 2015), the Washington Supreme Court affirms by a 5-4 vote the non-felony conviction of Wayne Anthony Evans for violating a Seattle weapons ordinance by carrying a small, fixed-bladed paring knife. The lengthy majority opinion authored by Justice Wiggins concludes that protections of the right to bear arms under Article I, section 24 of the Washington Constitution and the Second Amendment to the United States Constitution do not extend to a paring knife. Justice Fairhurst Legal Update - 8 January 2016

9 authors an even lengthier dissenting opinion that is joined by Justices Gordon McCloud, Owens, and Johnson. Result: Affirmance of Court of Appeals opinion that affirmed a King County Superior Court decision that affirmed a City of Seattle Municipal Court conviction of Wayne Anthony Evans for violating a City of Seattle weapons ordinance. (3) EVIDENCE ADDS UP TO SUPPORT RECKLESS ENDANGERMENT CONVICTION WHERE THERE WAS A COMBINATION OF (1) DRIVING WHILE HIGHLY INTOXICATED WITH A YOUNG CHILD IN THE FRONT PASSENGER SEAT (ALBEIT BELTED), (2) SPEEDING PAST A POLICE CAR ON THE RIGHT IN TRAFFIC, AND (3) A MANIFESTATION OF AWARENESS OF WRONGFULNESS OF THE CONDUCT In State v. Rich, Wn.2d, 2016 WL (Jan. 7, 2016), the Washington Supreme Court is unanimous in reversing the Court of Appeals and affirming the conviction of defendant for reckless endangerment in violation of RCW 9A The Supreme Court opinion s introduction briefly summarizes the opinion as follows: A jury convicted Andrea Rich of driving under the influence (DUI) and reckless endangerment. RCW and RCW ; RCW 9A The evidence showed that Rich was speeding in traffic while highly intoxicated and with a young child in the front passenger seat. But the officer who arrested Rich followed her car because he believed that the car was stolen; Rich s manner of driving posed no observable danger. The Court of Appeals reversed the reckless endangerment conviction, holding that the evidence was insufficient to establish that Rich's driving created an actual, substantial risk of death or serious physical injury to another person. State v. Rich, 186 Wn. App. 632 (2015). The Court of Appeals ruled, on an issue of first impression, that proof of a DUI does not necessarily establish proof of reckless endangerment. See the August 2015 Legal Update at page 21. We agree with the Court of Appeals that proof of DUI alone does not necessarily establish proof of reckless endangerment. But the State proved more than just DUI in this case. It also proved speeding, past a police car, in traffic, by a driver whose breath alcohol level was more than twice the legal limit [BAC over.180 one hour after arrest], who showed awareness that she had done something wrong once stopped [trying to concoct an exculpatory story with her youthful passenger], and who had a young child [under 10] in the front passenger seat. Construing the evidence in the light most favorable to the State, a reasonable juror could conclude beyond a reasonable doubt that Rich created a substantial risk of death or injury to her passenger, that Rich knew of the substantial risk, and that Rich disregarded that risk in gross deviation from the way a reasonable person would act in her situation. We therefore reverse the Court of Appeals and affirm the reckless endangerment conviction. The Supreme Court opinion notes that also relevant are the following facts: (1) the defendant acknowledged that she knew that the legal limit for BAC is.08, (2) she admitted that she was tipsy, at the time of arrest, and (3) at the time of her arrest, she exhibited manifestations of intoxication in her slurred speech and watery bloodshot eyes. Also, the fact that the youngster in the car was wearing a seatbelt does not undercut her conviction. Legal Update - 9 January 2016

10 Result: Reversal of Court of Appeals decision and affirmance of King County Superior Court conviction of Andrea Marie Rich for reckless endangerment. Note that Ms. Rich s conviction for DUI was affirmed by the Court of Appeals and not reviewed by or affected by the Washington Supreme Court decision. ********************************** WASHINGTON STATE COURT OF APPEALS TO PROTECT FREE SPEECH, INTENT PORTION OF LURING STATUTE S AFFIRMATIVE DEFENSE IS HELD TO BE A CRIMINAL INTENT ELEMENT OF THE LURING STATUTE (RCW 9A ), THUS REQUIRING THE STATE TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT ACTED WITH INTENT TO HARM THE HEALTH, SAFETY, OR WELFARE OF A MINOR OR A PERSON WITH A DEVELOPMENTAL DISABILITY State v. Homan, Wn. App., 2015 WL (Div II, Dec. 15, 2015) Facts (Excerpted from 2014 Washington Supreme Court opinion): Early one summer evening in the small rural community of Doty, Washington, 9 year old C.C.N. was sent by his mother to the nearby store to buy milk. As he was walking along the road toward the general store, Homan, a 37 year old man, rode past on a child's Superman BMX bicycle. As Homan rode by, he said, Do you want some candy? I've got some at my house. C.C.N. said nothing and continued walking. Homan rode on without slowing, stopping, or looking back. There were two other children nearby, but Homan was closest to C.C.N. when he spoke. C.C.N. did not know Homan and told his mother about the incident when he returned home. She drove him back into town where they saw Homan on his Superman BMX bicycle. C.C.N. s mother called the sheriff's office, and [a sergeant] spoke with Homan, who admitted riding his bicycle in the general store s vicinity. Prior Proceedings: Homan was convicted of luring in Lewis County Superior Court. Division Two of the Court of Appeals reversed. See March 2013 LED:13. The Washington Supreme Court reversed the Court of Appeals decision but remanded the case to the Court of Appeals for that Court to address the issue of whether the luring statute is overbroad in violation of First Amendment free speech protection. See State v. Homan, 182 Wn.2d 102 (2014) October 2014 LED:12. ISSUES AND RULINGS: (1) Is the luring statute overbroad because the statute significantly impacts Free Speech protected under the First Amendment? (ANSWER BY COURT OF APPEALS: Yes) (2) Can the luring statute s constitutionality be preserved by reading the intent portion of the affirmative defense of the statute as a mental state element, thus requiring the State to prove beyond a reasonable doubt that the defendant had intent to harm the health, Legal Update - 10 January 2016

11 safety, or welfare of the minor or the person with the developmental disability? (ANSWER BY COURT OF APPEALS: Yes) Result: Reversal of Lewis County Superior Court conviction of Russell David Homan for luring; remand of the case for a new trial under the new interpretation of the statute. Status: The most recent Court of Appeals decision is final; no petition for discretionary review was filed by the State. ANALYSIS: RCW 9A provides that a person commits the crime of luring if the person: (1)(a) Orders, lures, or attempts to lure a minor or a person with a developmental disability into any area or structure that is obscured from or inaccessible to the public or into a motor vehicle; (b) Does not have the consent of the minor s parent or guardian or of the guardian of the person with a developmental disability; and (c) Is unknown to the child or developmentally disabled person. (2) It is a defense to luring, which the defendant must prove by a preponderance of the evidence, that the defendant s actions were reasonable under the circumstances and the defendant did not have any intent to harm the health, safety, or welfare of the minor or the person with the developmental disability. For purposes of this statute, minor refers to a person under the age of 16 and a person with a developmental disability means a person with a developmental disability as defined in RCW 71A (5). RCW 9A (3)(a)-(b). The Legislature has not defined the terms lure and luring. However, case law has defined lure as an invitation accompanied by an enticement. RCW 9A does not require a defendant to engage in any conduct to commit the crime of luring. Luring may be committed with words alone. RCW 9A as written contains no criminal intent requirement. First Amendment Free Speech analysis asks whether a statute prohibits a substantial amount of constitutionally protected speech. The Court of Appeals points to the examples of such protected speech that were provided in briefing by the defendant and by the American Civil Liberties Union (ACLU): Homan and the ACLU provide several examples of constitutionally protected speech that would violate RCW 9A (1). Homan identifies these scenarios: (1) political speech, where a student invites minors or developmentally disabled people to his or her house to discuss school district policies with an enticement of cupcakes; (2) a statement made in an attempt at humor by a student comedian at a talent show; (3) a genuine offer of help, where a good Samaritan offers to drive an injured child to the hospital for aid; (4) statements misunderstood as orders, where a school bus driver would be in violation for telling a child to Hop in! absent parental consent; and (5) an invitation from one child to another to play inside his or her home. Similarly, the ACLU identifies these scenarios: (1) Legal Update - 11 January 2016

12 an offer of help directing a lost child to an administrative office with the enticement of hot chocolate once they arrive, (2) a retail clerk asking a wandering child to come inside her store to play with the latest toys on sale, (3) a responsible person directing a bullied developmentally disabled person to a safe place and telling the person that he could watch his favorite movie until his guardian arrived, and (4) a librarian directing a minor patron to take the elevator to a different floor of the library to locate a book the minor is excited about reading. In addition, Homan notes that RCW 9A (1) prohibits mere jests and idle talk. And the ACLU points out that a person could violate RCW 9A (1) by using hyperbole, such as telling someone to take a long hike off a short pier or to go to the moon. The First Amendment prohibits criminalization of communications that are merely jokes, idle talk, or hyperbole..... The Court of Appeals concludes that the luring statute does prohibit a substantial amount of constitutionally protected speech, but the Court concludes that the First Amendment defect can be cured by reading into the statute a criminal intent element: Here, we can cure the unconstitutional overbreadth of RCW 9A by placing a limiting construction on the statutory language implying a criminal intent element for the crime of luring. Under this construction, a person will be guilty under RCW 9A only if the State proves that his or her conduct was done with the intent to harm the health, safety and welfare of the minor or person with a developmental disability..... We have an obligation to interpret RCW 9A in a manner that upholds its constitutionality if possible. Accordingly, we hold that RCW 9A must be interpreted as containing an implied criminal intent element for the crime of luring that the State must prove that the defendant's conduct was done with the intent to harm the health, safety and welfare of the minor or person with a developmental disability. When this limiting construction is applied to RCW 9A , the statute is not unconstitutionally overbroad under the First Amendment. [Bolding added] Finally, the Court concludes that Homan must be retried under this new interpretation of the statute, because the trial court record does not establish that any reasonable trier of fact would have found Homan guilty beyond a reasonable doubt. LEGAL UPDATE EDITORIAL COMMENT: Subsection 2 of RCW 9A addresses both reasonableness and intent: It is a defense to luring, which the defendant must prove by a preponderance of the evidence, that the defendant s actions were reasonable under the circumstances and the defendant did not have any intent to harm the health, safety, or welfare of the minor or the person with the developmental disability. Legal Update - 12 January 2016

13 The Court of Appeals does not expressly address the question of whether the reasonableness portion of the affirmative defense to luring must also be part of the State s burden of proof such that the State must prove beyond a reasonable doubt that (1) the defendant s actions were not reasonable under the circumstances, and (2) the defendant intended to harm the health, safety, or welfare of the minor or the person with the developmental disability. It seems likely that defendants will argue that both unreasonableness and intent must be proven by the State beyond a reasonable doubt. TRIAL COURT ORDER THAT WAS BASED ON STATE S ONE-SIDED MOTION TO FREEZE CREDIT UNION ACCOUNT OF PERSON CHARGED WITH THEFT IS HELD INVALID UNDER FEDERAL CONSTITUTION S FOURTH AMENDMENT AND WASHINGTON S CRIMINAL COURT RULES, BECAUSE SUCH AN ORDER IS NOT A SEARCH WARRANT NOR THE FUNCTIONAL EQUIVALENT OF A WARRANT State v. Meza, Wn. App., 2015 WL (Div. II, Dec. 15, 2015) Facts and Proceedings below: (Excerpted from Court of Appeals opinion) In June 2014, John Armstrong spoke with the Lewis County sheriff's office and alleged that Meza had swindled money from him. Armstrong claimed that he paid Meza $75,000 to purchase Meza s asphalt plant, but then discovered that Meza already had sold the asphalt plant to someone named Cliff Mansfield. [A sheriff s deputy] investigated Armstrong s allegations. [The deputy] contacted the Twin Star Credit Union and verified that Meza held an account that had received large wire transfers recently. [The deputy] also learned from Mansfield that Meza recently had informed him that he was planning to go to Mexico. [The deputy] served Twin Star Credit Union with a valid search warrant for Meza s account information. Meza s bank statements showed a check and four wire transfers from Mansfield totaling $105,000, with the last transfer on June 18. They also showed a single wire transfer from Armstrong in the amount of $15,000 on April 11. Meza s checking account showed that between October 2013 and June 2014, he withdrew approximately $89,000 in cash in 41 transactions involving between $3,000 and $5,000 each. On June 27, 2014, the State charged Meza with one count of first degree theft. On the same day, the State presented an ex parte Motion for an Order Freezing and Holding Funds to the trial court [LEGAL UPDATE EDITORIAL NOTE: Roughly stated, an ex parte order is a lawful court order that is issued without the court necessarily having heard or considered the position of all parties]. The State asserted that the funds in Meza s credit union accounts were evidence in a felony offense. The State s motion was based on the probable cause affidavit filed with the information and asserted that there was a high likelihood, based on [the affidavit regarding probable cause], that [Meza] will remove said funds and leave the country. The State did not request a search warrant for the credit union funds or reference CrR 2.3 [Superior Court Criminal Rule 2.3] in its motion. The trial court signed an order directing Twin Star Credit Union to freeze and hold all accounts in the name of... Meza... as evidence in a criminal Legal Update - 13 January 2016

14 proceeding, until further order of this Court. Neither the motion nor the order cited any legal authority for freezing Meza s accounts. In January 2015, Meza filed a motion to vacate the trial court s order. Meza argued that there was no legal authority for the order. The State contended that the trial court could seize the fruits of a crime under CrR 2.3. The trial court denied Meza s motion to vacate the order, ruling that there was probable cause to believe that Meza s account was related to the charged crime. The court concluded that it had the authority to freeze Meza s funds under CrR 2.3. In addition, the trial court ruled that Meza s account qualified as both evidence of a crime and the proceeds of a crime. ISSUE AND RULING: Was the trial court s order a search warrant or the functional equivalent of a search warrant, thus satisfying the State and federal constitutional requirements that only a search warrant will justify the government s seizure of a person s funds from a financial institution? (ANSWER: No, the order was neither a search warrant nor the functional equivalent of a search warrant) Result: Reversal of Lewis County Superior Court order freezing the funds in Rafael Gutierrez Meza s credit union account. ANALYSIS: The Court of Appeals begins its analysis by explaining the Court s view that funds in a bank or credit union account cannot be lawfully seized without a valid search warrant. The Court then addresses, as follows, the issue of whether the trial court s order in this satisfied the search warrant requirement: The Fourth Amendment sets forth the constitutional requirements of a warrant: [N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. amend. IV. CrR 2.3 outlines the requirements of a valid search warrant in Washington. CrR 2.3(b) provides that [a] warrant may be issued under this rule to search for and seize any (1) evidence of a crime; or (2) contraband, the fruits of crime, or things otherwise criminally possessed; or (3) weapons or other things by means of which a crime has been committed...; or (4) person for whose arrest there is probable cause, or who is unlawfully restrained. Under CrR 2.3(c), there must be probable cause to issue a warrant, the warrant must identify the property and describe the place to be searched, and the warrant must be directed to and executed by a peace officer. Nature of the Trial Court s Order The State concedes that it did not expressly request a warrant under CrR 2.3 and that the trial court did not issue the order freezing Meza s account under CrR 2.3. However, the State argues that the trial court s order is a warrant or the functional equivalent of a warrant because it met the requirements of CrR 2.3, Legal Update - 14 January 2016

15 citing State v. Garcia-Salgado, 170 Wn.2d 176 (2010) April 11 LED:10. We disagree. 1. Garcia-Salgado In Garcia-Salgado, the trial court ordered the defendant to provide a cheek swab for DNA as authorized by CrR 4.7(b)(2)(vi). The Supreme Court acknowledged that swabbing a cheek to obtain a DNA sample is a search and that such a search must be supported by a warrant unless the search fell into one of the exceptions to the warrant requirement. The court recited the constitutional requirements of a warrant set forth in the Fourth Amendment: (1) a neutral and detached magistrate (2) makes a determination of probable cause based on oath or affirmation and (3) the warrant particularly describes the place to be searched and the items to be seized. The court then addressed the warrant requirement: Normally, a warrant in Washington State is issued under CrR 2.3, but neither the state constitution nor federal constitution limits warrants to only those issued under CrR 2.3. A court order may function as a warrant as long as it meets constitutional requirements. Therefore, the court concluded that the warrant requirement of the Fourth Amendment and article I, section 7 may be satisfied by a court order. The court held that a search pursuant to an order issued under CrR 4.7(b)(2)(vi) is valid if the order meets the constitutional requirements of a search warrant. The order must be entered by a neutral and detached magistrate; must describe the place to be searched and items to be seized; [and] must be supported by probable cause based on oath or affirmation. The court did not address whether a court order also must meet the requirements of CrR 2.3 to function as a warrant. 2. Trial Court s Order as a Warrant The State argues that under Garcia-Salgado, the trial court s order actually is a search warrant. However, it is undisputed that the trial court did not issue its order under CrR 4.7(b)(2)(vi). And Garcia-Salgado does not support this argument. The court held that a court order may function as a warrant and may satisfy the warrant requirements, but did not state that a court order is a warrant. Therefore, we hold that the trial court's order was not a search warrant. 3. Functional Equivalent of a Warrant The State also argues that under Garcia-Salgado, the trial court s order is the functional equivalent of a search warrant. A broad reading of Garcia-Salgado provides some support for the State s position. The court in Garcia-Salgado expressly stated that a court order can satisfy the warrant requirement for a search and seizure if it meets the constitutional requirements of a search warrant. However, the court in Garcia-Salgado did not hold that any trial court order that satisfies the warrant requirements could function as a warrant. The court allowed Legal Update - 15 January 2016

16 a trial court order to function as a warrant because the trial court had authority independent of CrR 2.3 to issue the order. In Garcia-Salgado, the trial court s order was issued under CrR 4.7(b)(2)(vi), which expressly authorized the search. The court held that a trial court order authorizing a search under CrR 4.7(b)(2)(vi) could function as a court order. We hold that the Garcia-Salgado holding is limited to cases where the trial court s order is authorized by law. Allowing a court order to function as a warrant when there is no independent authority for a seizure would render CrR 2.3 meaningless. Limiting the scope of Garcia-Salgado preserves the integrity of CrR 2.3. Here, the State cites no statute, court rule, or other authority allowing the seizure of a defendant's bank account in these circumstances. Therefore, the seizure was not authorized by law. We hold that Garcia-Salgado is inapplicable and that the trial court s order cannot be treated as the functional equivalent of a warrant..... We reverse and vacate the trial court s order directing the Twin Star Credit Union to freeze and hold Meza's account. [Footnotes omitted; some citations omitted and some citations revised] *********************************** BRIEF NOTES FROM THE WASHINGTON STATE COURT OF APPEALS (1) PRIVACY ACT: RECORDING IN CASE INVOLVING INADVERTENT POCKET CALL TO VOIC POSES INTERESTING ISSUES REGARDING PRIVACY ACT (CHAPTER 9.73 RCW), BUT APPEALS COURT AVOIDS ISSUES, INSTEAD CONCLUDING SIMPLY THAT ANY ERROR BY THE TRIAL COURT IN ADMITTING THE VOIC RECORDING WAS HARMLESS In State v. Sinclair, Wn. App., 2016 WL (Div. I, Jan. 27, 2016), the Court of Appeals exercises its discretion to not address interesting and novel issues regarding the application of chapter 9.73 RCW (Washington s Privacy Act, which generally requires all-party consent to recording of private conversations) to a fact situation that the Court describes as follows: The recording at issue occurred one afternoon when [defendant Sinclair s] granddaughter was home alone and Sinclair was visiting her. The granddaughter testified that Sinclair kissed her tongue to tongue and then she and Sinclair went outside and continued a conversation. During the conversation, Sinclair unintentionally dialed the girl s mother with his cell phone. The mother did not answer. Her cell phone transferred the call to voice mail. The voice mail system recorded Sinclair saying, I love that tongue.... I don't know if you love mine. The conversation continued with Sinclair making veiled threats that his dead ancestors would inflict physical injury on the girl for not being nice. The mother later listened to the voic recording on her phone and heard the conversation. This led to the filing of the criminal charges against Sinclair. Legal Update - 16 January 2016

17 The trial court admitted the voic recording into evidence. The Court of Appeals notes that the other evidence in the case, which includes, but is not limited to (1) the victim s testimony and (2) photographs and a video seized from the defendant s phone and computer sufficiently supports his sex crime convictions without need to consider the voic recording. Therefore, the convictions must stand even if the Court were to assume for the sake of argument the validity of the defendant s arguments under chapter 9.73 for exclusion of the voic recording of the pocket call, Result: Affirmance of King County Superior Court convictions of Alan James Sinclair, II, for two counts of second degree rape of a child, two counts of third degree child molestation, and one count of the gross misdemeanor of communicating with a minor for immoral purposes. LEGAL UPDATE EDITORIAL NOTE REGARDING JANUARY 2016 LED ENTRY ON THIS DECISION: The Sinclair decision is addressed in the AGO/CJTC s January 2016 Law Enforcement Digest at pages 3-4. LEGAL UPDATE EDITORIAL NOTE REGARDING THE BRIEFING ON THE PRIVACY ACT ISSUES: The briefs of the parties in the Court of Appeals on the issues under chapter 9.73 address the following questions, among others, that the appellate court chooses not to address. Was the conversation private for purposes of chapter 9.73? Did an "individual" record it? Does an individual incur criminal liability for an inadvertent recording, or must someone be acting with a criminal intent or at least knowledge to trigger the prohibitions of the Privacy Act? (2) PRIVACY ACT: COUNTY DISTRICT COURT JUDGE HAS AUTHORITY AND JURISDICTION UNDER CHAPTER 9.73 RCW AND OTHER RCW PROVISIONS TO ISSUE ORDER FOR INTERCEPTION AND RECORDING OF PHONE CALL IN INVESTIGATION OF FELONY In State v. Bliss, Wn. App., 2015 WL (Div. II, Dec. 22, 2015), Court of Appeals sets aside a superior court order that suppressed a telephonically recorded conversation in a child-sex-crime case. A minor girl (C) reported to the Skamania County Sheriff s Office that David Bliss had molested her when she had been between the ages of seven and eleven. C consented to being recorded in a phone call to Bliss. A Skamania County District Court judge granted authorization under RCW (2) to record such a call. C made the call from a Skamania County location to Bliss, who was located in Clark County at the time of the call. Bliss admitted during the call to having committed sex crimes against C. The State charged Bliss with four counts of first degree rape and one count of child molesting. Bliss moved in Skamania County Superior Court for an order suppressing the recording. He argued that under RCW (2) only a Superior Court judge may issue an order authorizing a recording. The Superior Court granted his motion. Chapter 9.73 RCW, Washington s Privacy Act, is very restrictive on the interception and recording of conversations. Washington is one of 11 states where the general rule is that all parties to conversations must consent to being recorded. But Washington s Privacy Act contains several exceptions to the general all-party consent rule. One exception is the felony investigation, court-authorized exception set forth in part in RCW (2). RCW (2) provides: Legal Update - 17 January 2016