But in non-routine DUI cases–where, for example, we’ve got a DUI with serious bodily injury or death–Washington law allows a “blood test may be administered without the consent of the individual” for the arrestee. RCW 46.20.308(3).

Now, that “without consent” provision was upheld by the Washington State Supreme Court some time ago both under its interpretation of the Fourth Amendment and Article I, section 7 of the Washington State Constitution. State v. Curan, 116 Wn.2d 174, 184 (1991). However, at least where the Fourth Amendment is concerned, the decision was relying upon Schmerber v. California, 384 U.S. 757 (1966) for the proposition that the search is just dandy so long as “there was a clear indication that [the blood test] would reveal evidence of [the defendant's] intoxication, and it was a reasonable test performed in a reasonable manner.” Id. And McNeely now rejects that reading of Schmerber, instead clarifying we’re looking for exigency on a totality of the circumstances basis.

Seeing how there is no “the State statute allows the search” exception to the Fourth Amendment, I suspect we’re going to see some litigation based upon McNeely that RCW 46.20.308(3) is unconstitutional. That is, if you’re going to take blood without consent, you’ll need a warrant or exigent circumstances, and the fact that someone died or was seriously injured is only one factor to be considered when it comes to whether such an exigency is present. No more per se vehicular homicide/assault exception.

We might also see litigation regarding the constitutionality of the implied consent scheme in the context of a person who is “unconscious, or who is otherwise in a condition rendering him or her incapable of refusal” under RCW 46.20.308(4).

Because the whole implied consent statute seems to be premised on a mistaken interpretation of Schmerber that the Fourth Amendment is not offended by blood tests for alcohol from a person arrested on probable cause (where alcohol is at issue, and where the manner of testing is reasonable). Now that we know that just ain’t so, that you need a “how impractical is getting a warrant” overlay, I think the door has been opened for some interesting issues.

However yesterday, the U.S. Supreme Court handed down Florida v. Jardines, which shut down those expectations. Jardines clarified that although a law enforcement officer may have implied license to approach a residence, knock on the door with the hope of asking incriminating questions, and remain for a short time while awaiting a response to the knock; and although the same officer may use his own nose to sniff out contraband while so waiting; that same law enforcement officer does not have implied license from the resident to bring a drug dog along for the ride.

To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to—well, call the police. The scope of a license—express or implied—is limited not only to a particular area but also to a specific purpose.

Jardines, 569 U.S. ___ at *7 (2013). But here’s where the opinion gets a little hinky. Because the Jardines majority reaffirms the “objectively reasonable” standard from Whren v. United States, 517 U.S. 806 (1996). That is, the officer’s subjective rationale for conducting a search or seizure is irrelevant, so long as an objectively reasonable rationale exists for the search or seizure. [Example: if a law enforcement officer stops a car because the driver is young, black, and his hat is real low (and therefore must be up to trouble...or Jay-Z), but also happens to note the car had a broken tail light, the seizure is valid.]

So consider the following hypothetical: Officer, who happens to be assigned to the K-9 unit, goes up to a house to conduct a routine knock-and-talk. Walks up the path, gets on the front porch, knocks on the door. And happens to bring his dog with him because, well, it’s a hot day, and he doesn’t want to leave the dog in the car. After knocking on the door, he waits around for a minute or two to see if anyone answers. In the meantime, the dog alerts to the presence of marijuana, identifying the source of the odor as the crack under the front door. After receiving no response to the knock, he leaves. Gets a search warrant on the basis of the dog’s alert behavior. Searches the house pursuant to the warrant. Finds a marijuana grow operation.

This is almost identical to the facts in Jardines. Only difference is the Officer there didn’t knock, and brought the dog for the purpose of sniffing, not just because.

If the way around Jardines is that easy, we’ll see a lot of silly and unnecessary formality entering police procedures (e.g. make sure you knock when you get to a front door), and we’ll see a lot of the creative report writing and after-the-fact rationalization (read: lying) that the Whren court was trying to avoid in rejecting the subjective rationale standard. If it isn’t, Jardines does nothing to keep deciding Fourth Amendment issues easy.

Not that I think the result was wrong, or that the concurrence announces an easier-to-apply rule. But I’m concerned whenever the waters get muddied by the Supreme Court. Makes for a more interesting issues for me, I suppose, and so from a purely selfish standpoint, I’m giddy. But for the smooth running of the criminal justice system, and for the purposes of giving law enforcement officers clear and workable rules about what to do, and what not to do, Jardines will be a problem going forward.

Some background: Jones concerned the admissibility of a truck load of GPS data (in a coke dealing conspiracy case) gathered by, well, planting a GPS unit on Mr. Jones’s truck. Mr. Jones challenged the GPS data, arguing its collection constituted a search that exceeded the scope of the warrant, and that therefore it should be suppressed as unconstitutional. The Fourth Amendment reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no 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.

Generally, if law enforcement wants to search a person, his house, his papers, or his effects, they’re going to need a warrant (i.e. written permission from a judge). Law enforcement gets a warrant by “describing the [person, house, papers, or effects] to be searched” and describing why the search is necessary (the “probable cause” statement”), with the basis “supported by Oath or affirmation.”

Search cases typically turn on (1) whether the law enforcement action constituted a search; (2) whether the law enforcement action was authorized by a warrant; and (3) whether some exception to the generally applicable warrant requirement applies.

Jones is a type-1 case, in that the government was arguing collecting GPS information in the manner presented here is not a search (at least when Mr. Jones’s vehicle was on public roadways). Why?

Some more background: the old test to see whether something constituted a “search” looked to basic property law. If law enforcement was engaging in common law trespass (and looking for something), it was a search. If not, not. So, to give a simple example, because a regular person coming into your house without your permission is trespassing, a police officer comes into your house without your permission to look for something is searching within the meaning of the Fourth Amendment. And because a regular person standing on the sidewalk, looking through open front window is not trespassing, a police officer doing the same is not searching. Right?

A problem arose in the 60s when technology butted up against the old property laws. If a person at the phone company wants to start listening in on your conversations (without entering your house), is he trespassing? Not really. [There may be other laws that prevent this, but common law property rights don't really apply.] So does that mean wiretaps can never violate the Fourth Amendment?

The Supreme Court decided in Katz v. U.S. in 1967 that the wiretap issue turned on the individual’s “reasonable expectation of privacy.” Because a person has a reasonable expectation of privacy in his private telephone conversations, the police cannot listen in without a warrant.

What happened then is that the “reasonable expectation of privacy” analysis was extended to all sorts of other arenas. For example, because a person doesn’t have a reasonable expectation of privacy in his movements on a public roadway, a police officer tailing that person isn’t conducting a search. See United States v. Knotts. Indeed, a police officer tailing the person even with electronic assistance (in Knotts, it was a short-range radio transmitter, or beeper, that made its way into the vehicle by having the chemical salesperson put it into the drum of chloroform) isn’t necessarily a “search.”

What made Jones different? According to the Justice Scalia-written majority opinion, the police’s act of placing the GPS unit on the vehicle constituted a common law trespass. And so the old pre-Katz analysis still applies, and questions about reasonable expectations of privacy simply do not come up. Simple enough rule to apply, at least, although I question the way in which Knotts was distinguished.

More interesting, though, are the rationales of the two concurrences. Justice Sotomayor also found the reasonable expectation of privacy analysis inapplicable, favoring the trespass analysis. But both Sotomayor and Justice Alito (writing for four justices) pondered big questions about how cheap surveillance-by-technology interplays with the Fourth Amendment moving forward. Sotomayor notes “[a]wareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS-monitoring–by making available at a relatively low cost such a substantial quantum of intimate information about a person whom the Government, in its unfettered discretion, chooses to track–may alter the relationship between citizen and government in a way that is inimical to democratic society.” Jones, 565 U.S. ____ at *3-4 (2012) (Sotomayor, J., concurring). Both Sotomayor and Alito argue a person may have a reasonable expectation of privacy regarding his movement on public streets if the recording of the movement becomes long, frequent or detailed enough.

[Aside: I always know I'm in for a good Fourth Amendment case when Scalia uses the term "constable," and when other justices make light of the use; see e.g. Alito: "Is it possible to imagine a case in which a constable secreted himself somewhere in a coach and remained there for a period of time in order to monitor the movements of the coach's owner? The Court suggests that something like this might have occurred in 1791, but this would have required either a gigantic coach, or a very tiny constable, or both--not to mention a constable with incredible fortitude and patience." I'm thinking about marketing a brand of police surveillance equipment called "Very Tiny Constables."]

Which poses several interesting questions, many of which were developed within the opinion. Most pressing: how long must location surveillance go on before it crosses the privacy expectation threshold? Does it vary, depending upon device? For example, is two days worth of GPS monitoring equivalent of four days of cell tower monitoring? If the police only check the GPS monitoring once a day, as opposed to every few minutes, does that extend the amount of time the monitoring is not a Fourth Amendment search?

More importantly, what other established legal principles would be disrupted by the concurrences’ proposed rules? For example, it is well established that a law enforcement officer may peer from the street through an open window without that peering constituting a search. Do the Jones concurrences collectively suggest that if the police peer for long enough, the Fourth Amendment may be implicated? Does it matter whether technological assists–e.g. video cameras–are involved?

If the Jones majority were adopted by a solid five (or more) justices, these questions may make less practical difference. But Alito was joined by Justices Ginsburg, Breyer, and Kagan. So with Alito and Sotomayor both concluding the Fourth Amendment may place a limit on monitoring if it goes on long enough–i.e. a person may have some expectation of privacy in decidedly public activities that becomes reasonable in the aggregate–we have five justices that have opened the door to all sorts of interesting suppression motions. I look forward to writing a few.

Some issues that come to mind:

The right to privacy at issue deals primarily with “private communication.” Which is, unfortunately, an undefined term. Do the individuals recorded by police dash cameras have a reasonable expectation of privacy in their conversations with the arresting officers? If not, how does RCW 9.73.090(1)(c)’s prohibition on duplication have any bearing on PRA disclosure whatsoever? If so, how is it that I’ve seen and heard so many recordings from more notorious cases with ongoing litigation–see e.g. the shooting of John T. Williams by SPD Officer Ian Burke?

The statute refers to “criminal or civil litigation which arises from the event or events which were recorded.” Does “which arises” mean “which has arisen” or “which may arise”? If the former, what courts is the law enforcement agency entitled to check to see whether the recording has any bearing on ongoing litigation? If the latter, how long must the law enforcement agency wait? The complaint suggests three years, because that’s Washington’s catch-all statute of limitations. But that ignores other limitations periods, various equitable tolling principles, and the complete lack of a time bar when it comes to Class A felonies. Does the City seriously believe criminal penalties may arise for a municipal employee who hands over a video five years after the fact, simply because it happens to contain information relevant to a written contract?

The Public Records Act’s conflict of law provision seems to resolve conflicts in favor of disclosure of public records, and against, well, privacy. Does this make an interpretation of RCW 9.73.090(1)(c) that avoid disclosing all dashcam videos less plausible?

What are your thoughts?

First, and most basically, you want to find out if the lawyer you’re talking to is actually licensed to practice in the jurisdiction in which you’re charged. So if you’re charged in Thurston County Superior Court, you want to make sure he is licensed to practice in the State of Washington. In Washington, that means membership in the Washington State Bar Association, which maintains a handy lawyer directory. Or let’s say you’re charged in the U.S. District Court for the Western District of Washington. Then you’ll want to see if the lawyer you’re talking to is admitted to practice in that court. Again, there is a directory. Don’t know where to look? Ask the court clerks where you might find a similar directory applicable to your situation.

Why do I emphasis this? Because I’ve seen enough horror stories about people bilked out of thousands of dollars by some con artist who cannot even address the court on behalf of his client without special permission of the court. At best it needlessly complicates your life and runs up your bill. At worst, you’ll get inferior representation that places you at a distinct disadvantage, negating any benefits you might have gained from hiring a lawyer in the first place.

Second, I’d also make sure the lawyer you’re considering retaining actually has some relevant experience. How do you find this out? You can start by asking him. “How long have you been practicing criminal law?” is one question. A better question, though, might be “how many criminal trials have you submitted to a jury?” Or “can I read a copy of the last suppression motion you filed?” Or “how many times have you represented a person with the same charge?” Or “have you ever worked for an indigent defense agency?” No one question should be dispositive–after all, the best person to represent you may never have represented someone charged with the same crime, because that crime may be so rarely charged–but if you’re getting answers like “I’ve never done a jury trial,” or worse, you’re not getting a response at all, that’s a red flag.

In addition to asking, you might find out how the lawyer you’re considering hiring presents himself online. If you look on his website, on his Bar Association profile, at his telephone directory listing, in his Avvo profile, and in his press clippings, and nothing mentions criminal law, that’s a red flag. Many attorneys have a diverse practice, and it may even be a good idea to hire someone who’s practice is not limited to criminal defense. But if that lawyer doesn’t present as having a mentionable criminal component to their practice, he may not be able to effectively represent you in a criminal matter.

Third, you want to make sure the lawyer you hire has some redundancy built into his practice. A solo practitioner criminal defense attorney may be fine, but only if he has enough arrangements with other local attorneys to effectively cover his cases when he’s ill or on vacation or in another court. More comforting is to see multiple attorneys in the office with criminal defense experience, as well as office support staff. There are few things more frustrating than showing up for court and finding your lawyer is AWOL, or calling and not getting a return call. How do you find out if the lawyer has enough redundancy? Asking is a good start. You might also just pay attention to your surroundings when you meet him for the first time. If you meet him at his office, does it look like he’s all by himself? If you meet him at the courthouse, does he seem to know many other defense attorneys?

Of course, there are many other factors that go into choosing an attorney. If you can find out about reputation–e.g. because the lawyer comes recommended by someone you trust–or success rate or cost competitiveness, those can be helpful metrics. Use your best judgment about what’s important to you. But don’t neglect the basics: make sure the lawyer is licensed to practice in the right court, make sure he’s got the right sort of experience, and make sure he’s not stretched too thin.

Take the example of City of Montesano v. Wells, 79 Wn. App. 529 (1995). Montesano Police Officer Steve Needham encountered an individual who was riding a bicycle. Bicycle rider shows signs of having consumed alcohol. Blows .13. Officer him for “driving under the influence.” Prosecutor reads over the DUI statute and discovers Officer Needham read the statute just fine. Turns out, the legislature criminalized “driv[ing] a vehicle within this state” while under the influence of intoxicating liquor. And “vehicle” is defined to specifically include bicycles. And “drive” is not defined at all. So apparently the legislature meant to criminalize peddling home from the bar. Right? The prosecutor apparently thought so. And the Montesano Municipal Court judge apparently thought so as well. As did a Grays Harbor Superior Court judge.

Most people would be aghast at this absurd result, including most legislators. But the legislature hasn’t actually fixed this absurdity, even after it was pointed out. Thankfully, though, a panel of three judges on the Court of Appeals, Division 2–Fleisher, Houghton, and Bridgewater–did fix the absurdity by finding the legislature must have meant “motor vehicle” where it actually wrote “vehicle.”

Another example–one that hasn’t become the subject of any sort of judicial interpretation yet, as far as I can tell–came to mind in light of some of the involuntary tow horror stories that have been appearing in the Seattle Times of late. The legislature has created a felony called “Taking a Motor Vehicle without Permission in the Second Degree.” The elements of the crime in the more common form include (1) intentionally taking any automobile or motor vehicle; (2) when the motor vehicle belongs to another person; and (3) without the permission from the owner or person entitled to possession.

So let’s say I’m a tow truck operator, with all my regulatory ducks in a row. And I get a call from a private parking lot operator. Who tells me that someone has parked a car in the lot without paying. And he’d like that car towed. Situation comes up all the time, right? And the private parking lot owner should be able to get that car towed, right? Thing is, I’m at risk for getting charged with a felony if I tow that vehicle. Because I certainly am intentionally taking the car if I tow. And the car doesn’t belong to me. And I don’t have the owner’s permission. And although I do have the parking lot operator’s permission, he isn’t a “person entitled to possession” (as he may be if, e.g., the vehicle owner had signed a contract with the parking lot operator). So if an enterprising prosecutor–just like the fellow in Montesano Municipal Court in the real life example above–decides to look into the matter after getting a call from the irate car owner, I may be screwed. There is no “licensed tow truck operator” defense.

Certainly we cannot rely upon the legislature to avoid absurdities in drafting statutes. And we cannot rely upon people empowered to make charging decisions, like police officers and prosecuting attorneys. Nor can we necessarily rely upon trial court judges. Or appellate court judges, truth be told. Or the executive with pardoning power, like the governor. No system is going to guarantee a non-absurd result every time. The best we’ve come up with is getting some level of redundancy in the field of avoiding absurd results. We can only hope there are enough people involved in drafting, revising, reading, interpreting, and implementing laws that do have some common sense that we can at least keep the absurdity to a minimum.

The first thing that jumps out is the first word: “statute.” A statute is a law, and more specifically, one that becomes law by legislative act. When Congress says something is law, that’s a statute. As opposed to case law, which is made by judges; common law, which is also made by judges (although they like to pretend it arises naturally from the ether); administrative or regulatory law, which usually comes from government agencies, either through a rulemaking process or by quasi-judges that go by a variety of names, like hearing examiners or commissioners; constitutional law, which often comes from legislatures as well, but often also has a popular vote component or the involvement of other legislatures; or initiative law, which comes from private special interest groups the voters. In Washington, the statute(s) of limitations are generally found in Chapter 4.16 of the Revised Code of Washington.

The “limitations” part of today’s phrase has to do with limitations involving time. Specifically, nearly every court action has a time limit. And if a person doesn’t take that action within the time limit, he’s forever prevented from taking that action.

So, for example, let’s assume you’re beaten up by a police officer. You’re a pedestrian. Cop stops to ask for your identification. You decline to answer his questions, asserting your Fifth Amendment right to remain silent. He gets angry and pushes you into a wall, hits you with his baton, kicks you in the ribs after you’ve fallen to the ground, then leaves you bleeding in an alley. Let’s say you’re scared of a repeat performance, and so wait for a while before you build up the courage to do anything about it. And then when you raise the issue with the police department, the internal investigation report comes back that the officer did nothing wrong and your complaint was not credible. And let’s say you wait a while longer before you finally give me a call so we can discuss your options. Let’s say it’s been over two years since the incident. I’m afraid I’d have to tell you that, even if I thought you had a great battery case, because you waited so long, you’re not going to get any love from the courts. Because battery has a two year limitations period.

[Note: this is a simplified hypothetical that hopefully is not representative of too many of my readers' experiences. Note further: there may be other causes of action that are not barred, and there may be time calculation issues involved (i.e. your count that more than two years have passed may be different from the law's count). So if something like this did happen to you, do give me a call at (360) 352-8004, even if a lot of time has passed. Free initial consultation.]

And the statute of limitations is considered “jurisdictional.” In other words, if an action is time barred by a statute of limitations, the court doesn’t have the jurisdiction, or authority, to hear the case. Doesn’t matter how righteous your case, how hideous the injustice, if the statute says stop, the court must stop.

General lesson: don’t wait when it comes to pursuing your claims. If you were wronged, and the law offers you some sort of remedy, take advantage of it sooner rather than later. Because if you wait, you may lose the right to go to court at all.

First thing you want to do is show up. If the judge tells you that you have to be somewhere on a particular date and time, show up. Why? If you do not show up, the court will usually issue a warrant for your arrest. Which means any law enforcement officer can put you in handcuffs, bring you to the jail, and keep you there until the next day when a judge is available to see you. Huge hassle. Moreover, the judge will also be more inclined to place on you more restrictive conditions of release. He may, for example, make you post bail before you’re released from jail, impose travel restrictions, or have you report daily to a probation officer. Furthermore, you may be charged with an additional crime simply for missing court. Long and short? It pays to keep an organized calendar.

Second thing to do is obtain an attorney. Hire one, or ask for an appointed attorney. Why? An attorney is helpful because (1) he knows how the court works, procedurally; (2) he can speak on your behalf without making your case worse; and (3) he knows the law and is familiar with similar cases, and so can give you valuable advice. For example, if you have a job interview that conflicts with a court date, chances are your attorney will be more successful than you alone at getting the court date moved. Or, let’s say you want to provide the prosecutor with information that is at once an admission of guilt and a mitigating explanation; if you do it yourself, you’ve just confessed, which makes your case’s outlook less good; if your attorney does it for you, you may gain a better bargaining position. Or, let’s say the judge tells you the crime you’re charged with is punishable by up to five years in prison. You don’t believe you’ve done what you’re accused of doing, but you’re nervous about serving prison time. If the prosecutor comes to you and tells you he’ll recommend three months jail if you plead guilty, you may consider taking that offer. The same offer to a criminal defense attorney may sound very different, because he knows your standard range under the Sentencing Reform Act is one to three months, so he can tell you that the prosecutor’s “offer” is realistically the worst case scenario at trial, so you might as well roll the dice and see what a jury has to say.

Third thing to do is enter a not guilty plea. Why? “Not guilty” doesn’t mean “I didn’t do it.” “Not guilty” means “I am not yet convinced there is a substantial risk the prosecutor will be able to prove I committed this crime.” Until you’ve seen what the prosecutor’s evidence is, “not guilty” is the only sensible plea. Until you’ve determine whether and for what purpose that evidence is admissible, “not guilty” is the only sensible plea. And when you’re first asked by the judge what your plea is at the arraignment, you haven’t seen anything other than the charging document. You cannot possibly evaluate the evidence against you without having seen it, so you cannot possibly plead guilty at the arraignment. Now, your position may change. You may take a look at the evidence with your attorney and come to believe you’ll almost certainly be convicted at trial. And so you may want to change your plea. You may also come to believe that there’s a substantial risk of conviction, and want to negotiate to arrive at a compromise position. You can almost always change your plea later. [Note: there are a few exceptions to this general rule, because technically you only have the right to plead guilty at arraignment, and occasionally there are tactical reasons to do so. This is yet another reason why you want to obtain an attorney, even before this step. If you arrive at the arraignment without an attorney, and there is no appointed attorney presented for the purposes of that hearing, you may want to ask the court to postpone the arraignment so that you consult with an attorney prior to entering a plea.]

To review: show up, get attorney, and not guilty. Any questions?