LAW ENFORCEMENT DIGEST

SUBJECT MATTER INDEX:

SUBJECT MATTER INDEX FOR LED’S FROM 1994-1998

Introductory Note: The following Law Enforcement Digest Subject Matter Index covers five years of LED’s from January 1994 through December 1998. This cumulative index was constructed primarily by merging annual indexes which appeared in the December LED’s for 1994-1998. Under each topical heading, the cases are listed generally in ascending chronological order. This index and a five-year index covering LED’s from 1989-1993 are accessible on the Criminal Justice Training Commission's Internet Home Page at [ http://www.wa.gov/cjt ]. Also available on the CJTC’s Home Page are monthly LED’s from January 1992 to present.

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The LED is edited by Assistant Attorney General, John Wasberg, Office of the Attorney General. Phone 206 464-6039; Fax 206 587-4290; Address 900 4th Avenue, Suite 2000, Seattle, WA 98164-1012; E Mail [johnw1@atg.wa.gov]. Editorial comment and analysis of statutes and court decisions express the thinking of the writer and do not necessarily reflect the opinion of the Office of the Attorney General or the Washington State Criminal Justice Training Commission. The LED is published as a research source only and does not purport to furnish legal advice.



- SUBJECT MATTER INDEX TABLE OF CONTENTS -
CLICK ON THESE LINES TO GO TO THE CITATION(S)


ACCOMPLICE LIABILITY (Chapter 9A.08 RCW)
1
ALZHEIMER’S
1
ANIMAL CONTROL
1
APPEAL RIGHTS WAIVER
1
ARREST, STOP AND FRISK
1
ASSAULT AND RELATED OFFENSES (Chapter 9A.36 RCW)
4
ASSISTING SUICIDE ATTEMPT (RCW 9A.36.060)
5
ATTEMPT (RCW 9A.28.020)
6
ATTORNEYS AND UNLAWFUL PRACTICE OF LAW
6
BAIL BONDS
6
BOMB THREATS
6
BURGLARY (Chapter 9A.52 RCW)
6
CHAIN-OF-CUSTODY
6
CIVIL LIABILITY (Including "reverse" lawsuits by officers)
6
CIVIL SERVICE AND EMPLOYMENT LAW
8
COLLATERAL ESTOPPEL/RES JUDICATA
8
COMMERCE CLAUSE
8
COMPROMISE OF MISDEMEANORS (Chapter 10.22 RCW)
8
COMPUTER BULLETIN BOARD
8
CONSPIRACY (RCW 9A.28.040)
9
CORPUS DELICTI RULE
9
CRIME VICTIMS’ COMPENSATION
10
CRIMINAL MISTREATMENT (Chapter 9A.42 RCW)
10
CRIMINAL PROSECUTION OF OFFICERS FOR ILLEGAL SEARCHES (RCW 10.79.040-045)
10
CURFEW LAWS
10
DEADLY FORCE
10
DEFAMATION
10
DEFERRED PROSECUTION
10
DISCOVERY
10
Domestic Violence
11
DOUBLE JEOPARDY; EXCESSIVE FINES
11
DUE PROCESS
12
DURESS DEFENSE (RCW 9A.16.060)
13
ELECTRONIC SURVEILLANCE AND MONITORING (Chapter 9.73 RCW)
13
ENTRAPMENT (RCW 9A.16.070)
14
EQUAL PROTECTION
15
EROTIC MUSIC LAW
15
ESCAPE (RCW 9A.76.110-130) AND RELATED CRIMES
15
EVIDENCE LAW
15
EX POST FACTO DOCTRINE
18
EXCLUSIONARY RULE (See "Exclusionary rule" sub topic under "Search and Seizure" below, this index)  18
FALSE IMPERSONATION
18
FALSE REPORTS, MISLEADING REPORTS ORDINANCE
18
FIREARMS LAWS (Chapter 9.41 RCW) AND OTHER WEAPONS LAWS
18
FORFEITURE LAW (See also "Double Jeopardy"; "Due Process"; "Excessive Fines" and "Uniform Controlled Substance Act") 18
FORGERY (Chapter RCW 9A.60.020)
20
FREEDOM OF RELIGION/ESTABLISHMENT OF RELIGION
20
FREEDOM OF SPEECH
20
HARASSMENT (Civil) (Chapter 10.14 RCW)
21
HARASSMENT (Criminal) (Chapter 9A.46 RCW)
21
IMPLIED CONSENT, BREATH, AND BLOOD TESTS FOR ALCOHOL CONTENT
21
INDIANS AND LAW ENFORCEMENT
22
INFANCY DEFENSE (RCW 9A.04.050)
23
INSANITY DEFENSE (RCW 9A.12.010) AND RELATED DEFENSES
23
INTERNET
23
INTERROGATIONS AND CONFESSIONS (See also "Sixth Amendment and related State Law Provisions")
23
INTIMIDATING A JUDGE (RCW 9A.72.160)
25
INTIMIDATING A PUBLIC SERVANT (RCW 9A.76.180)
25
INTIMIDATING A WITNESS (RCW 9A.72.110)
25
INTOXICATION DEFENSE (RCW 9A.16.090)
25
JUVENILE JUSTICE (See also "Infancy Defense")
26
KIDNAPPING AND RELATED OFFENSES (Chapter 9A.40 RCW) (See also "Luring")
26
LEGISLATION
26
LIMITATIONS PERIODS (Including RCW 9A.04.080)
26
LINEUPS, PHOTO IDENTIFICATIONS AND SHOWUPS
27
LOSS OF, DESTRUCTION OF, OR FAILURE TO PRESERVE EVIDENCE
27
LURING (RCW 9A.40.090)
27
MALICIOUS HARASSMENT (RCW 9A.36.080)
27
MALICIOUS MISCHIEF (Chapter 9A.48 RCW)
27
MINOR IN POSSESSION (RCW 66.44.270)
27
MONEY LAUNDERING (Chapter 9A.83 RCW)
28
MURDER (Chapter 9A.32 RCW) AND OTHER CRIMINAL HOMICIDES
28
MUTUAL AID PEACE OFFICER POWERS ACT (Chapter 10.93 RCW)
28
NECESSITY DEFENSE
28
OBSTRUCTING (RCW 9A.76.020) AND RELATED CRIMES
28
PLEA BARGAINING
29
POLYGRAPH
29
PUBLIC RECORDS, ACCESS TO COURT RECORDS AND PROCEEDINGS
29
RAPE AND OTHER SEX OFFENSES (Primarily Chapter 9A.44 RCW) (See also "Sexual Exploitation of Children")
29
RENDERING CRIMINAL ASSISTANCE (Chapter 9A.76 RCW)
30
RESTITUTION
30
ROBBERY (Chapter 9A.56 RCW)
30
SEARCH AND SEIZURE
31
Abandoned property
31
Administrative Search Warrants
31
Anticipatory Search Warrants
31
Bank Records Search Under Warrant
31
Blood Samples -- Obtaining With or Without Search Warrant
31
Commissioners Issuing Search Warrants
31
Community Caretaking Function Exception
31
Computer Searches
31
Consent Search Exception
32
"Criminal Search" Statute (RCW 10.79.040 - 045)
32
Entry Of Private Premises To Arrest
32
Exclusionary Rule (See also "Standing under SEARCH AND SEIZURE sub topic)
32
Execution of Search Warrants
33
Exigent Circumstances (And Emergencies)
33
Forfeiture Related Seizure and Search
34
Identity Of Confidential Informant (Disclosing, Protecting)
34
Impound Inventory Exception (Vehicles)
34
Incident to Arrest (Motor Vehicle)
34
Incident To Arrest (Non vehicle Search)
35
Jail Inventory, Jail Property Box
35
Knock And Announce (RCW 10.31.040 and Constitutional Requirements)
35
National Guard Involvement In Search
35
Omissions From Warrant Affidavit
36
Particularity Requirement
36
Plain View Doctrine/Open View Doctrine (See also "Privacy Expectations" under SEARCH AND SEIZURE sub topic)
36
Privacy Expectations, Scope of Constitutional Protection
36
Private Citizen Search
38
Probable Cause (See also "Anticipatory Search Warrants")
38
Scope Of Search Authorization Under Warrant
39
Seizing Personal Property Based On Probable Cause While Search Warrant Sought
39
Standing
40
Strip Searches
40
Telephonic Warrants
40
Work Release Searches
40
SECURITIES FRAUD
40
SELF DEFENSE/DEFENSE OF OTHERS
40
SENTENCING (See also "Restitution")
40
SEPARATION OF POWERS
41
SEX OFFENDER REGISTRATION, RELEASE NOTIFICATION
41
SEX PREDATOR LAW
42
SEXUAL EXPLOITATION OF CHILDREN (Chapter 9.68A RCW)
42
SIXTH AMENDMENT AND RELATED STATE LAW PROVISIONS (See also "Interrogations and Confessions")
42
SPEEDY TRIAL/SPEEDY ARRAIGNMENT
42
STALKING (RCW 9A.46.110)
43
STANDING (See sub topic under "Search and Seizure" topic)
44
TAMPERING WITH A WITNESS (RCW 9A.72.120)
44
THEFT AND RELATED OFFENSES (Chapter 9A.56 RCW) (See also "Robbery")
44
TRAFFIC (Title 46 RCW) (See also "Implied Consent")
44
TRIAL – WAIVER OF RIGHT TO BE PRESENT
46
UNIFORM CONTROLLED SUBSTANCES ACT (Chapter 69.50 RCW), OTHER DRUG LAWS
46
VAGUENESS DOCTRINE
49
WILDLIFE PROTECTION
49
WITNESS INSTRUCTIONS BY POLICE, PROSECUTORS
49


SUBJECT MATTER INDEX



ACCOMPLICE LIABILITY (Chapter 9A.08 RCW)

"Mere presence" insufficient to support "joyriding" accomplice liability. State v. Luna, 71 Wn. App. 755 (Div. III, 1993) Feb. '95:15

Accomplice, as knowing aid in crime, has principal's mental state in "malicious harassment" as with other crimes. State v. Robertson, Lewis, and Jack, 88 Wn. App. 836 (Div. I, 1997) - March 98:17

Accomplice liability in child assault case cannot be based on omission or failure of foster parents to carry out civil duty to protect child. State v. Jackson, 87 Wn. App. 801 (Div. I, 1997) - March 98:20 [Review is pending in the State Supreme Court.]


ALZHEIMER’S Article: "Law Enforcement, Alzheimer's Disease and the Lost Elder" - May ‘96:18
ANIMAL CONTROL Dangerous dog law does not establish a strict liability standard. State v. Bash and State v. Delzer, 130 Wn.2d 594 (1996) - Jan ‘97:12
APPEAL RIGHTS WAIVER Defendant who fled state following his conviction waived his right to appeal. State v. Estrada, 78 Wn. App. 381 (Div. III, 1995) Dec. '95:18
ARREST, STOP AND FRISK PC to arrest for criminal trespass established for repeat trespasser. State v. Thompson, 69 Wn. App. 436 (Div. I, 1993) Jan. '94:08

Vehicle stop on a hunch to check for cedar permit unlawful. State v. Thorp, 71 Wn. App. 175 (Div. II, 1993) Jan. '94:11

Second frisk of person at scene of narcotics warrant execution held unreasonable. State v. Galbert, 70 Wn. App. 721 (Div. I, 1993) March '94:17

No custodial arrest merely for driving without valid operator's license. State v. Terrazos, 71 Wn. App. 873 (Div. III, 1993) May '94:08

Court's analysis appears to be faulty in re: issue of police power in seat belt violation situation to ask unidentified passenger to step from car. State v. Cole, 73 Wn. App. 844 (Div. III, 1994) Sept. '94:10

Seriousness of suspected crime relevant to Terry's "reasonable suspicion" standard; where Terry stop was based on robbery report, the specificity of description required for a stop was reduced to some extent. State v. Randall, 73 Wn. App. 225 (Div. I, 1994) Sept. '94:16

"Plain feel" case is remanded to trial court for findings on "immediate recognition" issue. State v. Hudson, 124 Wn.2d 107 (1994) Oct. '94:06

Seizure of "slippery material" from frisk subject's pocket fails "plain feel" test. State v. Tzintzun-Jimenez, 72 Wn. App. 852 (Div. II, 1994) Oct. '94:13

PC to arrest for DUI, but, because no proper foundation was laid for the trooper's reliance on PBT test results, PBT testimony given no weight in relation to PC determination. Bokor v. DOL, 74 Wn. App. 523 (Div. III, 1994) Nov. '94:10

"Pretext stop" rule is seen as a limited objective standard. State v. Chapin, 75 Wn. App. 460 (Div. I, 1994) Dec. '94:17

Citizen informant's tip justifies Terry stop of suspected drug dealer. State v. Garcia, 125 Wn.2d 239 (1994) Mar. '95:03

Terry stop -- including directive to unbelted passenger to step from car -- upheld; also, 1993 firearms law change survives "ex post facto" challenge. State v. Watkins, 76 Wn. App. 726 (Div. I, 1995) April '95:02

Fourth Amendment exclusionary rule doesn't require suppression of evidence gained in arrest based on computer record which was erroneous as result of court worker's error -- "good faith" rationale followed. Arizona v. Evans, 514 U.S. 1 (1995) May '95:03

"Single scoop" frisk rule rejected; harmless items subject to exclusion if removed from pocket with potential weapon detected in Terry patdown. State v. Fowler, 76 Wn. App. 168 (Div. III, 1994) May '95:14

For officer-safety reasons, officers may temporarily seize weapons during consent search even if scope of consent doesn't include weapons. State v. Cotten, 75 Wn. App. 669 (Div. II, 1994) May '95:15

Violation of "misdemeanor presence" rule of RCW 10.31.100 would not constitute violation of federal constitution's Fourth Amendment, and hence even if "police team" probable cause arrest not authorized under that state statute, this would not support federal civil rights lawsuit. Torrey v. Tukwila, 76 Wn. App. 32 (Div. I, 1995) May '95:19

No "destruction of evidence" exception to scope limits on Terry frisk; but PC to arrest was present, and search was reasonably contemporaneous with arrest, so evidence admissible under "incident to arrest" exception. State v. Rodriguez-Torres, 77 Wn. App. 687 (Div. I, 1995) Sept. '95:15

In questionable decision, Division III panel considers subjective belief of officer as to lack of personal safety risk in testing lawfulness of protective frisk. State v. Courtier, 78 Wn. App. 239 (Div. III, 1995) Oct. '95:04

No pretext problem with officer's stop, inquiry of traffic violator -- officer was following "normal practices and procedures" under Chapin rule. State v. Blumenthal, 78 Wn. App. 82 (Div. I, 1995) Nov. '95:13

"Excessive noise" traffic statute upheld; also, frisk upheld. State v. Olsson, 78 Wn. App. 202 (Div. III, 1995) - Jan ‘96:08

Trespass arrest fails PC test, but drug paraphernalia possession arrest OK. State v. Morgan, 78 Wn. App. 208 (Div. III, 1995) Jan ‘96:10

Arrest automatically authorized following appellate court mandate terminating review of defendant’s conviction. State v. Hunt, 76 Wn. App. 625 (Div. I, 1995) - Jan ‘96:22

Frisk under Terry v. Ohio must be based on safety concerns; it may not be mere search for evidence. State v. Alcantara, 79 Wn. App. 362 (Div. I, 1995) - Feb ’96:11

Man-With-A-Gun stop lawful because alarm for safety of others warranted per RCW 9.41.270; felony stop procedures not an "arrest". State v. Mitchell, 80 Wn. App. 143, (Div. I, 1995) - March ‘96:09

Grow operation search -- State wins on "pretext" stop and PUD information-request issues; but State loses on grow-op probable cause issue. State v. Rakosky, 79 Wn. App. 229 (Div. III, 1995) March ‘96:15

No "pretext stop" rule under Fourth Amendment. Whren v. U.S., 135 L.Ed.2d 89 (1996) - Aug ’96:09

Facts fail to support defendant’s "unlawful seizure" claim -- no seizure in officer’s simple question to parked car occupant: "Where’s the pipe?" State v. Thorn, 129 Wn. 2d 347 (1996) - Aug ‘96:13

Routine warrant check during civil traffic stop OK even if a few minutes delay involved. State v. Rife, 81 Wn. App. 258 (Div. I, 1996) - Aug ’96:17 [Reversed by State Supreme Court – see below.]

Detainee’s apparent nervousness did not justify frisk. State v. Henry, 80 Wn. App. 544 (Div. III, 1996) Aug:19 [See further discussion of Henry in October ‘96 LED article at pages 19-21].

Custodial arrest for negligent driving upheld on totality of the circumstances test. State v. Nelson, 81 Wn. App. 249 (Div. II, 1996) - Sept ’96:06

Checking contents of unoccupied unlawfully parked car during auto prowl investigation not lawful, either as frisk or as search. State v. Ozuna, 80 Wn. App. 684 (Div. III. 1996) - Sept ‘96:18

Article: "Requesting Consent to Search During a Traffic Stop -- Is It a Seizure?" - Oct: ’96:20

Terry seizure supported by reasonable suspicion; consent search OK. State v. Armenta and Cruz, 83 Wn. App.118 (Div. III, 1996) - Nov ‘96:05 [Reversed by State Supreme Court – see below.]

No pretext stop in warrant arrest; force reasonable. State v. Witherspoon, 82 Wn. App. 634 (Div. III, 1996) - Nov ‘96:07

"Hot sheet" arrest invalid where sheet should have been corrected. State v. Mance, 82 Wn. App. 539 (Div. II, 1996) - Nov ‘96:14

Arrest for noncriminal violation of DVPA order may result in civil liability. Jacques, et. al v. Sharp, et. al. and Seattle, 83 Wn. App. 352 (Div. I, 1996) -Dec ‘96:19, Feb 97:14; April 97:20

Fourth Amendment consent search law does not contain a bright-line "clear break" rule requiring that police tell traffic detainees that they are free to leave before police ask them for consent to search their vehicles; questions remain, however, regarding the lawfulness of such procedures as extended detentions. Ohio v. Robinette, 136 L.Ed.2d 347 (1997) - Feb ’97:02

Probable cause for juvenile’s arrest found in cumulative knowledge of all officers; also, Miranda waiver upheld despite "adh" disorder. State v. Harrell, 83 Wn. App. 393 (Div. I, 1996) - March ’97:14

Under Fourth Amendment "bright line" officer-safety rule, officers may automatically direct passengers to get out of any lawfully stopped motor vehicle. Maryland v. Wilson, 137 L.Ed.2d 41 (1997) - April ’97:03

Check for arrest warrants during investigative contacts ok, but inventory search at jail violates bail-warrant rule of gloria smith. State v. Caldera, Hamilton, 84 Wn. App. 527 (Div. III, 1997) - May ’97:05

One-week-old information re license suspension was reasonable suspicion for stop and probable cause to arrest; however, because car was locked before "seizure", it was off limits under "search incident" rule. State v. Perea, 85 Wn. App. 339 (Div. II, 1997) - June ’97:02

Police agency practice of keeping a regularly updated list of local suspended drivers is a constitutionally permissible practice. State v. Harlow, 85 Wn. App. 557 (Div. III, 1997) - June ’97:05

Terry stop didn’t become arrest when officer grabbed suspect and told him he was "under arrest"; totality of facts don’t equal arrest. State v. Lyons, 85 Wn. App. 268 (Div. III, 1997) - Aug ’97:18

No "seizure" in officer’s act of shining spotlight on possible suspect; hodari d. rule applied where suspect did not submit to authority. State v. young, 86 Wn. App. 253 (Div. II, 1997) - Sept ’97:14 [Affirmed on different rationale by State Supreme Court – see below.]

Extended seizure of jaywalker while warrant check conducted is disapproved on statutory grounds; constitutional issue reserved. State v. Rife, 133 Wn.2d 140 (1997) - Oct ’97:03 (see note re legislative fix, this sub topic, below)

Officer’s act of motioning driver of parked car to roll down window was not a "seizure"; precedent of Thorn guides court. State v. Knox, 86 Wn. App. 831 (Div. II, 1997) - Oct ’97:12

"Pretext stop" theory rejected under State, Federal constitutions. State v. Ladson, 86 Wn. App. 822 (Div. II, 1997) - Oct ’97:15 [Review is pending in the State Supreme Court.]

Legislation adopted in special September 1997 Washington legislative session to correct Rife’s interpretation of RCW 46. Nov ’97:03

Car passenger who disobeyed order to get back in car lawfully arrested for obstructing. State v. Mendez, 88 Wn. App. 785 (Div. III, 1997) - Feb 98:03 [Reversed by the State Supreme Court. See March 99 LED.]

No state or federal constitutional violation in vehicle "frisk". State v. Larson, 88 Wn. App. 849 (Div. I, 1997) - Feb 98:05

Terry seizure held to be unlawful because without reasonable suspicion. State v. Armenta, State v. Cruz, 134 Wn.2d 1 (1997) - March 98:05

Gun seizure during consent search OK for officer-safety purposes; also, initial Miranda violation did not taint subsequent Mirandized statement. State v. King, 89 Wn. App. 612 (Div. II, 1998) - April 98:07

Odor of meth coming from vehicle provides PC to arrest all occupants. State v. Huff, 64 Wn. App. 641 (Div. II, 1992) - April 98:09

Correctional officer lacked authority under DOC regulations to hold visitor longer than necessary to request consent to search. State v. Dane, 89 Wn. App. 226 (Div. II, 1997) - April 98:10

Group frisk, backpack frisk justified by report and observations. State v. Laskowski, 88 Wn. App. 858 (Div. I, 1997) - May 98:04

"Frisk" of vehicle OK based on reasonable suspicion re weapons. State v. Larson, 88 Wn. App. 849 (Div. I, 1997) - May 98:06

Passenger has standing to challenge lawful traffic stop that turned into an unlawful seizure. State v. Takesgun, 89 Wn. App. 608 (Div. III, 1998) - May 98:19

"Submission to authority" test for "seizure" under Hodari d rejected in independent grounds reading of State constitution’s article 1, section 7; however, spotlighting alone was not a "seizure." State v. Young, 135 Wn.2d 498 (1998) - Aug 98:02

Search of motor vehicle passenger’s purse fails "search incident" analysis; and her consent was tainted by unlawful detention by police. State v. O’Day, 91 Wn. App. 244 (Div. III, 1998) - Sept 98:15

Search can’t be justified as "incident to arrest" if the search follows an officer’s objectively manifested decision not to make a custodial arrest. State v. McKenna, 91 Wn. App. 554 (Div. II, 1998) - Oct 98:12

Lawful seizure of passenger and vehicle, leading to discovery of evidence, precludes "unlawful seizure" claim of driver. State v. Thomas, 91 Wn. App. 195 (Div. II, 1998) - Nov 98:15

Stop and frisk, as well as sufficiency of evidence to support conviction for possession of controlled substances with intent to deliver upheld. State v. Miller, 91 Wn. App. 181 (Div. II, 1998) - Dec 98:18


ASSAULT AND RELATED OFFENSES (Chapter 9A.36 RCW) Lack of knowledge of officer's status no defense to assault 3 charge where assault occurs during lawful arrest. State v. Belleman, 70 Wn. App. 778 (Div. I, 1993) March '94:15

"Transferred intent" -- legal fiction doesn't supply proof of intent as to both intended and unintended victims for a single act. State v. Wilson, 71 Wn. App. 880 (Div. II, 1993) May '94:14 [Reversed by State Supreme Court – see below.]

"Transferred intent" -- missed shot shattering window glass on house causing injury to occupant would support assault 2 conviction. State v. Bland, 71 Wn. App. 345 (Div. I, 1993) May '94:15

Chain-link-fenced yard is within home's protected "curtilage," but officers' unlawful entry to arrest with reasonable force doesn't justify resident's assault of officers. State v. Mierz, 72 Wn. App. 783 (Div. I, 1994) Oct. '94:19 [Affirmed by State Supreme Court – see below.]

Mere unlawful arrest which involves reasonable force and threatens only loss of freedom does not justify assault on officer. State v. Crider, 72 Wn. App. 815 (Div. III, 1994) Oct. '94:20

No right to use force to resist unlawful arrest which involves only reasonable force. State v. Ross, 71 Wn. App. 837 (Div. I, 1993) Oct. '94:21

Intent to assault one person constitutes intent to assault all persons under RCW 9A.36.011; restrictive "transferred intent" ruling is reversed. State v. Wilson, 125 Wn.2d 212 (1994) Feb. '95:07

No right for citizen to use force to resist merely unlawful arrest. State v. Valentine, 75 Wn. App. 611 (Div. III, 1994) Sept. '95:14 [Affirmed by State Supreme Court – see below.]

Assault 2 -- beer glass deadly weapon under attendant circumstances (where defendant broke glass on victim’s head). State v. Shilling, 77 Wn. App. 166 (Div. I, 1995) Oct. '95:12

Evidence of "intent to inflict great bodily harm" relating to assault on officer during escape attempt supports conviction for assault in the first degree. State v. Anderson, 72 Wn. App. 453 (Div. I, 1994) Oct. '95:12

Fear of harm which follows an attack may be an element of "assault". State v. Ratliff, 77 Wn. App. 522 (Div. I, 1995) Oct. '95:10

No justification for coyote-keeper's assault on wildlife officers even though they may have unlawfully entered his yard -- conviction upheld. State v. Mierz, 127 Wn.2d 460 (1995) Nov. '95:06

Boy’s intentional, unlawful touching of girl’s breast is assault in the fourth degree. State v. Parker, 81 Wn. App. 731 (Div. III. 1996) -Nov ‘96:19

Defendants entitled to "no duty to retreat" instruction in street fight assault prosecution. State v. Williams, 81 Wn. App. 738 (Div. I, 1996) - Nov ‘96:20

Consent theory could not be argued in assault case where punch thrown during pick-up basketball game. State v. Shelley, 85 Wn. App. 24 (Div. I, 1997) - June ’97:14

Citizens have no right to use force against officers to resist unlawful arrest threatening only loss of freedom. State v. Valentine, 132 Wn.2d 1 (1997) - Aug ’97:16

Assault of security guard by shoplifter is Assault Three. State v. Johnston, 85 Wn. App. 549 (Div. III, 1997) - March 98:18

Essential element of assault on law officer is knowledge of officer’s status. State v. Filbeck, 89 Wn. App. 113 (Div. II, 1997) - May 98:18


ASSISTING SUICIDE ATTEMPT (RCW 9A.36.060) Statute prohibiting assisting suicide attempt -- RCW 9A.36.060 -- declared unconstitutional. Compassion In Dying, et. al. v. State of Washington, et. al., 850 F. Supp. 1454 (U.S.D.C. W. Wash 1994) Sept. '94:19 [Reversed on appeal – see below]

Statute prohibiting promotion of suicide attempts held constitutional. Compassion In Dying v. State of Washington, 49 F.3rd 586 (9th Cir. 1995) Sept. '95:05

No constitutional right to die; assisted suicide laws upheld. State of Washington v. Glucksberg, 138 L.Ed. 2d 772 (1997) - Aug ’97:11


ATTEMPT (RCW 9A.28.020) Overt act requirement not met in case for attempted cocaine possession. State v. Grundy, 76 Wn. App. 335 (Div. III, 1994) June '95:16

Attempted rape of a child may be prosecuted despite lack of mental state element in crime. State v. Chhom, 128 Wn.2d 739 (1996) - Aug ‘96:16


ATTORNEYS AND UNLAWFUL PRACTICE OF LAW "Unlawful practice of law" statute upheld, explained. State v. Hunt, 75 Wn. App. 795 (Div. II, 1994) Oct. '95:14
BAIL BONDS Conviction exonerated pre-trial bond; owner of bail bond company lacked authority to bind the surety on a new bond following his conviction. State v. French, 88 Wn. App. 586 (Div. II, 1997) - May 98:16
BOMB THREATS Telephone threat to E-911 dispatcher to burn down store not protected speech. State v. Edwards, 84 Wn. App. 5 (Div. II, 1996) - April 98:18
BURGLARY (Chapter 9A.52 RCW) Locked bedroom in single-family house not a separate unit of "building" for purposes of first degree rape law, so no "felonious entry" (i.e., burglarious entry) proven. State v. Thomson, 71 Wn. App. 634 (Div. II, 1993) June '95:20

Burglary -- fenced area for park's donkey held to be "building". State v. Gans, 76 Wn. App. 445 (Div. I, 1994) Aug. '95:17

No burglary in evidence locker theft attempt -- locker not "building". State v. Deitchler, 75 Wn. App. 134 (Div. II, 1994) Nov. '95:19

Juvenile guilty of burglarizing father’s locked bedroom. State v. Crist, 80 Wn. App. 511 (Div. II, 1996) - Aug ‘96:21

"Trespassed" shoplifter committed burglary when he shoplifted from same store again. State v. Kutch, 90 Wn. App. 244 (Div. III, 1998) - May 98:09

"Unlawful entry" element of burglary conviction holds up for would-be thief caught in grade school classroom with weak "Autumn" story. State v. Allen, 90 Wn. App. 957 (Div. III, 1998) - Aug 98:13

Fingerprint evidence alone fails to support conviction for burglary where there is reasonable innocent explanation for presence of prints. State v. Bridge, 91 Wn. App. 98 (Div. Iii, 1998) - Aug 98:15

Staying to threaten occupants of home after being asked to leave supports burglary conviction. State v. Davis, 90 Wn. App. 776 (Div. I, 1998) - Aug 98:17

California’s pro-government burglary rule -- allowing proof of unlawful entry based on entry-with-intent -- rejected in car wash case. State v. Miller, 90 Wn. App. 720 (Div. III, 1998) - Aug 98:18


CHAIN-OF-CUSTODY Arsonist loses on issues of standing, chain-of-custody, and corpus delicti. State v. Picard, 90 Wn. App. 890 (Div. II, 1998) - Dec 98:15
CIVIL LIABILITY (Including "reverse" lawsuits by officers) Civil liability -- prior conviction, though later overturned on appeal, conclusively establishes probable cause for purposes of law enforcement agency defense against arrestee's subsequent civil suit for malicious prosecution. Hanson v. City of Snohomish, 121 Wn.2d 552 (1993) Jan. '94:08

Officers successful at trial court level in malicious prosecution counterclaim arising out of lawsuit over vehicle forfeiture under Uniform Controlled Substances Act. Jan. '94:20

Officers settle malicious prosecution appeal. Nov. '94:21

Violation of "misdemeanor presence" rule of RCW 10.31.100 would not constitute violation of federal constitution's Fourth Amendment, and hence even if "police team" probable cause arrest not authorized under that state statute, this would not support federal civil rights lawsuit. Torrey v. Tukwila, 76 Wn. App. 32 (Div. I, 1995) May '95:19

"Failure to protect" civil liability case must go to jury. Noakes v. Seattle, 77 Wn. App. 694 (Div. I, 1995) Oct. '95:21

"Good guy - bad guy" interrogation method doesn't support civil lawsuit for "outrage" or "negligent infliction of emotional distress". Keates v. Vancouver, 73 Wn. App. 257 (Div. II, 1994) Nov. '95:18

Defamation verdict for WSP trooper upheld. Richmond v. Thompson, 79 Wn. App. 327 (Div. I, 1995) - March ‘96:13 [Affirmed by State Supreme Court – see below.]

Prisoners’ injunctive action over law library access lacks merit. Lewis v. Casey, 135 L.Ed.2d 606 (1996) - Sept ‘96:03

Landlord assistance case must go to jury as civil rights action. Kalmas v. Wagner, 82 Wn. App. 105 (Div. II, 1996) - Oct ‘96:07 [Reversed by State Supreme Court – see below.]

Arrest for noncriminal violation of DVPA order may result in civil liability. Jacques, et. al v. Sharp, et. al. and Seattle, 83 Wn. App. 531 (Div. I, 1996) - Dec ‘96:20

Police officers may sue citizen complainants for defamation. Richmond v. Thompson, 130 Wn.2d 369 (1996) - Jan ’97:09

Civil liability exposure for searching persons under unsupported warrant authorization for searching "any persons on the premises." Marks v. Clarke, 102 F.3rd 1012 (9th Cir. 1996) - April ’97:08

Public duty doctrine does not protect DSHS from liability for failing to investigate report of child abuse; "legislative intent" exception applies. Yonker v. DSHS, 85 Wn. App. 71 (Div. I, 1997) - May ’97:19

Public duty doctrine bars suit by drunk driver for her injuries; she was not in the class of victims that the legislature intended to protect. Alexander v. Walla Walla, 84 Wn. App. 687 (Div. III, 1997) - May ’97:20

LEOFF II officers, like LEOFF I officers, still may sue their employers. Fray v. Spokane County, 85 Wn. App. 150 (Div. III, 1997) - June ’97:11 [Affirmed by State Supreme Court – see below.]

Notice provided after execution of search warrant inadequate. Perkins v. City of West Covina, 113 F.3d 1004 (9th Cir. 1997) - Aug ’97:14 [Review is pending in U.S. Supreme Court.]

Prison guards working for private contracting firms not entitled to qualified civil rights immunity; only public entities get any immunity. Richardson v. McNight, 138 L.Ed.2d 540 (1997) - Nov ’97:04

7-11 had general civil liability duty to protect customers from parking lot rowdies but no specific duty to hire guards. Nivens v. Hoagy’s Corner, 133 Wn.2d 192 (1997) - Jan 98:10

Civil rights suit against sheriff’s deputies dismissed; under totality of circumstances, deputies’ assistance to landlord was not unreasonable search. Kalmas v. Wagner, 133 Wn.2d 210 (1997) - Jan 98:11

Deputy prosecutor not absolutely immune from civil rights liability for certifying probable cause on charging document. Kalina v. Fletcher, 118 S.Ct. 502 (1997) - March 98:04

LEOFF II officers, like LEOFF I officers, may sue their employers as well as collecting workers’ compensation benefits. Elford v. City of Battle Ground, 87 Wn. App. 229 (Div. II, 1997) - March 98:20

LEOFF II, like LEOFF I, still may sue their employers for negligence as well as collecting workers’ compensation benefits. Fray v. Spokane County, 134 Wn.2d 637 (1998) - May 98:04

High speed pursuit does not trigger protection under Due Process clause unless it "shocks the conscience." County of Sacramento v. Lewis, 140 L.Ed. 2d 1043 - July 98:16

Same-sex sexual harassment subject to sex discrimination lawsuit under Federal Civil Rights Act. Oncale v. Sundowner Offshore Servs., Inc., 118 S.Ct. 998 (1998) - July 98:18

ADA program accessibility/public accommodation provisions extend to prisoners in correctional facilities. Pennsylvania DOC v. Yeskey, 118 S.Ct. 1952 (1998) - Sept 98:03

"Disability" definition of ADA covers HIV infection, even during asymptomatic stages. Bragdon v. Abbott, 118 S. Ct. 2196 (1998) - Sept 98:03

Sexual harassment – High Court clarifies rules on A) employer vicarious liability for acts of supervisors, and B) affirmative defense. Burlington Industries v. Ellerth, 118 S. Ct. 2257 (1998) and Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998) - Sept 98:05


CIVIL SERVICE AND EMPLOYMENT LAW Noncommissioned police personnel must be covered by civil service. Teamsters v. City of Moses Lake, 70 Wn. App. 404 (Div. III, 1993) March '94:11

Attorney General opinion: Transfer of sheriff’s personnel on forming of new city police department. July ‘96:21

Officer can’t choose to pursue grievance of suspension where he has already allowed a civil service commission order to become final. Civil Service Commission of the city of Kelso v. City of Kelso, 87 Wn. App. 907 (Div. II, 1997) - Feb 98:21 [Reversed by State Supreme Court -- see March 99 LED]

Employment law – discipline OK for lying during misconduct investigation. LaChance v. Erickson, 118 S.Ct. 753 (1998) - May 98:03

COLLATERAL ESTOPPEL/RES JUDICATA

City barred under doctrine of collateral estoppel from civil action forfeiting firearms where county prosecutor had previously lost suppression motion in criminal proceedings re seizure of those firearms. Barlindal v. City of Bonney Lake, 84 Wn. App. 37 (Div. II, 1996) - April ’97:17

DSHS civil proceeding re overpayment does not bar criminal prosecution for same acts; however, duress/battered woman defense allowable. State v. Williams, 132 Wn.2d 248 (1997) - Nov ’97:07

In civil forfeiture case, claimant barred by collateral estoppel rule from re-arguing suppression issue on which he previously lost in criminal case. City of Des Moines v. $81,231, 87 Wn. App. 689 (Div. I, 1997) - March 98:16


COMMERCE CLAUSE Federal statute banning guns near schools violates commerce clause. U.S. v. Lopez, 131 L. Ed.2d 626 (1995) Sept. '95:04
COMPROMISE OF MISDEMEANORS (Chapter 10.22 RCW) Law re "compromise of misdemeanors" covers gross misdemeanors and misdemeanors. State v. Britton, 84 Wn. App. 146 (Div. I, 1996) - June ’97:21
COMPUTER BULLETIN BOARD NOTE: LED's are available on WSCJTC computer bulletin board. Jan. '95:21

NOTE: 1989 - 1993 LED subject matter index on CJTC computer bulletin board. April '95:21


CONSPIRACY (RCW 9A.28.040) "Substantial step" element of "conspiracy" statute easier to prove than "substantial step" element of "attempt" statute. State v. Dent, State v. Balcinde, 123 Wn.2d 467 (1994) July '94:08

Undercover agent is not another person for purposes of conspiracy statute's agreement element; bilateral criminal agreement required. State v. Pacheco, 125 Wn.2d 150 (1994) Feb. '95:07 [The conspiracy statute has since been amended to plug the Pacheco loophole.]

Under "Wharton’s rule", jury instruction on conspiracy to deliver controlled substances must refer to involvement of a third party. State v. Miller, 131 Wn.2d 78 (1997) - May ’97:03


CORPUS DELICTI RULE Corpus delicti of attempted first degree murder established. State v. Vangerpen, 71 Wn. App. 94 (Div. I, 1993) March '94:10 [Affirmed by State Supreme Court – see below.]

DUI corpus delicti established with evidence of: proximity of suspect to vehicle, motor vehicle registration, and passed-out occupant inside. State v. Sjogren, 71 Wn. App. 779 (Div. III, 1993) Nov. '94:04

Corpus delicti established for crime of possessing controlled substances. State v. Solomon, 73 Wn. App. 724 (Div. I, 1994) Nov. '94:17

Corpus delicti for murder established by state in case of missing body. State v. Thompson, 73 Wn. App. 654 (Div. I, 1994) Nov. '94:18

Admissible child hearsay re: genital pain provides corpus delicti for confession in rape case. State v. Biles, 73 Wn. App. 281 (Div. III, 1994) Nov. '94:19

Corpus delicti for admissibility of child-rape confession established through defendant's own trial testimony. State v. Mathis, 73 Wn. App. 341 (Div. II, 1994) Nov. '94:20

Corpus delicti of attempted murder established, so statement admissible. State v. Vangerpen, 125 Wn.2d 782 (1995) May '95:07

Unlawful firearm possession: corpus delicti rule like that for DUI; state required to and did produce evidence that defendant had gun. State v. Wright, 76 Wn. App. 811 (Div. I, 1995) Aug. '95:21

Confessions inadmissible where no corpus delicti established for crimes of theft and burglary. State v. DuBois and State v. Bustamonte, 79 Wn. App. 605 (Div. I, 1995) - April ‘96:19

Corpus delicti for felony murder established without corroboration of underlying felony. State v. Burnette, 78 Wn. App. (Div. I, 1995) - April ‘96:20

Confessions and admissions not admissible because corpus delicti for manslaughter two not established in "SIDS" death case. State v. Aten, 79 Wn. App. 79 (Div. II, 1995) - April ‘96:20 [Affirmed by State Supreme Court – see below.]

Corpus delicti rule for rendering criminal assistance in concealing murder – there must be evidence that someone other than murderer assisted in hiding the body. Such evidence was established in this case through witness testimony and circumstance of concealment. State v. Dodgen, 81 Wn. App. 487 (Div. I, 1996) - Nov ‘96:16

Corpus delicti of manslaughter not established in possible sids death; also, confession voluntariness and Miranda clarification addressed. State v. Aten, 130 Wn. 2d 640 (1996) - March ’97:06

Corpus delicti of child molesting not established; also, court rejects state’s request for replacement of traditional corpus delicti rule with "trustworthiness" standard for admissibility of confessions and admissions. State v. Ray, 130 Wn.2d 673 (1996) - March ’97:11

Child molester loses on issues of "hue and cry" hearsay exception, counselor-patient privilege, right-of-confrontation, and corpus delicti rule. State v. Ackerman, 90 Wn. App. 477 (Div. III, 1998) - Oct 98:19

Arsonist loses on issues of standing, chain-of-custody, and corpus delicti. State v. Picard, 90 Wn. App. 890 (Div. II, 1998) - Dec 98:15
 


CRIME VICTIMS’ COMPENSATION Article: "Crime victims’ compensation program alive and well in Washington." - June ‘96:02
CRIMINAL MISTREATMENT (Chapter 9A.42 RCW) Fetus not a "child" within meaning of criminal mistreatment statute, and therefore mother’s ingestion of cocaine during pregnancy is not chargeable under chapter 9A.42 RCW. State v. Dunn, 82 Wn. App. 122 (Div. III, 1996) - Sept ‘96:16
CRIMINAL PROSECUTION OF OFFICERS FOR ILLEGAL SEARCHES (RCW 10.79.040-045) Police officer may be criminally prosecuted for (A) alleged bad faith warrantless search, (B) criminal trespass, (C) official misconduct. State v. Groom, 80 Wn. App. 717 (Div. III, 1996) - Aug ‘96:19 [Affirmed under differing analysis by State Supreme Court – see below.]

Criminal statutes on warrantless police searches interpreted as allowing for constitutional exceptions to warrant requirement but as not requiring proof of bad faith or any other mental state on the officer’s part. State v. Groom, 133 Wn.2d 679 (1997) - Jan 98:06


CURFEW LAWS San Diego juvenile curfew ordinance invalidated on constitutional grounds. Nunez v. City of San Diego, 114 F.3d 935 (9th Cir. 1997) - Aug ’97:15

Bellingham juvenile curfew law ruled unconstitutional. State v. J.D., 86 Wn. App. 501 (Div. I, 1997) - Aug ’97:23


DEADLY FORCE Under Tennessee v. Garner, deadly force justified against fleeing felon where "substantial risk" of death or serious bodily harm in delaying capture. Forrett v. Richardson, 112 F.3d 416 (9th Cir. 1997) - Aug ’97:11

Garner deadly force issue: was method "reasonably likely to kill?" Vera Cruz v. City of Escondido, 126 F.3d 1214 (9th Cir. 1997) - Jan 98:03


DEFAMATION Police officers may sue citizen complainants for defamation. Richmond v. Thompson, 130 Wn.2d 369 (1996) - Jan ’97:09
DEFERRED PROSECUTION Once-every-five-years limit on deferred prosecutions under former chapter 10.05 RCW starts when first court grants deferred prosecution status. State v. Bays, 90 Wn. App. 731 (Div. II, 1998) - Nov 98:13
DISCOVERY Criminal discovery rules -- home addresses of cooperating state's witnesses protected from disclosure to defense; protection is for "personal safety" reasons. State v. Mannhalt, 68 Wn. App. 757 (Div. I, 1992) March '94:08

Aggravated first degree murder conviction of Island County deputy-killer affirmed. State v. Hutchinson, 135 Wn.2d 863 (1998) - Oct 98:11

DOMESTIC VIOLENCE Superior court directive that domestic violence arrestees be detained without bail until their first appearance in court is held lawful. Westerman v. Cary, 125 Wn.2d 277 (1994) March '95:06

Arrest for noncriminal violation of DVPA order may result in civil liability. Jacques, et. al v. Sharp, et. al. and Seattle, 83 Wn. App. 532 (Div. I, 1996) - Dec ‘96:19

Clarification regarding mandatory arrest, discretionary arrest, no arrest for court order violations in domestic violence situations. Jacques v. Sharp, 83 Wn. App. 532 (Div. I, 1996) - Feb ’97:14

Domestic violence -- Jacques v. Sharp and "mandatory arrest vs. no arrest" for court order violations; revisiting the issues and looking ahead. Jacques v. Sharp, 83 Wn. App. 532 (Div. I, 1996) -April ’97:20

Victim cannot "consent" to violation of dvpa order. State v. DeJarlais, 88 Wn. App. 297 (Div. II, 1997) - March 98:17 [Affirmed by the State Supreme Court – see March 99 LED]


DOUBLE JEOPARDY; EXCESSIVE FINES State constitution's double jeopardy clause no broader than federal constitution's clause -- test is whether crimes contain same elements. State v. Gocken, 127 Wn.2d 95 (1995) Oct. '95:03

No double jeopardy in DUI prosecution and civil license suspension. Research note. Nov. '95:20

No violation of double jeopardy, speedy trial, or due process rights where State changed DUI charge (on which Higley had received a deferred prosecution) to vehicular assault upon learning of extent of victim’s injuries. State v. Higley, 78 Wn. App. 172 (Div. II, 1995) - Jan ‘96:20

UCSA forfeiture of proceeds not subject to double jeopardy restriction; also, PC-to-search and power-records-access issues resolved for State. State v. Cole, 128 Wn.2d 262 (1995) - Feb ‘96:02

In rem civil forfeitures -- whether based on use of property or on status of property as proceeds -- are not punishment for double jeopardy purposes; such civil forfeitures therefore do not bar subsequent criminal prosecution. U.S. v. Ursery, 135 L.Ed.2d 549 (1996) - Aug ‘96:11

No double jeopardy issue where drug forfeiture not contested. State v. Anderson, 81 Wn. App. 636 (Div. II, 1996) - Sept ‘96:16

Drug forfeiture: constitutional excessiveness analysis examines both (1) instrumentality factors and (2) proportionality factors; also, homestead question addressed, gets pro-government ruling; and double jeopardy issue controlled by Ursery’s pro-government ruling. Tellevik v. Real Property Known As 6717 100th St. S.W., 83 Wn. App. 366 (Div. II, 1996) - Feb ’97:10

Forfeiture of crime profits under Criminal Profiteering Act not punishment under "double jeopardy" or "excessive fines" analysis. State ex. rel. Eikenberry v. Frodert, 84 Wn. App. 20 (Div. II, 1996) - Feb ’97:13

Search of just-prowled vehicle ok as community caretaking search; also no double jeopardy problem in civil forfeiture, criminal conviction. State v. Lynch, 84 Wn. App. 467 (Div. III, 1997) - May ’97:08

No double jeopardy in dui prosecutions for dui defendants previously issued probationary licenses in relation to the same incidents. State v. McClendon (and others), 131 Wn.2d 853 (1997) - Nov ’97:09

Double jeopardy under Washington constitution is the same as under the federal constitution - in rem civil forfeiture is not punishment and therefore such forfeitures do not bar subsequent criminal prosecution. State v. Catlett, 133 Wn.2d 355 (1997) - Dec ’97:18

Double jeopardy arguments against "civil" sanctions virtually eliminated. Hudson v. United States, 118 S.Ct. 488 (1997) - March 98:04

No double jeopardy problem in 1) conviction for MIP and 2) license suspension for driving with alcohol in system for same act. Rowe v. DOL, 88 Wn. App. 781 (Div. III, 1997) - May 98:15

Forfeiture of over $350,000 under currency-smuggling law held to be "excessive fine." U.S. v. Bajakajian, 118 S. Ct. 2028 (1998) - Sept 98:04

Double jeopardy prohibition doesn’t bar multiple attempts to prove sufficiency of prior conviction under "three strikes" law. Monge v. California, 118 S. Ct. 2246 (1998) - Sept 98:07

Criminal profiteering act penalty does not violate double jeopardy. Winchester v. Stein, 135 Wn.2d 835 (1998) - Oct 98:10


DUE PROCESS Due process clause requires notice and hearing before seizing real property under drug forfeiture laws. U.S. v. Good, 126 L. Ed.2d 490 (1993) March '94:02

"Erotic music statute" invalidated on due process grounds. Soundgarden v. Eikenberry, 123 Wn.2d 750 (1994) July '94:10

Sex offender registration statute upheld against constitutional challenge. State v. Ward, John Doe Parolee v. State, 123 Wn.2d 488 (1994) July '94:11

Multi-faceted attack on BAC verifier datamaster machines fails. Federal (Youngblood) due process standard adopted on "preservation of evidence" issue under Washington Constitution; state and federal due process protections are identical. State v. Wittenberger, 124 Wn.2d 467 (1994) Nov. '94:03

State constitution's double jeopardy clause no broader than federal constitution's clause -- test is whether crimes contain same elements. State v. Gocken, 127 Wn.2d 95 (1995) Oct. '95:03

DOL may rely on statutory change-of-address requirements in mailing notice of driver's license revocation; due process challenge fails. State v. Rogers, 127 Wn.2d 270 (1995) Nov. '95:09

NOTE: No double jeopardy in DUI prosecution and civil license suspension. Nov. '95:20

No violation of double jeopardy, speedy trial, or due process rights where State changed DUI charge (upon which Higley had received deferred prosecution) to vehicular assault upon learning of extent of victim’s injuries. State v. Higley, 78 Wn. App. 172 (Div. II, 1995) - Jan ‘96:20

Fish sting should not have been dismissed on "outrageous government conduct" grounds. State v. Rundquist, 79 Wn. App. 786 (Div. II, 1995) - March ‘96:18

Destruction of arson evidence by third party does not implicate "due process" protections; but insurance company loses on restitution issue. State v. Martinez, 78 Wn. App. 870 (Div. II, 1995) - April ‘96:21

"Outrageous government conduct" claim by drug defendant successful in first-time-ever due process dismissal of charges by State Supreme Court. State v. Lively, 130 Wn.2d 1 (1996) - Jan ’97:07

Unreasonable preaccusatorial delay of approximately eight weeks in charging juvenile until after he passed age 18 requires dismissal of charges. State v. Frazier, 82 Wn. App. 576 (Div. II, 1996) - Feb ’97:13

DUI law's two-hour rule re BAC's at 0.10% or above violates due process by impermissibly shifting proof of burden to defendant; therefore, in a DUI prosecution based on the two-hour rule, prosecution must negate possibility of effect of post-driving alcohol consumption. State v. Crediford,130 Wn.2d 747 (1996) - March ’97:03

Showup id procedure not impermissibly suggestive. State v. Shea, 85 Wn. App. 56 (Div. II, 1997) - June ’97:07

Notice provided after execution of search warrant inadequate. Perkins v. City of West Covina, 113 F.3d 1004 (9th Cir. 1997) - Aug ’97:14 This decision was reversed by the U.S. Supreme Court in January 1999. See March 99 LED.

No due process problems in scheduling of forfeiture hearing. In re the Forfeiture of One 1988 Black Chevrolet Corvette, etc., 91 Wn. App. 320 (Div. I, 1997) - Feb 98:13

Tacoma adopts procedure for dealing with personal property seizure. Perkins v. City of West Covina, 113 F.3d 1004 (9th Cir. 1997) - July 98:13 [This decision was reversed by the U.S. Supreme Court. See March 99 LED.]

High speed pursuit does not trigger protection under Due Process clause unless it "shocks the conscience." County of Sacramento v. Lewis, 140 L.Ed. 2d 1043 (1998) - July 98:16

Detective’s misconduct in courtroom results in dismissal of charges. State v. Granacki, 90 Wn. App. 598 (Div. I, 1998) - Aug 98:19


DURESS DEFENSE (RCW 9A.16.060) DSHS civil proceeding re overpayment does not bar criminal prosecution for same acts; however, duress/battered woman defense allowable. State v. Williams, 132 Wn.2d 248 (1997) Nov ’97:07
ELECTRONIC SURVEILLANCE AND MONITORING (Chapter 9.73 RCW) Electronic surveillance under RCW 9.73.230 -- police chief's 24-hour extension for one-party-consent intercept cannot be preapproved. State v. Gonzalez, 71 Wn. App. 715 (Div. III, 1993) March '94:06

If federal agents lawfully intercept and record conversations without state or local law enforcement involvement, the recordings may be used to obtain a Washington court order for recording, even though the federal agents’ tapes would not be admissible in a Washington trial. State v. Pacheco, 70 Wn. App. 27 (Div. II, 1993) March '94:11

Supervisor-authorized tape recording of drug deal admissible even though there was no evidence that post-recording judicial review was done. State v. Moore, 70 Wn. App. 667 (Div. I, 1993) May '94:11

Detective's act of listening in at tipped phone receiver not unlawful. State v. Corliss, 123 Wn.2d 656 (1994) June '94:02

Videotaping of DWI stop without recording sound not prohibited by chapter 9.73 RCW. Haymond v. DOL, 73 Wn. App. 758 (Div. I, 1994) Oct. '94:16

Street drug vendors get no privacy under electronic recording law (9.73). State v. D.J.W. (and nine others), 76 Wn. App. 135 (Div. I, 1994) Jan. '95:02 [Affirmed by the State Supreme Court – see below.]

Supervisor's authorization for RCW 9.73.230 single-party consent recording of drug-deal conversations must specify which officers will record; several other RCW 9.73.230 issues resolved favorably to the State. State v. Jimenez, 76 Wn. App. 647 (Div. I, 1995) June '95:18 [Reversal of suppression ruling by State Supreme Court under "good faith" analysis – see below.]

Defendant loses Miranda challenge and 9.73 challenge to admission of tape recordings of police barricade negotiations over the telephone. State v. Pejsa, 75 Wn. App. 139 (Div. II, 1994) Dec. '95:18

Answering phone while executing search warrant does not violate home occupant’s statutory (9.73) or constitutional (Art. 1, Sec. 7) rights. State v. Gonzales (Hector), 78 Wn. App. 976 (Div. I, 1995) - Jan ‘96:22

Citizen’s use of scanner on "24-hour-a-day" basis to eavesdrop on drug-growing neighbors’ cordless telephone conversations violates RCW 9.73; even results of follow-up investigation by police, exploiting the eavesdropping evidence to obtain a "consent", excluded. State v. Faford, State v. Caskey, 128 Wn.2d 476 (1996) - April ‘96:02

Sheriff’s agreement re task force gives task force authority to electronically intercept throughout county; but based on narrow interpretation of chapter 9.73 RCW, Court of Appeals holds that non-task force member cannot authorize interception outside employer’s territory; other 9.73 issues -- preservation of tape, post-recording review -- also addressed. State v. Knight, 79 Wn. App. 670 (Div. II, 1995) - April ‘96:07

Failure to name officers participating in agency-authorized recording of drug deal conversations violates RCW 9.73.230, but "good faith" saves evidence. State v. Jimenez, 128 Wn.2d 720 (1996) - May ‘96:03

Paper for agency-authorized recording of illegal drug conversation per RCW 9.73.230 must specify location of expected recording activity if known. State v. Smith, 80 Wn. App. 535 (Div. I, 1996) - June ‘96:19. On further review, State Supreme Court indicates good faith omission of necessary location information in application for agency-authorized tape recording may not require blanket suppression under 9.73 RCW. State v. Tommy Quenton Smith, [129 Wn.2d 1022, unpublished order of State Supreme Court dated July 10, 1996] - Oct ‘96:03 [On remand, the Court of Appeals found again that location should have been specified, but that the trial court error in admitting the tape recording was harmless. 85 Wn. App. 381 (Div. I, 1997) This second Court of Appeals decision was not reported in LED.]

No 9.73 privacy act protection for street drug vendors. State v. Clark, 129 Wn.2d 211 (1996) - July ‘96:07

Boilerplate re inadequacy of alternative investigative methods in application for court-ordered single-party consent recording criticized. State v. Manning, 81 Wn. App. 714 (Div. I, 1996) - Sept ‘96:14

Supervisor-approved officer-safety wire per RCW 9.73.210 fails for lack of specificity in two respects in regard to written request; but good faith compliance effort makes officer’s independent testimony admissible. State v. Costello, 84 Wn. App. 150 (Div. III, 1996) - April ’97:17

Supervisor-authorized tape recording of drug conversation may include multiple conversations which occur within 24-hour limit of rcw 9.73.230. State v. Forest, 85 Wn. App. 71 (Div. I, 1997) - May ’97:18

Failure to re-Mirandize on tape invalidates recorded statement from arrestee. State v. Mazzante, 86 Wn. App. 425 (Div. II, 1997) - Aug ’97:20

California officers’ failure to follow chapter 9.73 in recorded interrogation not attributed to Washington officers Miranda warnings ok, too, even though they did not include explicit "before questioning" phrase in relation to attorney right. State v. Brown, 132 Wn.2d 529 (1997) - Oct ’97:08

No privacy for one who leaves message on phone answering machine. Farr v. Martin, 87 Wn. App. 177 (Div. I, 1997) - April 98:11


ENTRAPMENT (RCW 9A.16.070) Informant's persistence in effort to buy drugs not entrapment. State v. Trujillo, Chrisostomo, 75 Wn. App. 523 (Div. I, 1994) April '95:13

Fish sting should not have been dismissed on "outrageous government conduct" grounds. State v. Rundquist, 79 Wn. App. 786 (Div. II, 1995) - March ‘96:18

"Outrageous government conduct" claim by drug defendant successful in first-time-ever due process dismissal of charges by State Supreme Court. State v. Lively, 130 Wn.2d 1 (1996) - Jan ’97:07


EQUAL PROTECTION Statute mandating revocation of juveniles' drivers' licenses following alcohol, drug offenses survives equal protection challenge. State v. Shawn P., 122 Wn.2d 553 (1993) Jan. '94:06

Sex offender registration statute upheld against constitutional challenge. State v. Ward, John Doe Parolee v. State, 123 Wn.2d 488 (1994) July '94:11

Firearms law's restriction on aliens survives constitutional attack. State v. Hernandez-Mercado, 124 Wn.2d 368 (1994) Feb. '95:10


EROTIC MUSIC LAW "Erotic music statute" invalidated on due process grounds. Soundgarden v. Eikenberry, 123 Wn.2d 750 (1994) July '94:10
ESCAPE (RCW 9A.76 .110-130) AND RELATED CRIMES Leaving residence without permission while serving home detention sentence is escape even if person continues to wear monitoring device. State v. Parker, 76 Wn. App. 747 (Div. III, 1995) Aug. '95:22

"Failure to return from furlough," not "escape," should have been charged because specific statute controls over general. State v. Smeltzer, 86 Wn. App. 818 (Div. III, 1997) - March 98:21

Failing to report to work crew duty per criminal sentence is "escape." State v. Guy; State v. Ammons, 87 Wn. App. 238 (Div. II, 1997) - March 98:21 [Affirmed by the State Supreme Court – see Jan 99:09.] ]


EVIDENCE LAW Evidence law ruling -- medical diagnosis hearsay exception allows testimony regarding child's identification of assailant to treating doctor. State v. Ashcraft, 71 Wn. App. 444 (Div. I, 1993) Feb. '94:14

Officer properly testified as an expert that DWI arrestee had been "obviously intoxicated". City of Seattle v. Heatley, 70 Wn. App. 573 (Div. I, 1993) March '94:11

Officer gone bad loses appeal on attempted murder, drug conspiracy convictions. Also, court addresses issues relating to electronic surveillance law, CI fee standards, and failure to preserve evidence; witness' hourly fee was not contingent on outcome of case, so it was permissible. State v. Pacheco, 70 Wn. App. 27 (Div. II, 1993) March '94:11 [Reversed by State Supreme Court in strict reading of former conspiracy statute. 125 Wn.2d 150 (1994) Feb 95:07]

Horizontal gaze nystagmus test is on hold. State v. Cissne, 72 Wn. App. 677 (Div. III, 1994) April '94:08

Evidence rule 609(a)(2) -- "joyriding" is a crime of dishonesty, and hence evidence re: joyriding conviction is per se admissible to impeach witness. State v. Trepanier, 71 Wn. App. 382 (Div. I, 1993) May '94:20

"Frye" test continues to govern admissibility of scientific evidence in Washington courts. State v. Riker, 123 Wn.2d 51 (1994) July '94:07

PC to arrest for DUI, but, because no proper foundation was established to justify trooper’s reliance on PBT, PBT testimony given no weight in relation to probable cause determination. Bokor v. DOL, 74 Wn. App. 523 (Div. III, 1994) Nov. '94:10

DNA evidence created by PCR technique generally admissible; also, Miranda exclusionary rule gets pro-state reading parallel to federal rule. State v. Russell, 125 Wn.2d 24 (1994) Feb. '95:08

Expert testimony re -- (1) gamma marker testing of blood and (2) PCR/DNA typing -- for ID purposes held admissible in capital murder prosecution. State v. Gentry, 125 Wn.2d 570 (1995) March '95:06

Child's statements to social worker admissible under hearsay exception for "statements made for medical diagnosis and treatment". State v. Florczak, 76 Wn. App. 55 (Div. I, 1994) March '95:17

Four-year-old's statement to sex abuse therapist admissible under ER 803(a)(4)'s hearsay exception for statements made for medical diagnosis and treatment. Dependency of M.P., 76 Wn. App. 87 (Div. I, 1994) March '95:18

Child witness competent, child sex abuse hearsay admissible. State v. Pham, 75 Wn. App. 626 (Div. III, 1994) March '95:19

Child sex abuse hearsay law allows hearsay even if child testifies. State v. Bedker, 74 Wn. App. 87 (Div. I, 1994) March '95:21

"Smith affidavit" qualifies as a "prior inconsistent statement" under the hearsay rule exception at Evidence Rule (ER) 801(d)(1)(i). State v. Nelson, 74 Wn. App. 380 (Div. I, 1994) May '95:21

"Other offenses" evidence admissible if offenses very similar to the one at trial: "Common scheme or plan" provision of ER 404(b) construed. State v. Lough, 125 Wn.2d 847 (1995) June '95:06

Priest-penitent privilege of RCW 5.60.060(3) gets narrowing construction. State v. Buss, 76 Wn. App. 780 (Div. I, 1995) Aug. '95:22

Expert ok in testifying generally about heroin users, dealers, their environment. State v. Cruz, 77 Wn. App. 811 (Div. I, 1995) Oct. '95:08

Officer's opinion that defendant "was the one running the show" was ok, not impermissible opinion as to defendant's guilt as an accomplice. State v. Fisher, 74 Wn. App. 804 (Div. I, 1994) Oct. '95:08

Hearsay, constructive possession issues resolved against defendant in drug case where officer executing search warrant answered the phone. State v. Collins, 76 Wn. App. 496 (Div. I, 1995) Oct. '95:17

Medical records admitted under "business records" hearsay exception. State v. Garrett, 76 Wn. App. 719 (Div. I, 1995) Oct. '95:20

Trigger for "excited utterance" hearsay rule need not be crime itself. State v. Owens, 78 Wn. App. 897 (Div. I, 1995) - Feb ‘96:14

"Excited utterance," "medical diagnosis" hearsay rule exceptions apply. State v. Sims, 77 Wn. App. 236 (Div. I, 1995) - Feb ‘96:17

Five-year-old found competent to testify. State v. Avila, 78 Wn. App. 731 (Div. I, 1995) - April ‘96:11

Noncustodial telephone questioning in apparent PC/focus situation does not trigger Miranda; also, defense "authentication" objection rejected. State v. Mahoney, 80 Wn. App. 495 (Div. III, 1996) - May ‘96:08

Partially fabricated story told in 911 call not an "excited utterance". State v. Brown, 127 Wn.2d 749 (1995) - Aug ‘96:15

Statement following lengthy questioning was not an "excited utterance". State v. Owens, 128 Wn.2d 908 (1996) - Aug ‘96:16

No unstipulated evidence at trial re polygraph of defendant, even in relation to child hearsay admissibility question. State v. Gregory, 80 Wn. App. 516 (Div. I, 1996) - Aug ‘96:22

No "excited utterance" where person no longer under stress of statement-triggering event. State v. Sharp, 80 Wn. App. 457 (Div. III, 1996) - Aug ‘96:22

No in camera hearing to review privileged rape-victim counseling records under RCW 18.19.180 unless defendant makes special showing of likely relevance of records. State v. Demel, 81 Wn. App. 464 (Div. I, 1996) - Oct ‘96:16

Closed circuit TV testimony by distressed child witness OK. State v. Foster, 81 Wn. App. 444 (Div. I, 1996) - Oct ‘96:16

Child victim hearsay statute requires corroboration of alleged acts where child doesn’t testify; child who takes witness stand but does not describe acts of sexual contact cannot be deemed to have "testified". State v. Rohrich, 82 Wn. App. 674 (Div. III, 1996) - Nov ‘96:19 [Affirmed by State Supreme Court – see below.]

"Frye test" for novel scientific evidence continues to apply in Washington criminal cases; dna "product rule" testimony admitted. State v. Copeland, 130 Wn.2d 244 (1996); State v. Cannon, 130 Wn.2d 313; (1996); State v. Jones, 130 Wn.2d 302 (1996) - Jan ’97:11

PBT test result not admissible for any purpose without Frye hearing; however, the facts of (a) administration of the pbt test and (b) officer’s failure to preserve results of pbt test do not taint subsequent bac test. State v. Smith (Rodger), 130 Wn.2d 215 (1996) - Jan ‘97:13

Blood alcohol evidence taken by medical personnel after motor vehicle accident not subject to physician-patient privilege. State v. Smith (Lamar), 84 Wn. App. 813 (Div. I, 1997) - June ’97:09

BB gun threat substantial step toward threat to use deadly weapon supporting conviction for attempted first degree kidnapping; victim statement to police 20 minutes after attempt "excited utterance". State v. Majors, 82 Wn. App. 843 (Div. I, 1996) - June ’97:20

Child abuse hearsay held inadmissible where available child victim takes witness stand but does not describe acts of sexual contact. State v. Rohrich, 132 Wn.2d 472 (1997) - Oct ’97:10

DNA evidence testimony – expert may give unique-profile conclusion. State v. Buckner, 133 Wn.2d 63 (1997) - Jan 98:11

Drug delivery conviction should not have been admitted to impeach defendant; victims' "excited utterances" were properly admitted, however. State v. Hardy, 133 Wn.2d 701 (1997) - April 98:04

No evidence law privilege for statement made at accident scene to paramedic. State v. Ross, 89 Wn. App. 302 (Div. I, 1997) - April 98:13

"Recorded recollection" hearsay exception applies to recanting witness. State v. Alvarado, 89 Wn. App. 543 (Div. I, 1998) - May 98:10

"Medical diagnosis or treatment" hearsay exception requires some level of understanding by patient of the purpose of visit. State v. Carol M.D. and Mark A.D., 89 Wn. App. 77 (Div. III, 1997) - May 98:12 [On October 2, 1998, the State Supreme Court directed the Court of Appeals to reconsider this case in light of the Supreme Court’s decision in the A.E.P case at 135 Wn.2d 208 – see A.E.P. entry below.]

Digitally enhancing fingerprints OK for ID purposes under Frye. State v. Hayden, 90 Wn. App. 100 (Div. I, 1998) - May 98:16

Military evidence rule barring all polygraph evidence survives review. U.S. v Scheffer, 118 S.Ct. 1261 (1998) - July 98:17

Child sex abuse testimony inadmissible because time frame of abuse not established; also, hearsay re abuse not sufficiently corroborated. In Re the Welfare of A.E.P. & W.M.P., 135 Wn.2d 208 (1998) - Aug 98:07

Child molester loses arguments on "hue and cry" hearsay exception, counselor-patient privilege, right-of-confrontation, and corpus delicti rule. State v. Ackerman, 90 Wn. App. 477 (Div. III, 1998) - Oct 98:19

Detective can’t testify re his interpreter’s translation of interrogation. State v. Garcia-Trujillo, 89 Wn. App. 203 (Div. I, 1997) - Nov 98:11

Evidence of prior uncharged sexual misconduct admitted against child molester where it shows the offender’s common scheme or plan. State v. Baker, 89 Wn. App. 726 (Div. I, 1998) - Nov 98:18

Division Two of Court of Appeals takes broader view regarding protections of priest-penitent confidential communications privilege than does Division One. State v. Martin, 91 Wn. App. 621 (Div. II, 1998) - Dec 98:20


EX POST FACTO DOCTRINE Sex offender registration statute upheld against constitutional challenge. State v. Ward, John Doe Parolee v. State, 123 Wn.2d 488 (1994) July '94:11

Terry stop -- including directive to unbelted passenger to step from car -- upheld; also, 1993 firearms law change survives "ex post facto" challenge. State v. Watkins, 76 Wn. App. 726 (Div. I, 1995) April '95:02

No ex post facto problem with applying "Three Strikes" law to convictions for offenses which occurred before effective date of law. State v. Angehrn, 90 Wn. App. 339 (Div. I, 1998) - Nov 98:12


EXCLUSIONARY RULE (See "Exclusionary rule" sub topic under "Search and Seizure" topic this index)


FALSE IMPERSONATION

Using false ID to return merchandise, alone, not "false impersonation". Seattle v. Schurr, 76 Wn. App. 82 (Div. I, 1994) April '95:15
FALSE REPORTS, MISLEADING REPORTS ORDINANCE False, misleading reports city ordinance withstands constitutional challenge. Yakima v. Irwin, 70 Wn. App. 1 (Div. III, 1993) April '94:14
FIREARMS LAWS (Chapter 9.41 RCW) AND OTHER WEAPONS LAWS "Brady Bill" information from ATF. April '94:15

City firearms-discharge ordinance within exception to preemption clause of state firearms statute. Seattle v. Ballsmider, 71 Wn. App. 159 (Div. I, 1993) May '94:18

Firearms law's restriction on aliens survives constitutional attack. State v. Hernandez-Mercado, 124 Wn.2d 368 (1994) Feb. '95:10

Terry stop -- including directive to unbelted passenger to step from car -- upheld; also, 1993 firearms law change survives "ex post facto" challenge. State v. Watkins, 76 Wn. App. 726 (Div. I, 1995) April '95:02

Federal firearms law provisions on restoration of firearms rights construed as automatically restoring rights upon discharge from conviction unless discharge order expressly declares that firearms possession prohibited; related Washington state statute subject to contrary interpretation. U.S. v. Herron, 45 F.3rd 340 (9th Cir. 1995) June '95:05

Unlawful firearm possession: corpus delicti rule like that for DUI; State required to and did produce evidence that defendant had gun. State v. Wright, 76 Wn. App. 811 (Div. I, 1995) Aug. '95:21

Federal statute banning guns near schools violates commerce clause. U.S. v. Lopez, 131 L. Ed.2d 626 (1995) Sept. '95:04

Evidence sufficient to support conviction under dangerous weapons statute (RCW 9.41.250). State v. Myles, 127 Wn.2d 807 (1995) - Feb ‘96:10

See Legislative Update, Part I, 1996 Firearms Law Amendments, June LED at pages 14-17; See also Q & A at September LED, pages 20-22.

Juvenile court adjudications were firearms possession disqualifiers under pre-1994 version of RCW 9.41.040. State v. Cheatham, 80 Wn. App. 269 (Div. I, 1996) - Aug ‘96:20

Seattle ordinance prohibiting the carrying -- concealed or unconcealed -- of dangerous knives held constitutional. City of Seattle v. Montana; City of Seattle v. McCullough, 129 Wn.2d 583 (1996) - Dec ‘96:17

Atf letters address new federal gun bar re persons with convictions of "misdemeanor crime(s) of domestic violence." - Jan ’97:20

Former firearms law made felon’s unlawful possession of multiple firearms just one crime; current law would permit multiple counts. State v. Russell, 84 Wn. App. 1 (Div. II, 1996) - Jan ’97:18

Firearms possession bar for prior convictions under rcw 9.41.040 does not have "knowledge of unlawfulness" element. State v. Reed, 84 Wn. App. 379 (Div. II, 1997) - April ’97:11

BB gun threat substantial step toward threat to use deadly weapon supporting conviction for attempted first degree kidnapping; victim statement to police 20 minutes after attempt "excited utterance". State v. Majors, 82 Wn. App. 843 (Div. I, 1996) - June ’97:20

1994 Federal gun law amendments -- restraining order restrictions - July ’97:20

Brady rule for cleo background checks on handgun buyers stricken. Prinz v. U.S., Mack v. U.S., 138 L.Ed.2d 914 (1997) - Aug ’97:10

No mental state element in firearms possession statute. State v. Semakula, 88 Wn. App. 719 (Div. I, 1997) - March 98:21

Juvenile adjudications were firearms possession disqualifiers under 1994 law. State v. Wright, 88 Wn. App. 683 (Div. I, 1997) - April 98:12

Federal gun law provision deferring to state law on restoration of gun rights not applicable unless there is full restoration. Caron v. U.S., 118 S. Ct. 2007 (1998) - Sept 98:06

Federal law against "carrying" a firearm during certain crimes includes having gun in locked trunk during commission of crime. Muscarello v. U.S., 118 S. Ct. 1911 (1998) - Sept 98:08

"Necessity" is defense to charge for "unlawful possession of a firearm." State v. Stockton, 91 Wn. App. 35 (Div. I, 1998) - Nov 98:09

Theft of multiple guns one offense under former sentencing law. State v. Roose, 90 Wn. App. 513 (Div. III, 1998) - Nov 98:11


FORFEITURE LAW (See also "Double Jeopardy"; "Due Process"; "Excessive Fines" and "Uniform Controlled Substance Act") No double jeopardy where uncontested forfeiture action for criminal activity is followed by criminal prosecution arising from same activity. U.S. v. Cretacci, 62 F.3rd 307 (9th Cir. 1995) Nov. '95:03

Search warrant needed to authorize delayed investigative search of vehicle seized under drug forfeiture law; also, work release search conditions expire at some point after work releasee arrested for new crime. State v. Hendrickson, 129 Wn.2d 61 (1996) - July ‘96:11

In rem civil forfeitures -- whether based on use of property or on status of property as proceeds -- are not punishment for double jeopardy purposes; such civil forfeitures therefore do not bar criminal prosecution. U.S. v. Ursery, 135 L.Ed.2d 549 (1996) - Aug ‘96:11

No constitutional requirement for "innocent owner" protection in forfeiture laws. Bennis v. Michigan, 134 L.Ed.2d 68 (1996) - Aug ‘96:12

Claimant of property has right to return of property unless: (1) he or she is not rightful owner, (2) the property is contraband, or (3) the property is subject to forfeiture. State v. Angulo, 77 Wn. App. 657 (Div. I, 1995) - Oct ‘96:19

Drug forfeiture: constitutional excessiveness analysis examines both (1) instrumentality factors and (2) proportionality factors; also, homestead question addressed, gets pro-government ruling; and double jeopardy issue controlled by Ursery’s pro-government ruling. Tellevik v. Real Property Known As 6717 100th St. S.W., 83 Wn. App. 366 (Div. II, 1996) - Feb ’97:10

Forfeiture of crime profits under Criminal Profiteering Act not punishment under "double jeopardy" or "excessive fines" analysis. State ex.rel. Eikenberry v. Frodert, 84 Wn. App. 20 (Div. II, 1996) - Feb ’97:13

City barred under doctrine of collateral estoppel from civil action forfeiting firearms where county prosecutor had previously lost suppression motion in criminal proceedings re seizure of those firearms. Barlindal v. City of Bonney Lake, 84 Wn. App 135 (Div. II, 1996) - April ’97:17
 
 

Real property not forfeitable if "growers" learn of police investigation and clear out before police actually discover grow operation. City of Everett v. Real Prop. Known As 4827 268th St. NW, Stanwood, Snohomish Cty, 86 Wn. App. 69 (Div. I, 1997) - Oct ’97:17
 
 

Double jeopardy arguments against "civil" sanctions virtually eliminated. Hudson v. United States, 118 S.Ct. 488 (1997) - March 98:04
 


FORGERY (RCW 9A.60.020)  
 

Showing false ID to officer, knowing falsity of ID, is "forgery". State v. Esquivel, 71 Wn. App. 868 (Div. III, 1993) May '94:04
 
 

Would-be forger who fails to sign check as "drawer" can't be convicted of forgery. State v. Smith (Alisa L.), 72 Wn. App. 237 (Div. II, 1993) May '94:11
 
 

Fake ID bank withdrawal scheme "forgery", not "money laundering". State v. Aitken, 79 Wn. App. 890 (Div. I, 1995) - April ‘96:15
 


FREEDOM OF RELIGION/ESTABLISHMENT OF RELIGION Chaplaincy program gets First Amendment scrutiny. Malyon v. Pierce County, 79 Wn. App. 452 (Div. II, 1995) - Aug ‘96:21 [Program generally upheld by State Supreme Court in decision not covered in LED – the Supreme Court decision is reported at 131 Wn.2d 779 (1997).]
FREEDOM OF SPEECH Free speech -- Seattle's "coercion" ordinance unconstitutionally overbroad. Seattle v. Ivan, 71 Wn. App. 145 (Div. I, 1993) May '94:19

First Amendment problem for two sections of cable TV act of 1992. Denver Area Ed. Tel. Consortium, Inc. v. FCC, 135 L.Ed.2d 888 (1996) - Sept ‘96:03

Injunction restraints on protesters at abortion clinics: floating buffer zones too restrictive, fixed buffer zones ok. Schenck v. Pro-Choice Network of Western New York, 137 L.Ed. 2d 211 (1997) - April ’97:07

Adult entertainment ordinance upheld against constitutional attack. Ino Ino, Inc. v. Bellevue, 132 Wn.2d 103 (1997) - Nov ’97:09

"Seattle sitting ordinance" upheld against constitutional attack. City of Seattle v. McConahy, City of Seattle v. Hoff, 86 Wn. App. 557 (Div. I, 1997) - April 98:18

State’s civil law ban on false political ads fails free speech test. State of Washington v. 119 Vote No, 135 Wn.2d 618 (1998) - Oct 98:11


HARASSMENT (Civil) (Chapter 10.14 RCW)
 
  Superior Court has authority to issue civil anti-harassment orders. McIntosh v. Nafziger, 69 Wn. App. 906 (Div. I, 1993) April '94:14
HARASSMENT (Criminal) (Chapter 9A.46 RCW)
 
  Single act of harassment supports conviction under RCW 9A.46.020. State v. Alvarez, 128 Wn.2d 1 (1995) - March ‘96:08
 
 

Harassment law’s future injury element requires proof of threat to injure at a different time or place. Seattle v. Allen, 80 Wn. App. 824 (Div. I, 1996) - Sept ‘96:19 [This statute was amended in 1997 to plug the Allen loophole and allow prosecution for threats of immediate harm.]
 
 

Criminal harassment: victim may have reasonable fear of being harmed in manner other than precisely that described by perpetrator. State v. Savaria, 82 Wn. App. 832 (Div. I, 1996) - March ’97:19
 


IMPLIED CONSENT, BREATH, AND BLOOD TESTS FOR ALCOHOL CONTENT
 
  Blood sample may be obtained with search warrant in non-exigent circumstances; no adversarial hearing required. State v. Kalakosky, 121 Wn.2d 525 (1993) Feb. '94:12
 
 

Implied consent warning became confusing where officer said license "probably" would be suspended. Mairs v. DOL, 70 Wn. App. 541 (Div. I, 1993) Feb. '94:18
 
 

Advising DWI arrestee that refusal of breath test "may" be used against him held unlawful. Frank v. Department of Licensing, 71 Wn. App. 585 (Div. III, 1993) Feb. '94:18
 
 

Miranda warning's inclusion of "by the court" language doesn't require suppression of statements, blood test. State v. Teller, 72 Wn. App. 49 (Div. III, 1993) April '94:11
 
 

Officer's summary report satisfies implied consent statute. Broom v. DOL, 72 Wn. App. 498 (Div. I, 1994) May '94:06
 
 

Broad-based challenge to license revocation under former implied consent law fails; deficiencies in officer's report to DOL cured where he appeared and testified in superior court hearing. Johnson v. Dept. of Licensing, 71 Wn. App. 326 (Div. II, 1993) May '94:16
 
 

Implied consent warnings -- court addresses procedure for showing indigency in relation to the right to a second breath test. State v. Berkley, 72 Wn. App. 12 (Div. I, 1993) May '94:17
 
 

Implied consent: license revocation following alcohol test refusal upheld; dazed arrestee had sufficient capacity to decide whether to take test. Nettles v. DOL, 73 Wn. App. 730 (Div. III, 1994) August '94:10
 
 

Driver's reconsideration of his refusal of blood alcohol test timely under judge-made totality-of-the-circumstances test. DOL v. Lax, 74 Wn. App. 7 (Div. II, 1994) Oct. '94:14 [Reversed by the State Supreme Court – see below.]
 
 

Multi-faceted attack on BAC verifier datamaster machines fails. State v. Wittenberger, 124 Wn.2d 467 (1994) Nov. '94:03
 
 

NOTE: "Administrative per se" license revocation for DUI -- update. Feb. '95:20
 
 

Violation at jail of DUI arrestee's right to independent test requires dismissal -- jailers should have explained right to 2nd test. State v. McNichols, 76 Wn. App. 283 (Div. III, 1994) March '95:13 [Reversed by the State Supreme Court – see below.]
 
 

DUI arrestee's refusal of BAC test final -- no reconsideration allowed. DOL v. Lax, 125 Wn.2d 818 (1995) May '95:04
 
 

Offering blood test to DUI suspect being treated post-accident at hospital not justified under implied consent law unless no breath machine available at that particular hospital. Shelden v. DOL, 68 Wn. App. 681 (Div. II, 1993) May '95:19
 
 

Implied consent warnings need not go beyond the warnings expressly required by statute; under 1994 law, there was no need to warn of new administrative consequences or of new DUI penalty enhancements. State v. Bostrom, et. al., 127 Wn.2d 580 (1995) Nov. '95:03
 
 

ARTICLE: 1995 changes to DUI and implied consent laws. By James Schmid, Assistant Attorney General. Nov. '95:04
 
 

NOTE: No double jeopardy in DUI prosecution and civil license suspension. Nov. '95:20
 
 

Good news, bad news: BAC test does not begin with mouth check, but "right to counsel" rule (CrRLJ) requires early, limited, post-arrest warning. State v. Trevino, 127 Wn.2d 735 (1995) - Jan ‘96:03
 
 

Jailers did not interfere with DUI arrestee’s right to additional BAC test. State v. McNichols, 128 Wn.2d 242 (1995) - Feb ‘96:07
 
 

Repair technician on BAC circuit boards need not be certified. State v. McGinty, 80 Wn. App. 157 (Div. I, 1995) - May ‘96:15
 
 

Post-vehicular homicide blood test without advice not admissible; also, urine sample not admissible in evidence because no toxicologist protocol for urine. State v. Anderson, 80 Wn. App. 384 (Div. I, 1996) - July ‘96:18
 
 

Toxicologist’s requirement of preservation of blood samples with anticoagulant mandatory. State v. Garrett, 80 Wn. App. 651 (Div. III, 1996) - Aug ‘96:20
 
 

Consent to blood test by vehicular homicide suspect not under arrest invalidated based on lack of prior warnings re right to additional test. State v. Rivard, 80 Wn. App. 633 (Div. III, 1996) - Sept ‘96:14 [Reversed by the State Supreme Court – see below.]
 
 

Implied consent-- obsessive compulsive disorder no defense to license revocation for refusal to take bac test because disorder not physical. Medcalf v. DOL, 83 Wn. App. 8 (Div. II, 1996) - March ’97:19 [Affirmed by State Supreme Court -- see below.]
 
 

Where driver not under arrest following mva, police may lawfully request driver’s consent to blood test without implied consent warnings. State v. Rivard, 131 Wn.2d 63 (1997) - April ’97:09
 
 

Where bac device malfunctions, dui suspects may be moved to another device for breath samples; new implied consent warnings not required. State v. Brokman, Dixon, 84 Wn. App. 848 (Div. II, 1997) - May ’97:13
 
 

Blood alcohol evidence taken by medical personnel for medical purposes after motor vehicle accident not subject to physician-patient privilege. State v. Smith (Lamar), 84 Wn. App. 813 (Div. I, 1997) - June ’97:09
 
 

Air Force security officer held to be "law enforcement officer" for purposes of implied consent law as undefined term gets a broad reading. Williams v. DOL, 85 Wn. App. 271 (Div. II, 1997) - Sept ’97:07
 
 

Implied consent-- obsessive compulsive disorder no defense to license revocation for refusal to take bac test, because disorder not physical. Medcalf v. DOL, 133 Wn.2d 290 (1997) - Dec ’97:18
 
 

DOL bulletin #1: administrative DUI hearings: why cases are dismissed. Jan 98:20
 
 


INDIANS AND LAW ENFORCEMENT
 
  State has nonconsensual jurisdiction over Indian tribal member’s crime committed on trust land outside reservation boundaries. State v. Cooper, 130 Wn.2d 770 (1996) - April ’97:12
 
 

Based on 1957 nisqually tribe resolution, state had jurisdiction to try enrolled members of nisqually tribe for conduct on reservation land. State v. Squally, 132 Wn.2d 333 (1997) - Nov ’97:05
 
 

Non-Indian family member didn’t lawfully "assist" fishing by absent family member. State v. Price, 87 Wn. App. 424 (Div. I, 1997) - May 98:15
 
 


INFANCY DEFENSE (RCW 9A.04.050)
 
  Infancy defense: Court addresses proof of knowledge that act "wrong". State v. Linares, State v. Pam, 75 Wn. App. 404 (Div. I, 1994) Sept. '95:16
 
 

Infancy defense – rcw 9A.04.050 presumption of noncriminality for children between 8 and 12 gets pro-defense reading in sex offense cases. State v. James P.S., 85 Wn. App. 586 (Div. III, 1997) - Sept ’97:16 [Affirmed by State Supreme Court – see below.]
 
 

10-year old’s criminal capacity in fire-setting case shown by history of past acts and lectures, plus other evidence of child’s awareness that conduct was wrong. State v. J.F., 87 Wn. App. 787 (Div. I, 1997) - Feb 98:10
 
 

Infancy defense: eleven-year-old lacked capacity to commit rape of child. State v. J.P.S., 135 Wn.2d 34 (1998) - July 98:21
 
 


INSANITY DEFENSE (RCW 9A.12.010) AND RELATED DEFENSES
 
  Multiple personality disorder defense re absence of necessary mental state does not apply where alter personality had requisite mental state. State v. Jones, 82 Wn. App. 871 (Div. III, 1996) - March ’97:20
INTERNET
 
  Training commission world Wide Web Home Page - Sept ’97:21
 
 

Internet access to Washington appellate court decisions. - Oct 98:21
 
 


INTERROGATIONS AND CONFESSIONS (See also "Sixth Amendment and related State Law Provisions")
 
  Spanish translation of Miranda warnings adequate. State v. Teran, 71 Wn. App. 668 (Div. III, 1993) March '94:04
 
 

Adult court declination warning in juvenile Miranda warning to DWI violator not accurate, but does not require suppression of juvenile's post-arrest statements. State v. Schatmeier, et. al., 72 Wn. App. 711 (Div. III, 1994) April '94:10
 
 

Miranda warning's inclusion of "by the court" language doesn't require suppression of statements, blood test. State v. Teller, 72 Wn. App. 49 (Div. III, 1993) April '94:11
 
 

Officer's uncommunicated "focus" is irrelevant to Miranda custody issue: only formal arrest or equivalent restraint triggers warnings mandate. Stansbury v. California, 128 L. Ed.2d 293 (1994) July '94:02
 
 

CrRLJ 3.1 requires that arresting officer give immediate warning of right to counsel following arrest even if no interrogation to follow. State v. Trevino, 74 Wn. App. 496 (Div. III, 1994) August '94:02 [Reversed under "harmless error" analysis by the State Supreme Court – see below.]
 
 

Note: CJTC Miranda card changes in warnings to juveniles are made to conform to 1994 amendments to Title 13 RCW relating to declination to adult court. August '94:21; Oct. '94:22
 
 

Slim majority of U.S. Supreme Court holds that arrestee's assertion during interrogation -- "maybe I should talk to a lawyer" -- isn't Miranda assertion. Davis v. U.S., 129 L. Ed.2d 362 (1994) Sept. '94:02
 
 

DNA evidence created by PCR technique generally admissible. Also, Miranda exclusionary rule gets pro-state reading parallel to federal rule: where suspect’s statement is taken in violation of Miranda but is uncoerced, then the statement must be suppressed in the State’s case-in-chief, but evidence derived from that statement need not be suppressed. State v. Russell, 125 Wn.2d 24 (1994) Feb. '95:08
 
 

No Miranda warnings required before questioning convicted defendant participating in sex offender treatment program as part of his sentence. State v. Warner, 125 Wn.2d 876 (1995) May '95:08
 
 

Questioning by officers following fatal MV accident not "custodial" for Miranda purposes; free-to-leave, probable cause tests rejected. State v. Ferguson, 76 Wn. App. 560 (Div. I, 1995) May '95:10
 
 

Where Miranda violation results in both testimonial response and voluntary production of physical evidence, only testimonial element of response is required to be suppressed; Wethered precedent followed. State v. Lozano, 76 Wn. App. 116 (Div. III, 1994) May '95:15
 
 

No anticipatory, non-custodial invocation of Miranda rights under "initiation of contact" rule; also, no "focus" trigger to Miranda. State v. Warness, 77 Wn. App. 636 (Div. I, 1995) Sept. '95:06
 
 

No "cat out of the bag" rule under Miranda. State v. Baruso, 72 Wn. App. 603 (Div. I, 1993) Sept. '95:11
 
 

"Good guy - bad guy" interrogation method doesn't support civil lawsuit for "outrage" or "negligent infliction of emotional distress". Keates v. Vancouver, 73 Wn. App. 257 (Div. II, 1994) Nov. '95:18
 
 

Defendant loses Miranda challenge and 9.73 challenge to admission of tape recordings of police barricade negotiations over the telephone. State v. Pejsa, 75 Wn. App. 139 (Div. II, 1994) Dec. '95:18
 
 

Good news, bad news: BAC test does not begin with mouth check, but "right to counsel" rule (CrRLJ) requires early, limited post-arrest warning. State v. Trevino, 127 Wn.2d 735 (1995) - Jan ‘96:03
 
 

No Miranda "interrogation" in officer’s spontaneous patrol car statement to arrestee. State v. Breedlove, 79 Wn. App. 101 (Div. II, 1995) - April ‘96:17
 
 

Noncustodial telephone questioning in apparent PC/focus situation does not trigger Miranda; also, defense "authentication" objection rejected. State v. Mahoney, 80 Wn. App. 495 (Div. III, 1996) - May ‘96:08
 
 

Violation of Sixth Amendment "initiation of contact" rule requires suppression of statement, even though detective was not aware of defendant’s earlier court appearance triggering the Sixth Amendment bar. State v. Valdez, 82 Wn. App. 294 (Div. III, 1996) - Oct ‘96:04
 
 

Right to counsel warning requirement under crr 3.1 and Trevino decision: (A) was triggered by "custody" and (B) was violated; no prejudice found in violation, however. State v. Copeland, 130 Wn.2d 244 (1996) - Jan ’97:03
 
 

"Right to silence" extends to pre-arrest law enforcement contacts; State cannot call to jury’s attention defendant’s post-contact, pre-arrest silence. State v. Easter, 130 Wn.2d 228 (1996) - Jan ’97:13
 
 

Corpus delicti of manslaughter not established in possible sids death; also, confession voluntariness and Miranda clarification addressed. State v. Aten, 130 Wn.2d 640 (1996) - March ’97:06
 
 

Probable cause for juvenile’s arrest found in cumulative knowledge of all officers; also, Miranda waiver upheld despite juvenile’s "adh" disorder. State v. Harrell, 83 Wn. App. 393 (Div. I, 1996) - March ’97:14
 
 

State did not make unlawful use of defendant’s pre-arrest silence. State v. Lewis, 130 Wn.2d 700 (1996) - May ’97:03
 
 

Objective custody trigger to miranda; focus irrelevant, but warnings required prior to officer’s questioning of 14-year-old in school office. State v. D.R., 84 Wn. App. 832 (Div. I, 1997) - May ’97:10
 
 

Failure to re-mirandize on tape invalidates recorded statement. State v. Mazzante, 86 Wn. App. 425 (Div. II, 1997) - Aug ’97:20
 
 

Sixth Amendment rule regarding waiver of rights does not require that defendant first be advised of existence of pending charges. State v. Medlock, 86 Wn. App. 89 (Div. III, 1997) - Aug ’97:21
 
 

California officers’ failure to follow Chapter 9.73 in recorded interrogation not attributed to Washington officers; content of Miranda warnings by California officers were adequate, though not ideal, where they had arguable ambiguity regarding right to have attorney present before questioning. State v. Brown, 132 Wn.2d 529 (1997) - Oct ’97:08
 
 

CrR 3.1 (c)(2) requires that officer help with attorney-contact when suspect ends interrogation with attorney request. State v. Kirkpatrick, 89 Wn. App. 407 (Div. II, 1997) - March 98:12
 
 

Exclusionary rule for earlier Miranda violation does not bar testimony: A) from follow-up interrogator who did Mirandize, or B) from witnesses that follow-up interrogator located based on his Mirandized interrogation. State v. Dods, 87 Wn. App. 312 (Div. II, 1997) - March 98:19
 
 

Gun seizure during consent search OK for officer-safety purposes; also, initial Miranda violation did not taint subsequent Mirandized statement. State v. King, 89 Wn. App. 612 (Div. II, 1998) - April 98:07
 
 

In-custody defendant "initiates contact" after assertion of right to counsel. State v. Birnel, 89 Wn. App. 459 (Div. III, 1998) - April 98:11
 
 

Corroboration not necessary to prove Miranda waiver in one-on-one interrogation. State v. Haack, 88 Wn. App. 423 (Div. I, 1997) - April 98:14
 
 

Deception in police questioning not necessarily improper. State v. Furman, 122 Wn.2d 440 (1993) - July 98:20
 
 

Detective acted properly in seeking clarification from arrestee who had responded to Miranda warnings by stating he would be needing a court-appointed attorney because he couldn’t afford to hire one. State v. Copeland, 89 Wn. App. 492 (Div. II, 1998) - Aug 98:09
 
 

In-court assertion of 6th amendment counsel right on charged murder doesn’t raise 5th amendment bar to police contact on unrelated uncharged murder; nor was any bar to police contact raised by attorney’s attempts to contact defendant as police questioned him. State v. Stackhouse, 90 Wn. App. 344 (Div. III, 1998) - Sept 98:20
 
 

Fifth Amendment bars testimony re refusal by DUI suspect to take FST. City of Seattle v. Stalsbroten, 91 Wn. App. 226 (Div. I, 1998) - Nov 98:17 [Review is pending in the State Supreme Court.]
 
 


INTIMIDATING A JUDGE (RCW 9A.72.160)
 
  "Intimidating a judge" conviction affirmed; intent that threat be communicated to judge is not an element of crime of intimidating a judge. State v. Hansen, 122 Wn.2d 712 (1993) Feb. '94:06
INTIMIDATING A PUBLIC SERVANT (RCW 9A.76.180)
 
  Statutory prohibition against "intimidating a public servant" not constitutionally overbroad. State v. Stephenson, 89 Wn. App. 794 (Div. II, 1998) - May 98:19
INTIMIDATING A WITNESS (RCW 9A.72.110)
 
  "Intimidating a witness" includes threats before investigation begins. State v. James, 88 Wn. App. 812 (Div. II, 1997) - March 98:15
INTOXICATION DEFENSE (RCW 9A.16.090)  
 

No mental state element for any variation of "rape" offenses; hence, voluntary intoxication no defense to second degree rape charge. State v. Brown, 78 Wn. App. 891 (Div. II, 1995) - April ‘96:21
 
 

Jury instruction on voluntary intoxication was not required even though some witnesses testified that defendant was "intoxicated" at time of offense. State v. Gabryschak, 83 Wn. App. 249 (Div. I, 1996) - April 98:16
 
 


JUVENILE JUSTICE (See also "Infancy Defense")
 
  Under former law, juvenile offense adjudication as "felony with sexual motivation" didn't require that juvenile register as sex offender. State v. S.M.H., 76 Wn. App. 550 (Div. I, 1995) Oct. '95:10
 
 

Juvenile sex offenders must register, continue to do so, after adulthood. State v. Acheson, 75 Wn. App. 51 (Div. II, 1994) Nov. '95:19
 
 

Adult division of superior court may not issue arrest warrant for juvenile. State v. Werner, 79 Wn. App. 872 (Div. II, 1995) - April ‘96:13 LED (Reversed by State Supreme Court -- see next entry)
 
 

Adult division of superior court has authority to issue warrant for juvenile’s arrest. State v. Werner, 129 Wn.2d 485 (1996) - Oct ‘96:04
 
 

Rcw 13.04.030 requirement of adult court criminal prosecutions for 16-and 17-year-olds who commit violent crimes is not constitutionally defective. State v. Boot, 130 Wn.2d 553 (1996) - March ’97:13
 
 

Law on juvenile transfer to adult prison held constitutionally valid. Monroe v. Soliz, 132 Wn.2d 414 (1997) - Oct ’97:11
 
 


KIDNAPPING AND RELATED OFFENSES (Chapter 9A.40 RCW) (See also "Luring")
 
  Kidnap evidence sufficient. State v. Ong, 88 Wn. App. 572 (Div. II, 1997) - Feb 98:15
 
 

"Custodial interference" evidence held sufficient. State v. Pesta, 87 Wn. App. 515 (Div. I, 1997) - March 98:19
 
 
 


LEGISLATION  
 

Washington Legislation -- 1994 -- Part One, June: 5-22 (includes "firearms act overhaul", 16-22); Part Two, July: 14-21 (all firearms law); Part Three, August:12-21 (includes firearms law notes at 21); Part Four, September: 20.
 
 

Washington Legislation -- 1995 -- Part One, June: 2-5; Part Two, July: 2-23 (Includes "The Becca Bill;" Domestic Violence Amendments; and Implied Consent and DUI changes); Part Three, August: 3-11; Index of June, July, August Legislative Entries, Sept. '95:19-20
 
 

1996 Washington Legislative enactments -- Part One - June ‘96:02
 
 

1996 Washington Legislative enactments -- Part Two - July ‘96:01
 
 

Correction notice re 1996 death benefit legislation - July ‘96:21
 
 

1996 Washington Legislative enactments -- Part Three (Subject matter index for parts I, II, and III at pages 8-9) - Aug ‘96:05
 
 

More Q and A on 1996 firearms law amendments - Sept ‘96:20
 
 

Legislative updates for 1997: Part One, July ’97:02-18; Part Two, Aug ’97:02-07; Part Three (including index), Aug ’97:02-07; Rife legislation note: Nov ’97:03; Legislative update oversight corrected: Dec ’97:19
 
 

Legislative updates for 1998: Part One, June:02-23; Part Two, July 2-13 (including index); Follow-up note re Pen Register, Aug:21
 
 
 


LIMITATIONS PERIODS (Including RCW 9A.04.080)  
 

Securities fraud law interpreted; also, "lulling" rule for fraud limitations period applied. State v. Argo, 81 Wn. App. 552 (Div. I, 1996) - Oct ‘96:15
 
 

Legislation increasing limitations period applies to all prior crimes not yet time-barred. State v. Foster, 81 Wn. App. 508 (Div. I, 1996) - Oct ‘96:16
 
 

Statute of limitations of RCW 9A.04.080(1)(g) on continuing "common scheme or plan" crime begins to run only upon completion of crime. State v. Reid, 74 Wn. App. 281 (Div. III, 1994) Aug. '95:21
 
 


LINEUPS, PHOTO IDENTIFICATIONS AND SHOWUPS
 
  Showup ID procedure not impermissibly suggestive. State v. Shea, Wn. App. 56 (Div. II, 1997) June 97:07
LOSS OF, DESTRUCTION OF, OR FAILURE TO PRESERVE EVIDENCE
 
  Officer gone bad loses appeal on attempted murder, drug conspiracy convictions; court addressees issues relating to electronic surveillance law, CI fee standards, and failure to preserve evidence. Youngblood's "bad faith" rule applied in rejecting defendant's "lost evidence" argument. State v. Pacheco, 70 Wn. App. 27 (Div. II, 1993) March '94:11 [Conviction reversed under strict reading of former conspiracy statute. 125 Wn.2d 150 (1994) Feb 95:07]
 
 

"Preservation of evidence" rule remains unresolved; evidence of speeding sufficient to support reckless driving inference instruction. State v. Hanna, 123 Wn.2d 704 (1994) July '94:12
 
 

Multi-faceted attack on BAC verifier datamaster machines fails. Federal (Youngblood) due process standard adopted on "preservation of evidence" issue under Washington Constitution; state and federal due process protections are identical. State v. Wittenberger, 124 Wn.2d 467 (1994) Nov. '94:03
 
 

Brady rule requiring prosecution to disclose evidence favorable to defendant construed in favor of defense in capital murder case. Kyles v. Whitley, 131 L.Ed.2d 490 (1995) Sept. '95:04
 
 


LURING (RCW 9A.40.090)
 
  "Luring" statute not unconstitutionally vague; evidence sufficient to support conviction. State v. Dana, 84 Wn. App. 166 (Div. I, 1996) - June ’97:13
MALICIOUS HARASSMENT (RCW 9A.36.080)
 
  Malicious harassment law (RCW 9A.36.080) does not require proof of: (1) "preselection of victim (in anti-bias protected class)", or (2) bias as "substantial factor" behind prohibited threats or acts. State v. Pollard, 80 Wn. App. 60 (Div. I, 1995) - May ‘96:13
 
 

Accomplice, as knowing aid in crime, has principal’s special mental state in "malicious harassment" as with other crimes. State v. Robertson, Lewis, and Jack, 88 Wn. App. 836 (Div. I, 1997) - March 98:17
 
 


MALICIOUS MISCHIEF (Chapter 9A.48 RCW)
 
  Destruction of property with malice toward lessee, not owner, of property is sufficient evidence to support malicious mischief conviction. State v. VanValkenburgh, 70 Wn. App. 812 (Div. III, 1993) Feb. '94:17
 
 

Sales tax on repair costs included in determining damages to decide the degree assigned to malicious mischief. State v. Gilbert, 79 Wn. App. 383 (Div. III, 1995) - Jan ‘96:21
 
 


MINOR IN POSSESSION (RCW 66.44.270)
 
  Statute mandating revocation of juveniles' drivers' licenses following alcohol, drug offenses survives equal protection challenge. State v. Shawn P., 122 Wn.2d 553 (1993) Jan. '94:06
 
 

1) Odor plus 2) intoxication plus 3) presence at kegger supports MIP conviction under "consuming" portion of statute. State v. Dalton, 72 Wn. App. 674 (Div. III, 1994) Sept. '94:14
 
 

MIP conviction affirmed -- id card admissible as "public record." State v. C.N.H., 90 Wn. App. 947 (Div. I, 1998) - Oct 98:17
 
 

Under MIP law, "public place" does not include back patio of residence. State v. S.E., 90 Wn. App. 886 (Div. I, 1998) - Oct 98:18
 
 
 


MONEY LAUNDERING (Chapter 9A.83 RCW)  
 

Fake ID bank withdrawal scheme "forgery", not "money laundering". State v. Aitken, 79 Wn. App. 890 (Div. I, 1995) - April ‘96:15
 
 

Money laundering evidence sufficient to support conviction. State v. Casey, et. al., 81 Wn. App. 524 (Div. I, 1996) - Oct ‘96:17
 
 

"Money laundering" statute does not require proof that financial transaction was conducted with intent to conceal the illegality. State v. McCarty, 90 Wn. App. 195 (Div. II, 1998) - May 98:18
 
 
 


MURDER (Chapter 9A.32 RCW) AND OTHER CRIMINAL HOMICIDES  
 

Victim of assault can't be "participant" under felony-murder rule. State v. Goodrich, 72 Wn. App. 71 (Div. I, 1993) Aug. '95:23
 
 

No constitutional right to die; assisted suicide laws upheld. State of Washington v. Glucksberg, 138 L.Ed. 2d 772 (1997) - Aug ’97:11
 
 


MUTUAL AID PEACE OFFICER POWERS ACT (Chapter 10.93 RCW)
 
  Consent letter justifies extra-territorial investigation, arrest; if consent authority present, then no requirement that police show "necessity" for the extra-territorial action. State v. Rasmussen, 70 Wn. App. 853 (Div. I, 1993) April '94:12
 
 

Sheriff’s agreement re task force gives task force authority to electronically intercept throughout county; but, based on limiting interpretation of chapter 9.73 RCW, Court of Appeals holds that non-task force member cannot authorize interception outside employer’s territory; other 9.73 issues -- preservation of tape, post-recording review -- addressed. State. v. Knight, 79 Wn. App. 670 (Div. II, 1996) - April ‘96:07
 
 


NECESSITY DEFENSE
 
  Common law "medical necessity" defense addressed in marijuana grow case. State v. Cole, 74 Wn. App. 571 (Div. II, 1994) April '95:20
 
 

"Necessity" can be defense for felon possessing gun, but not if possession begins before necessity arises and continues until need arises. State v. Jeffrey, 77 Wn. App. 222 (Div. III, 1995) Oct. '95:06
 
 

"Felony eluding" doesn't include "intent"; also, "necessity" no defense to this crime. State v. Gallegos, 73 Wn. App. 644 (Div. I, 1994) Oct. '95:18
 
 

"Medical necessity" defense addressed in marijuana grow case. State v. Pittman, 88 Wn. App. 188 (Div. I, 1997) - April 98:19
 
 

"Necessity" is a limited defense to charge for "unlawful possession of a firearm." State v. Stockton, 91 Wn. App. 35 (Div. I, 1998) - Nov 98:09
 
 
 


OBSTRUCTING (RCW 9A.76.020) AND RELATED CRIMES >

Transfer interrupted!

e="Arial,Helvetica">Off-duty officers have "public servant" status under former "obstructing" statute. State v. Graham, 80 Wn. App. 137 (Div. I, 1995) - March ‘96:20 [Affirmed by State Supreme Court – see below.]
 
 

Off-duty police officers working private security became "public servants" and "peace officers" performing "official duties" when they investigated drug crime; obstructing, resisting convictions upheld. State v. Graham, 130 Wn.2d 711(1996) - Feb ’97:06
 
 

Lie told to police officer is not "obstructing", but it is "providing a false or misleading statement to a public servant" under RCW 9A.76.175. State v. Williamson, 84 Wn. App. 37 (Div. II, 1996) - April ’97:19
 
 

Car passenger who disobeyed order to get back in car lawfully arrested for obstructing. State v. Mendez, 88 Wn. App. 785 (Div. III, 1997) - Feb 98:03 [State Supreme Court reversed on grounds of illegal seizure. See March 99 LED.
 


PLEA BARGAINING
 
  Police lack independent authority to make agreement not to prosecute. State v. Reed, 75 Wn. App. 742 (Div. I, 1994) March '95:17
POLYGRAPH No unstipulated evidence of polygraph of defendant, even in relation to child hearsay admissibility question. State v. Gregory, 80 Wn. App. 516 (Div. I, 1996) - Aug ‘96:22
PUBLIC RECORDS, ACCESS TO COURT RECORDS AND PROCEEDINGS
 
  Public employee performance evaluations not subject to disclosure under public disclosure act. Brown v. Seattle Public Schools, 71 Wn. App. 613 (Div. I, 1993) March '94:17
 
 

PUD employee's information disclosure ok. State v. Maxfield, 125 Wn.2d 378 (1994) Feb. '95:02 [The State Supreme Court later reversed itself – see below.]
 
 

Ruse to get resident to open door lawful -- reasonable suspicion not required; also, RCW 42.17.314 not applicable to requests made to non-government utilities. State v. Weller, 76 Wn. App. 165 (Div. III, 1994) April '95:11
 
 

No constitutional error in excluding public from CrR 3.5 hearing. State v. Boneclub, 76 Wn. App. 872 (Div. I, 1995) Aug. '95:22 [Reversed by State Supreme Court – see below]
 
 

UCSA forfeiture of proceeds not subject to double jeopardy restriction; also, PC-to-search and power-records-access issues resolved for state. State v. Cole, 128 Wn.2d 262 (1995) - Feb ‘96:02
 
 

Trial court decision to close pretrial suppression hearing must meet specific standards. State v. Bone-Club, 128 Wn.2d 254 (1995) - March ‘96:08
 
 

No closure of juvenile declination hearing without specific finding re right to fair trial. State v. Loukaitis, 82 Wn. App. 460 (Div. III, 1996) - Nov ‘96:19
 
 

Electrical usage information and its fruits must be suppressed where PUD employee, on his own, provides such information to law enforcement. In re Maxfield, 133 Wn.2d 332 (1997) - Dec 97:16
 
 

Public records law: "investigative records" exception exempts active law enforcement investigation files in their entirety. Newman v. King County, 133 Wn.2d 565 (1997) - Jan 98:07
 
 

No attorney fees recoverable from agency in the middle under Public Records Act. Confederated Tribes, et. al. v. Johnson, 135 Wn.2d 734 (1998) - Oct 98:11
 
 
 


RAPE AND OTHER SEX OFFENSES (Primarily Chapter 9A.44 RCW) (See also "Sexual Exploitation of Children")  
 

Lips not an "intimate part" for purposes of indecent liberties prosecution. State v. R.P., 122 Wn.2d 735 (1993) - Feb. '94:10
 
 

"Mental incapacity" under rape statute means lack of meaningful understanding of nature or consequences of sexual intercourse. State v. Ortega-Martinez, 124 Wn.2d 702 (1994) March '95:04
 
 

Locked bedroom in single-family house not a separate unit of "building" for purposes of first degree rape law, so no "felonious entry" (i.e., burglarious entry) proven. State v. Thomson, 71 Wn. App. 634 (Div. II, 1993) June '95:20
 
 

Child molesting statute's "intimate parts," "purpose of sexual gratification" elements addressed in touch-through-clothing case; conviction can e supported in some touch-through-clothing circumstances. State v. Veliz, 76 Wn. App. 775 (Div. III, 1995) Aug. '95:20
 
 

Rape One: mere presence of gun not "use" or "threat to use" gun. State v. Bright, 77 Wn. App. 304 (Div. III, 1995) Sept. '95:18 [Reversed by State Supreme Court – see below.]
 
 

State need not always present expert testimony to prove that a Rape 2 victim lacked mental capacity to consent to sexual intercourse. State v. Summers, 70 Wn. App. 424 (Div. I, 1993) Oct. '95:20
 
 

No mental state element for any variation of "rape" offenses; hence, voluntary intoxication no defense to second degree rape charge. State v. Brown, 78 Wn. App. 891 (Div. II, 1995) - April ‘96:21
 
 

Attempted rape of a child may be prosecuted despite lack of mental state element in crime. State v. Chhom, 128 Wn.2d 739 (1996) - August ‘96:16
 
 

Officer’s possession of firearms implies threat to use them in rape circumstance. State v. Bright, 129 Wn.2d 211 (1996) - Sept ‘96:03
 
 

Forcibly entering would-be rape victim’s car not "felonious" mv entry. State v. Maganai, 83 Wn. App. 735 (Div. II, 1996) - March ’97:21
 
 
 


RENDERING CRIMINAL ASSISTANCE (Chapter 9A.76 RCW)  
 

Corpus delicti rule for rendering criminal assistance in concealing murder – there must be evidence that someone other than murderer assisted in hiding the body. Such evidence was established in this case through witness testimony and circumstance of concealment. State v. Dodgen, 81 Wn. App. 487 (Div. I, 1996) - Nov ‘96:16
 
 
 


RESTITUTION Restitution order following negligent driving conviction lawful, even though insurance payments also had compensated accident victim. State v. Shannahan, 69 Wn. App. 512 (1993) May '94:19

Juvenile court may order restitution by defendant for damages caused by his co-participant in juvenile offense. State v. Hunotte, 69 Wn. App. 670 (Div. II, 1993) May '94:20

Embezzler must pay employer's cost of reviewing business records where review necessary to investigate the embezzlement. State v. Johnson, 69 Wn. App. 189 (Div. I, 1993) May '94:20

Restitution must be ordered by court within 60 days of sentencing. State v. Krall, 125 Wn.2d 146 (1994) Feb. '95:10

Insurance company entitled to restitution from juvenile offender. State v. Sanchez, 73 Wn. App. 486 (Div. III, 1994) Oct. '95:15

Restitution for lost wages only if loss due to victim's physical injury; victim cannot recover for lost work due to time taken to repair and re-secure burglarized home. State v. Hefa, 73 Wn. App. 865 (Div. I, 1994) Oct. '95:15

Destruction of arson evidence by third party does not implicate "due process" protections; but insurance company loses on restitution issue. State v. Martinez, 78 Wn. App. 870 (Div. II, 1995) - April ‘96:21

Restitution to county sheriff’s office awarded in killing of police dog. State v. Kisor, 82 Wn. App. 175 (Div. II, 1996) - Sept ‘96:16


ROBBERY (Chapter 9A.56 RCW)
 
  Only one robbery count was justified for taking at cash register, although two restaurant employees were at the cash register. State v. Molina, 83 Wn. App. 144 (Div. I, 1996) - May ’97:15
SEARCH AND SEIZURE
 
 
Abandoned property
 
  Purse left in store not "abandoned", but search for identification to determine owner OK as community caretaking action. State v. Kealey, 80 Wn. App. 162 (Div. II, 1995) - May ‘96:05
Administrative Search Warrants
 
  Administrative search warrants or other search warrants based on less than probable cause cannot be issued by courts absent express statutory authorization; municipal court lacks authority to issue housing inspection warrants. City of Seattle v. McCready, 123 Wn.2d 260 (1994) May '94:03
 
 

Challenge to City of Seattle's residential housing inspection program raises administrative search warrant issues. Seattle v. McReady, 124 Wn.2d 300 (1994) Feb. '95:09
 
 


Anticipatory Search Warrants
 
  Probable cause lacking; anticipatory warrant question discussed. State v. Gonzalez, 77 Wn. App. 479 (Div. III, 1995) Aug. '95:16
 
 

Anticipatory search warrant lawful where affidavit shows "sure course". U.S. v. Ruddell, 71 F.3d 331 (9th Cir. 1995) - May ‘96:16
 
 

Anticipatory warrant struck down – no "sure course" to search site. State v. Goble, 88 Wn. App. 503 (Div. II, 1997) - Jan 98:15
 
 


Bank Records Search Under Warrant
  Execution of warrant for bank records without notice to suspect lawful. State v. Kern, 81 Wn. App. 308 (Div. I, 1996) - Oct ‘96:12
Blood Samples -- Obtaining With or Without Search Warrant
  Blood sample may be obtained with search warrant in non-exigent circumstances; no adversarial hearing required. State v. Kalakosky, 121 Wn.2d 525 (1993) Feb. '94:12

Consent to blood test by vehicular homicide suspect not under arrest invalidated based on lack of prior warnings re right to additional test. State v. Rivard, 80 Wn. App. 633 (Div. III, 1996) - Sept ‘96:14 [Reversed by State Supreme Court – see next entry.]

Where driver not under arrest following mva, police may lawfully request driver’s consent to blood test without implied consent warnings. State v. Rivard, 131 Wn.2d 63 (1997) - April ’97:09
 
 


Commissioners Issuing Search Warrants
 
  Superior Court Commissioners have authority to issue search warrants. State v. Goss, 78 Wn. App. 58 (Div. II, 1995) Nov. '95:18
Community Caretaking Function Exception
 
  Purse left in store not "abandoned", but search for identification to determine ownership as community caretaking action OK. State v. Kealey, 80 Wn. App. 162 (Div. II, 1995) - May ‘96:05
 
 

Search of just-prowled vehicle ok as community caretaking search; also, no double jeopardy problem in civil forfeiture, criminal conviction. State v. Lynch, 84 Wn. App. 467 (Div. III, 1997) - May ’97:08
 
 

Taking dui arrestee to his home and forcibly entering his residence was a privacy violation, not part of a community caretaking function. State v. Dykstra, 84 Wn. App. 186 (Div. II, 1996) - June ’97:17
 
 


Computer Searches
 
  NOTE: Federal agencies develop guidelines on searching, seizing computers. April '95:12
Consent Search Exception
 
  All-party-consent-to-search rule of Leach not applicable to motor vehicles. State v. Cantrell, 124 Wn.2d 183 (1994) Sept. '94:05
 
 

Challenge to City of Seattle's residential housing inspection program raises consent search issues (tenants can consent to searches of common areas of rental property.) Seattle v. McReady, 124 Wn.2d 300 (1994) Feb. '95:09
 
 

Landlord's consent to search tenant’s property invalid. State v. Rose, 75 Wn. App. 28 (Div. I, 1994) March '95:07
 
 

For officer-safety reasons, officers may temporarily seize weapons during consent search even if scope of consent doesn't include weapons. State v. Cotten, 75 Wn. App. 669 (Div. II, 1994) May '95:15
 
 

Emergency justifies entry of unresponsive drugger’s motel room; consent scope not exceeded in video review; no double jeopardy violation. State v. Davis, 86 Wn. App. 414 (Div. II, 1997) - Sept ’97:08
 
 

Hallucinating person held unable to give consent to search her purse. State v. Sondergaard, 86 Wn. App. 656 (Div. I, 1997) - Oct ’97:20
 
 

Leach rule of all-parties-present consent applied to void search of home as to both nonconsenting cohabitant and consenting cohabitant. State v. Walker(s), 86 Wn. App. 857 (Div. II, 1997) - Nov ’97:10 [The State Supreme Court reversed this decision in regard to use of evidence against the consenting cohabitant. See Jan 99:03.]
 
 

Knock-and-talk at residence requires special consent warnings. State v. Ferrier, 136 Wn.2d 103 (1998) - Oct 98:02; State v. Ferrier Revisited. Nov 98:20
 
 


"Criminal Search" Statute (RCW 10.79.040 - 045)
 
  Criminal statutes on warrantless police searches interpreted as allowing for constitutional exceptions to warrant requirement but as not requiring proof of bad faith or any other mental state on the officer’s part. State v. Groom, 133 Wn.2d 679 (1997) - Jan 98:06
Entry Of Private Premises To Arrest
 
  Unenclosed front porch not private area under Payton's entry-to-arrest rule. State v. Solberg, 122 Wn.2d 688 (1993) Jan. '94:03
 
 

Warrantless look into toilet stall ok if PC to: (1) arrest & (2) believe suspect inside; also, inevitable discovery rule supports evidence admission. State v. White, 76 Wn. App. 801 (Div. I, 1995) June '95:09 [Affirmed by State Supreme Court – see below.]
 
 

Warrantless arrest from public toilet does not violate Payton rule. State v. White, 129 Wn.2d 105 (1996) - July ‘96:15
 
 


Exclusionary Rule (See also "Standing" under SEARCH AND SEIZURE sub topic)
 
  Affiant’s omissions from warrant affidavit not shown to be deliberate or reckless, so no Exclusionary Rule consequences. State v. Clark, 68 Wn. App. 592 (Div. II, 1993) Sept. '94:17
 
 

No "reckless omission" from warrant affidavit in officer-affiant's failure to note CI's drug addiction, criminal record, grudge against suspect, and relationship to suspect; also, "intent to deliver" evidence sufficient. State v. Taylor, 74 Wn. App. 111 (Div. I, 1994) May '95:18
 
 

"Inevitable discovery" rule passes state constitutional test. State v. Richman, 85 Wn. App. 568 (Div. I, 1997) - Sept ’97:19, Oct ’97:19 [See also State v. White, 76 Wn. App. 801 (Div. I, 1995) June 95:09 "inevitable discovery" discussion.]
 
 

No "automatic standing" under either state or federal constitution to request exclusionary rule remedy for unlawful search or seizure. State v. Carter, 74 Wn. App. 320 (Div. I, 1994) June '95:17 [On further review, State Supreme Court apparently retains automatic standing rule – see below]
 
 

PC to arrest, search MV for rape evidence established; also, defendant’s claim of officer affiant’s deliberate or reckless omission of information from warrant affidavit not proven. State v. Herzog, 73 Wn. App. 34 (Div. II, 1994) Sept. '95:07
 
 

No justification for coyote-keeper's assault on wildlife officers even though they may have unlawfully entered his yard, so no exclusion of evidence re: attacks – assault conviction upheld. State v. Mierz, 127 Wn.2d 460 (1995) Nov. '95:06
 
 

"Automatic standing" still alive under Washington’s exclusionary rule. State v. Carter, 127 Wn.2d 836 (1995) - Jan ‘96:07
 
 

Citizen who pointed gun at sheriff’s surveillance helicopter not allowed to assert privacy claim: Mierz exception to exclusionary rule applied. State v. McKinlay, 87 Wn. App. 394 (Div. III, 1997) - Jan 98:19
 
 

"Automatic standing" rule applied; impoundment of suspended driver’s vehicle held improper. State v. Coss, 87 Wn. App. 891 (Div. III, 1997) - Feb 98:17
 
 

Federal exclusionary rule not applicable in parole and probation hearings; Washington State applies Exclusionary Rule in this setting. Pennsylvania Board of Probation and Parole v. Scott, 118 S. Ct. 2014 (1998) - Sept 98:04
 
 


Execution of Search Warrants
 
  Second frisk of person at scene of narcotics warrant execution held unreasonable. State v. Galbert, 70 Wn. App. 721 (Div. I, 1993) March '94:17
 
 

10-day execution rule of Thomas applies to both district court and superior court search warrants. State v. Wallway, 72 Wn. App. 407 (Div. II, 1994) Nov. '94:09
 
 

Execution of warrant for bank records without notice to suspect lawful. State v. Kern, 81 Wn. App. 308 (Div. I, 1996) - Oct ‘96:12
 
 

Exigent Circumstances (And Emergencies)
 
  Camper in tent lawfully on campsite at state park has reasonable expectation of privacy when inside closed tent; no exigency for entry. U.S. v. Gooch, 6 F.3d 673 (9th Cir. 1993) Feb. '94:02
 
 

Emergency exception permits warrantless search of residence; housemate murderer has no standing to challenge search of victim's separate bedroom. State v. Gocken, 71 Wn. App. 267 (Div. I, 1993) March '94:12
 
 

Emergency justifies warrantless entry in DV circumstances. State v. Menz, 75 Wn. App. 351 (Div. II, 1994) Feb. '95:17
 
 

Emergency justifies entry of unresponsive drugger’s motel room; consent scope not exceeded in video review; no double jeopardy violation. State v. Davis, 86 Wn. App. 414 (Div. II, 1997) - Sept ’97:08
 
 

Emergency justifies search of home for drugs following mom’s od. State v. Angelos, 86 Wn. App. 253 (Div. I, 1997) - Sept ’97:12
 
 

Civil commitment seizure and search justified by man’s volatile behavior. State v. Dempsey, 88 Wn. App. 918 (Div. III, 1997) - Feb 98:08
 
 


Forfeiture-Related Seizure and Search
 
  Search warrant needed to authorize delayed investigative search of vehicle seized under drug forfeiture law; also, work release search conditions expire at some point after work releasee arrested for new crime. State v. Hendrickson, 129 Wn.2d 61(1996) - July ‘96:11
Identity Of Confidential Informant (Disclosing, Protecting)
 
  Court dismisses drug charge based on state's refusal to identify Confidential Informant. State v. Petrina, 73 Wn. App. 779 (Div. II, 1994) Oct. '95:16
Impound-Inventory Exception (Vehicles)
 
  Houser rule requiring "manifest necessity" for inventory searches of mv trunks not applicable where mv has trunk release button in interior. State v. (Ron) White, 83 Wn. App. 770 (Div. I, 1996) - Jan ’97:15 [Reversed by State Supreme Court – see below.]
 
 

"Automatic standing" rule applied; impoundment of suspended driver’s vehicle held improper. State v. Coss, 87 Wn. App. 891 (Div. III, 1997) - Feb 98:17
 
 

Houser’s "manifest necessity" rule for locked trunk checks in impound inventories is confirmed in "independent grounds" reading of article 1, section 7 of Washington constitution. State v. White, 135 Wn.2d 761 (1998) - Sept 98:08; State v. White Revisited. Nov 98:20
 
 


Incident to Arrest (Motor Vehicle)
 
  Truck's accessible living area is subject to search incident to arrest. State v. Johnson, 77 Wn. App. 441 (Div. II, 1995) Aug. '95:12 [Affirmed by State Supreme Court – see below.]
 
 

Folding down car’s back seat does not convert passenger space to "trunk" for purposes of Stroud "search incident to arrest" rule. State v. Davis, 79 Wn. App. 355 (Div. I, 1995) - Feb ‘96:19
 
 

Truck cab’s sleeping area within Stroud "search incident" scope. State v. Johnson, 128 Wn.2d 431 (1996) - March ‘96:06
 
 

Engine compartment, like trunk area, off limits under Stroud’s search incident rule. State v. Mitzlaff, 80 Wn. App. 184 (Div. II, 1995) - March ‘96:11
 
 

Custodial arrest for negligent driving upheld on totality-of-the-circumstances test. State v. Nelson, 81 Wn. App. 249 (Div. II, 1996) - Sept ‘96:06
 
 

One-week-old information re license suspension was reasonable suspicion for stop and probable cause to arrest; however, because car was locked before "seizure", it was off limits under "search incident" rule. State v. Perea, 85 Wn. App. 339 (Div. II, 1997) - June ’97:02
 
 

Under Stroud rule, lawful arrest of car’s driver doesn’t justify "incidental" search of purse held by passenger after she got out of car. State v. Seitz, 86 Wn. App. 865 (Div. II, 1997) -Nov ’97:19
 
 

Stroud rule on search incident to arrest allows search of purse left in car by disembarking passenger; Seitz case distinguished. State v. Parker, 88 Wn. App. 273 (Div. III, 1997) - Jan 98:12 [This case and the Hunnel case referenced below are under review in the State Supreme Court]
 
 

Split of authority: does Stroud rule permit search of purse of nonarrested passenger ordered (A) to step out of MV and (B) to leave purse in MV? Divisions Two and Three of Court of Appeals say "yes," "no". State v. Nelson, 89 Wn. App. 179 (Div. III, 1997) and State v. Hunnel, 89 Wn. App. 638 (Div. II, 1998) - March 98:08
 
 

Jail policy restricting intake of certain offense categories does not affect custodial arrest authority; car "search incident" permitted. State v. Thomas, 89 Wn. App. 774 (Div. III, 1998) - April 98:05
 
 

Search of motor vehicle passenger’s purse fails "search incident" analysis; and her consent was tainted by unlawful detention by police. State v. O’Day, 91 Wn. App. 244 (Div. III, 1998) - Sept 98:15
 
 

Search can’t be justified as "incident to arrest" if the search follows an officer’s objectively manifested decision not to make a custodial arrest. State v. McKenna, 91 Wn. App. 554 (Div. II, 1998) - Oct 98:12
 
 


Incident To Arrest (Non-vehicle Search)
 
  Purse seizure based on probable cause to search it held lawful. State v. Lund, 70 Wn. App. 437 (Div. II, 1993) May '94:13
 
 

No "destruction of evidence" exception to scope limits on Terry frisk; but PC to arrest was present, and search was reasonably contemporaneous with arrest, so evidence admissible under "incident to arrest" exception. State v. Rodriguez-Torres, 77 Wn. App. 687 (Div. I, 1995) Sept. '95:15
 
 

Officers’ testimony re arrestees’ apparent levels of intoxication admissible in DUI cases; due process and search incident issues also addressed. State v. Lewellyn, 78 Wn. App. 788 (Div. III, 1995) - August ‘96:20
 
 


Jail Inventory, Jail Property Box
 
  Taking a second look at personal property previously taken from a jailed arrestee at booking -- no warrant required but PC may be required. Research note. March '94:19
 
 

Routine booking inventory search at jail following arrest upheld. State v. Smith (Ethel Mae), 76 Wn. App. 9 (Div. I, 1994) May '95:17
 
 

Check for arrest warrants during investigative contacts ok, but inventory search at jail violates bail-warrant rule of Gloria Smith. State v. Caldera, Hamilton, 84 Wn. App. 527 (Div. III, 1997) - May ’97:05
 
 

Knock And Announce (RCW 10.31.040 and Constitutional Requirements)
 
  Knock-and-announce rule doesn't require consent to police entry if they show search warrant to occupant after knocking and announcing. State v. Allredge, 73 Wn. App. 171 (Div. II, 1994) August '94:07
 
 

Knock-and-announce requirement is part of the Fourth Amendment. Wilson v. Arkansas, 131 L. Ed.2d 976 (1995) Sept. '95:03
 
 

No knock and wait required for entry into unoccupied back yard. State v. Schimpf, 82 Wn. App. 61 (Div. III, 1996) - Oct ‘96:05
 
 

No blanket rule of "no knock" entry for executing warrants to search for narcotics; case-by-case look at no-knock reasonableness required. Richards v. Wisconsin, 117 S.Ct. 1416 (1997) - Aug ’97:07
 
 

Knock-and-announce rule met: plainclothes officers with search warrant not required to wait for permission to enter following face-to-face announcement. State v. Richards, 87 Wn. App. 285 (Div. I, 1997) - Nov ’97:17 [Affirmed by State Supreme Court – see below.]
 
 

"No knock" entry permitted under "reasonable suspicion" standard, and police executing warrant may "break" to enter without additional justification. U.S. v. Ramirez, 118 S.Ct. 992 - April 98:03
 
 

"Knock and announce" rule met even though undercover officers did not wait, after announcing they were officers with a search warrant, for home occupant (who was eyeballing them through a screen door) to grant or deny permission to enter. State v. Richards, 136 Wn.2d 361 (1998) - Nov 98:03
 


National Guard Involvement In Search
 
  No violation of state law in using National Guard to help execute search warrant for narcotics. State v. Garibay, 122 Wn.2d 270 (1993) Jan. '94:07
 

Omissions From Warrant Affidavit
 
  Affiant’s omissions from warrant affidavit not shown to be deliberate or reckless, so no Exclusionary

Rule consequences. State v. Clark, 68 Wn. App. 592 (Div. II, 1993) Sept. '94:17
 
 

No "reckless omission" from warrant affidavit in officer-affiant's failure to note CI's drug addiction, criminal record, grudge against suspect, and relationship to suspect; also, "intent to deliver" evidence sufficient. State v. Taylor, 74 Wn. App. 111 (Div. I, 1994) May '95:18
 
 

PC to arrest, search MV for rape evidence established; also, defendant’s claim of officer affiant’s deliberate or reckless omission of information from warrant affidavit not proven. State v. Herzog, 73 Wn. App. 34 (Div. II, 1994) Sept. '95:07
 
 


Particularity Requirement
 
  Executing officer's personal knowledge as investigator on case cures wrong apartment number on search warrant. State v. Bohan, 72 Wn. App. 335 (Div. I, 1993) Aug. '94:05
 
 

Search of visitor's vehicle under "any vehicles on the property" provision of warrant fails Fourth Amendment probable cause/particularity test. State v. Rivera, 76 Wn. App. 519 (Div. II, 1995) April '95:05
 
 

"All persons present" warrant fails PC particularity requirement. State v. Carter, 79 Wn. App. 154 (Div. II, 1995) Nov. '95:10
 
 

Pickup truck camper search under warrant unlawful -- affidavit fails to make probable cause connection to truck; also, truck not in curtilage. State v. Graham, 78 Wn. App. 44 (Div. II, 1995) Nov. '95:15
 
 

Civil liability exposure found for searching persons under unsupported warrant authorization for searching "any persons on the premises." Marks v. Clarke, 102 F.3rd 1012 (9th Cir. 1996) - April ’97:08
 
 

Warrant "incorporating" affidavit invalid where affidavit not attached. U.S. v. McGrew, 122 F.3d 847 (9th Cir. 1997) - Jan 98:06
 
 

Warrant for "controlled substances" (rather than naming "marijuana") just passes muster in "grow op" case. State v. Chambers, 88 Wn. App. 640 (Div. II, 1997) - Jan 98:03
 
 


Plain View Doctrine/Open View Doctrine (See also "Privacy Expectations" under SEARCH AND SEIZURE sub topic)
 
  Emergency exception permits warrantless search of residence; housemate murderer has no standing to challenge search of victim's separate bedroom. Court incorrect in description of "plain view" rule. State v. Gocken, 71 Wn. App. 267 (Div. I, 1993) March '94:12
 
 

Flashlight-aided look through living room window not a search. State v. Rose, 128 Wn.2d 388 (1996) - March ‘96:02
 
 


Privacy Expectations, Scope of Constitutional Protection
 
  Status of real property from which police make their observation or seizure, not status of property crossed to get there, governs under Fourth Amendment exclusionary rule. U.S. v. Traynor, 990 F.2d 1153 (1993) Jan. '94:02
 
 

Officer needed no warrant to look inside trespasser's tent. State v. Cleator, 71 Wn. App. 217 (Div. I, 1993) Jan. '94:17
 
 

Camper in tent lawfully on campsite at state park has reasonable expectation of privacy when inside closed tent; no exigency for entry. U.S. v. Gooch, 6 F.3d 673 (9th Cir. 1993) Feb. '94:02
 
 

Use of infrared thermal detection devices is "search"; warrant required. State v. Young, 123 Wn.2d 173 (1994) April '94:02
 
 

Detective's act of listening in at tipped phone receiver not unlawful. State v. Corliss, 123 Wn.2d 656 (1994) June '94:02
 
 

"No trespassing" sign does not make unobstructed residential driveway "private". State v. Hornback, 73 Wn. App. 738 (Div. I, 1994) Oct. '94:17
 
 

Officer lawfully looked into partially open garbage can located in home's parking area open to the public. State v. Graffius, 74 Wn. App. 23 (Div. I, 1994) Oct. '94:18
 
 

Chain-link-fenced yard is within home's protected "curtilage," but officers' unlawful entry into that area doesn't justify resident's assault of officers. State v. Mierz, 72 Wn. App. 783 (Div. I, 1994) Oct. '94:19
 
 

No search violation where, during search warrant execution, officer answered phone and made "drug deal" with caller, caller had no standing to challenge action of officer. State v. Goucher, 124 Wn.2d 778 (1994) Dec. '94:14
 
 

Entry of partially shielded yard of home unlawfully invades "curtilage". State v. Hoke, 72 Wn. App. 869 (Div. I, 1994) Jan. '95:06
 
 

No privacy or curtilage violation in officers' approach of home. State v. Chaussee, 72 Wn. App. 704 (Div. III, 1994) Jan. '95:09
 
 

"Independent grounds" ruling under state constitution, article 1, section 7 -- rural barn owner had reasonable privacy expectation. State v. Johnson, 75 Wn. App. 692 (Div. II, 1994) Jan. '95:19
 
 

Officer's state of mind irrelevant to search issue where presence in curtilage lawful; also, PUD employee's information disclosure ok. State v. Maxfield, 125 Wn.2d 378 (1994) Feb. '95:02 [The State Supreme Court later "reversed" itself and suppressed the evidence in a split decision. See below re Dec 97:16.]
 
 

Landlord's consent to search invalid; also, State's claim of "open view" with flashlight fails. State v. Rose, 75 Wn. App. 28 (Div. I, 1994) March '95:07 [Reversed by the State Supreme Court – see below.]
 
 

Ruse to get resident to open door lawful without prior reasonable suspicion; also, RCW 42.17.314 not applicable to non-governmental utilities. State v. Weller, 76 Wn. App. 165 (Div. III, 1994) April '95:11
 
 

No privacy for rural homeowner based on neighbors' "no trespassing" signs; more than signs generally needed to create privacy protection. State v. Gave, 77 Wn. App. 333 (Div. II, 1995) Aug. '95:14
 
 

Random urine testing of K-12 student athletes ok under Fourth Amendment. Vernonia School District 47J v. Acton, 132 L.Ed. 2d 564 (1994) Sept. '95:03
 
 

Answering phone while executing search warrant does not violate home occupant’s statutory (9.73) or constitutional (Art. 1, Sec. 7) rights. State v. Gonzales (Hector), 78 Wn. App. 976 (Div. I, 1995) - Jan ‘96:22
 
 

UCSA forfeiture of proceeds not subject to double jeopardy restriction; also, PC-to-search and power-records-access issues resolved for State. State v. Cole, 128 Wn.2d 262 (1995) - Feb ‘96:02
 
 

Flashlight-aided look through living room window from front porch not a search. State v. Rose, 128 Wn.2d 388 (1996) - March ‘96:02
 
 

Grow operation search -- State wins on "pretext", PUD request issues; but State loses on probable cause issue. State v. Rakosky, 79 Wn. App. 229 (Div. III, 1995) - March ‘96:15
 
 

No 9.73 privacy act protection for street drug vendors. State v. Clark, 129 Wn.2d 211 - July ‘96:07
 
 

No privacy in storage facility records, but warrant to search storage locker fails PC test due to lack of informant veracity showing in affidavit. State v. Duncan, 81 Wn. App. 70 (Div. III, 1996) - Sept ‘96:11
 
 

No right of privacy in store receipts where defendants were being investigated for submitting forged store receipts to insurance company. State v. Farmer, 80 Wn. App. 795 (Div. I, 1996) - Sept ‘96:17
 
 

Possible constitutional recognition for public disclosure act provision for requesting public utility records is discussed, but not resolved; however, RCW 42.17.314 construed as barring PUD employee from acting on his own to provide usage information to police. In re Maxfield(s), 133 Wn.2d 332 (1997) - Dec ’97:16
 
 

State constitution requires search warrant to use dog to sniff for drugs at residence even though no warrant required for package sniffs. State v. Dearman, 92 Wn. App. 630 (Div. I, 1998) - Nov 98:06 [The prosecutor requested review by the State Supreme Court, which set the matter on the motion calendar for April 6, 1999.]
 
 


Private Citizen Search
 
  Interception of Federal Express package for drug-sniffing dog’s check OK where based on confidential informant’s report of "crank" shipment. State v. Jackson, 82 Wn. App. 594 (Div. II, 1996) - Nov ‘96:02
 
 

Article 1, Section 7 of Washington Constitution does not limit private searches. Personal Restraint of Maxfield, 81 Wn. App. 705 (Div. II, 1996) - Nov ‘96:17 [But SEE State Supreme Court DECISION AT 113 Wn. 2d 332 (1997) Dec 97:16 holding that RCW 42.17.214 requires suppression based on PUD employee’s actions; even where PUD employee acts on his own to provide electrical usage information, the statute requires suppression of the information and its fruits.]
 
 


Probable Cause (See also "Anticipatory Search Warrants")
 
  Corroboration by police remedies failure of confidential informant to fully satisfy Aguilar-Spinelli two-pronged test for probable cause. State v. Kennedy, 72 Wn. App. 244 (Div. II, 1994) Oct. '94:07
 
 

PC established to search for murder weapon in suspect's premises. State v. Condon, 72 Wn. App. 638 (Div. I, 1993) Jan. '95:12
 
 

Mere fact of sale of 1/8 ounce of coke at residence not PC to search it for more drugs. State v. Sanchez, 74 Wn. App. 763 (Div. III, 1994) Jan. '95:15
 
 

Warrant affidavit's description of reliability of detective's sense of smell sufficient; no reckless misstatement made regarding power consumption. State v. Olson, 74 Wn. App. 126 (Div. I, 1994) Jan. '95:17
 
 

Terry/Summers question, K9-based PC issue addressed -- State prevails. State v. Flores-Moreno, 72 Wn. App. 733 (Div. II, 1994) Feb. '95:10
 
 

Fact that drugs were discovered at Seattle post office addressed to suspect’s Alaska address in a package using a Federal Way return address is not probable cause to search addressee's Winlock residence. State v. Dalton, 73 Wn. App. 132 (Div. II, 1994) Feb. '95:13
 
 

No PC on landlord’s bare statement that he believed he smelled growing marijuana. State v. Rose, 75 Wn. App. 28 (Div. I, 1994) March '95:07
 
 

Probable cause (PC) that person is growing marijuana in a house at another location is not necessarily PC to search residence. State v. Olson, 73 Wn. App. 348 (Div. II, 1994) March '95:15
 
 

Search warrant affidavit describing citizen's observation of marijuana grow establishes basis of information under Aguilar-Spinelli PC rule. State v. Creelman, 75 Wn. App. 490 (Div. I, 1994) April '95:08
 
 

Probable cause lacking; anticipatory warrant question discussed. State v. Gonzalez, 77 Wn. App. 479 (Div. III, 1995) Aug. '95:16
 
 

PC to arrest, search MV for rape evidence established; also, claim of deliberate or reckless omission from warrant affidavit not proven. State v. Herzog, 73 Wn. App. 34 (Div. II, 1994) Sept. '95:07
 
 

PC nexus established to search marijuana grower's permanent residence. State v. O'Neill, 74 Wn. App. 820 (Div. I, 1994) Sept. '95:17
 
 

K-9 sniff of vehicle and other evidence establishes probable cause justifying seizure and forfeiture of vehicle under RCW 69.50.505. Adams County v. 1978 Blue Ford Bronco, 74 Wn. App. 702 (Div. III, 1994) Oct. '95:16
 
 

Pickup truck camper search under warrant unlawful -- affidavit fails to make probable cause connection to truck; also, truck not in curtilage. State v. Graham, 78 Wn. App. 44 (Div. II, 1995) Nov. '95:15
 
 

UCSA forfeiture of proceeds not subject to double jeopardy restriction; also, PC-To-Search and power-records-access issues resolved for State. State v. Cole, 128 Wn.2d 262 (1995) - Feb ‘96:02
 
 

Grow op search -- State wins on "pretext", PUD request issues; but State loses on probable cause issue. State v. Rakosky, 79 Wn. App. 229 (Div. III, 1995) - March ‘96:15
 
 

Officers’ odor information in search warrant affidavit establishes PC for "grow" search warrant. State v. Johnson, 79 Wn. App. 776 (Div. II, 1995) - March ‘96:17
 
 

No privacy in storage facility records, but warrant to search storage locker fails PC test due to lack of informant veracity showing in affidavit. State v. Duncan, 81 Wn. App. 70 (Div. III, 1996) - Sept ‘96:11
 
 

Civil liability exposure for searching persons under unsupported warrant authorization for searching "any persons on the premises." Marks v. Clarke, 102 F.3rd 1012 (9th Cir. 1996) - April ’97:08
 
 

Affidavit fails to link property to meth lab activity, so warrant fails. State v. Gebaroff, 87 Wn. App. 11 (Div. II, 1997) - Nov ’97:20
 
 

Anticipatory warrant struck down – no "sure course" to search site. State v. Goble, 88 Wn. App. 503 (Div. II, 1997) - Jan 98:15
 
 


Scope Of Search Authorization Under Warrant
 
  Search of pants before giving them to naked bedroom occupant covered by search warrant. State v. Hill, 123 Wn.2d 641 (1994) June '94:04
 
 

Search of visitor's vehicle under "any vehicles on the property" provision of warrant fails Fourth Amendment probable cause/particularity test. State v. Rivera, 76 Wn. App. 519 (Div. II, 1995) April '95:05
 
 

Pickup truck camper search under warrant unlawful -- affidavit fails to make probable cause connection to truck; also, truck not in curtilage. State v. Graham, 78 Wn. App. 44 (Div. II, 1995) Nov. '95:15
 
 

Allowable scope of warrant search defined by combined effect of -- (a) affidavit and (b) search warrant -- where they are physically attached and where warrant expressly incorporates affidavit by reference. State v. Stenson, 132 Wn.2d 668 (1997) - Oct ’97:08
 
 
 


Seizing Personal Property Based On Probable Cause While Search Warrant Sought  
 

Interception of Federal Express package for drug-sniffing dog’s check OK where based on confidential informant’s report of "crank" shipment. State v. Jackson, 82 Wn. App. 594 (Div. II, 1996) - Nov ‘96:02
 


Standing
 
  Emergency exception permits warrantless search of residence; housemate murderer has no standing to challenge search of victim's separate bedroom. State v. Gocken, 71 Wn. App. 267 (Div. I, 1993) March '94:12
 
 

No search violation where, during search warrant execution, officer answered phone and made "drug deal" with caller; caller lacked standing to challenge officer’s action of answering phone. State v. Goucher, 124 Wn.2d 778 (1994) Dec. '94:14
 
 

"Automatic standing" still alive under Washington’s exclusionary rule. State v. Carter, 127 Wn.2d 836 (1995) - Jan ‘96:07
 
 

"Automatic standing" issue under state constitution not clarified. State v. Boot, 81 Wn. App. 546 (Div. III, 1996) - Nov ‘96:09
 
 

"Automatic standing" rule applied; impoundment of suspended driver’s vehicle held improper. State v. Coss, 87 Wn. App. 891 (Div. III, 1997) - Feb 98:17
 
 

Arsonist loses on issues of standing, chain-of-custody, and corpus delicti. State v. Picard, 90 Wn. App. 890 (Div. II, 1998) - Dec 98:15
 
 


Strip Searches
 
  Removal of tube protruding from drug arrestee's anus is lawful "strip search" under Chapter 10.79 RCW, not unlawful "body cavity" search. State v. Jones, 76 Wn. App. 592 (Div. I, 1995) June '95:12
 
 

Strip search statute's provision for "reasonable suspicion" jail intake searches on written authorization survives constitutional attack. State v. Audley, 77 Wn. App. 897 (Div. I, 1995) Sept. '95:11
 
 


Telephonic Warrants
 
  Where telephonic search warrant recording fails, reconstruction of affidavit depends on judge’s memory, not officer’s memory. State v. Smith, (Thomas Whitcomb), 87 Wn. App. 254 (Div. I, 1997) - Nov ’97:14 Work Releasee Searches
 
  Search warrant needed to authorize delayed investigative search of vehicle seized under drug forfeiture law; also, work release search conditions expire at some point after work releasee arrested for new crime. State v. Hendrickson, 129 Wn.2d 61(1996) - July ‘96:11

SECURITIES FRAUD  
 

Securities fraud law interpreted; also, "lulling" rule for fraud limitations period applied. State v. Argo, 81 Wn. App. 552 (Div. I, 1996) - Oct ‘96:15
 
 
 


SELF DEFENSE/DEFENSE OF OTHERS  
 

Defendants entitled to "no duty to retreat" instruction in street fight assault prosecution. State v. Williams, 81 Wn. App. 738 (Div. I, 1996) - Nov ‘96:20
 
 

"No duty to retreat" instruction required despite facts suggesting that defendant may have been initial aggressor in fatal fight. State v. Wooten, 87 Wn. App. 821 (Div. I, 1997) - Feb 98:14
 
 


SENTENCING (See also "Restitution")
 
  Revocation of deferred prosecution on DUI No. 1 mandatory automatically upon conviction of DUI No. 2, even if appeal has been filed on DUI No. 2. State v. Kuhn, 74 Wn. App. 787 (Div. II, 1994) Sept. '95:12
 
 

Lack of prior police contacts not a mitigating factor for SRA sentencing. State v. Freitag, 127 Wn.2d 141 (1995) Oct. '95:04
 
 

UCSA "school zone" law applies even if school is located on third floor of urban building, and therefore has no playground or landscaping. State v. Shannon, 77 Wn. App. 379 (Div. I, 1995) Oct. '95:10 [But see State Supreme Court decision in State v. Becker, 132 Wn.2d 54 (1997) Nov 97:05]
 
 

Where misdemeanor sentence to run consecutively to felony sentence, misdemeanor time served in county jail. State v. Besio, 80 Wn. App. 426 (Div. I, 1995) - August ‘96:22
 
 

"Three strikes and you’re out" law gets constitutional walk. State v. Thorne, State v. Manussier, and State v. Rivers, 129 Wn.2d 736, 129 Wn.2d 652, 129 Wn.2d 697 (1996) - Oct ‘96:04
 
 

Marijuana grower must pay restitution for damage to rental house. State v. Coe, 86 Wn. App. 84 (Div. II, 1997) - March 98:16
 
 

No restitution for vehicle damage in hit-and-run case. Walla Walla v. Ashby, 90 Wn. App. 560 (Div. III, 1998) - May 98:17
 
 

Prior military courts-martial count as convictions under Washington sentencing law, including its persistent offender "three-strikes" and "two-strikes" provisions. State v. Morley, 134 Wn.2d 588 (1998) - July 98:23
 
 

Selling illegal drugs to two buyers in sequence, but at same time and place, is only one crime for sentencing purposes. State v. Williams, 135 Wn.2d 365 (1998) - Sept 98:14
 
 

Former sentencing law did not apply deadly weapon enhancements consecutively. Post Sentencing Review of Guy L. Charles, 135 Wn.2d 239 (1998) - Oct 98:11
 
 

Theft of multiple guns one offense under former sentencing law. State v. Roose, 90 Wn. App. 513 (Div. III, 1998) - Nov 98:11
 
 

No ex post facto problem with applying "three strikes" law to convictions for offenses which occurred before effective date of law. State v. Angehrn, 90 Wn. App. 339 (Div. I, 1998) - Nov 98:12
 
 

No constitutional problem in applying amended law to consider prior deferred dui prosecution as prior offense for sentencing purposes. City of Richland v. Michel, 89 Wn. App. 764 (Div. III, 1998) - Nov 98:12
 
 

Restitution order went too far in requiring possessor of stolen car to pay for personal property that was in car when it was stolen. State v. Woods, 90 Wn. App. 904 (Div. II, 1998) - Nov 98:15
 
 

PUD park is "public park" for purposes of UCSA enhanced sentencing. State v. Gordon, 91 Wn. App. 415 (Div. III, 1998) - Nov 98:19
 


SEPARATION OF POWERS
 
  Coroner's inquest statute and implementing King County order upheld. Carrick v. Locke, 125 Wn.2d 129 (1994) Feb. '95:10
SEX OFFENDER REGISTRATION, RELEASE NOTIFICATION
 
  Juvenile sex offenders must register, continue to do so after adulthood. State v. Acheson, 75 Wn. App. 51 (Div. II, 1994) Nov. '95:19
 
 

Under former statute, juvenile offense adjudication as "felony with sexual motivation" didn't require that juvenile register as sex offender. State v. S.M.H., 76 Wn. App. 550 (Div. I, 1995) Oct. '95:10
 
 

Sex offender registration, notification provisions of washington’s version of "megan’s law" survives constitutional challenge. Russell v. Gregoire, 124 F.3d 1079 (1997) - Nov ’97:04
 


SEX PREDATOR LAW
 
  Sexual predator law ruled unconstitutional; State appeals. Young v. Weston, Case 898 F. Supp. 744 (U.S.D.C. W. Wash. 1995. Oct. '95:22 [This decision was impliedly overruled by the U.S. Supreme Court decision in Kansas v. Hendricks – see below.]
 
 

Kansas civil commitment law for sexual predators upheld. Kansas v. Hendricks, 117 S.Ct 2072 (1997) - Aug ’97:10
 
 

Constitutional challenge to sex predator law ruled premature. McClatchey v. State, 133 Wn.2d 1 (1997) - Oct ’97:12
 
 
 


SEXUAL EXPLOITATION OF CHILDREN (Chapter 9.68A RCW)  
 

"Sexual exploitation" evidence sufficient because "posing" occurred. State v. Myers, 82 Wn. App. 435 (Div. II, 1995) - Oct ‘96:14
 
 

"Sexual exploitation" crime requires proof of defendant’s inducement of minor’s sexual conduct: Hidden camera act did not constitute sexual exploitation. State v. Chester, 82 Wn. App. 422 (Div. II, 1996) - Oct ‘96:15
 
 

"Sexual exploitation of minor" provision in chapter 9.68A RCW does not include secretly videotaping a minor taking a bath. State v. Grannis, 84 Wn. App. 546 (Div. II, 1997) - July ’97:18
 
 

Law on "sexual exploitation of a minor" held constitutional but gets narrow reading in hidden camera case. State v. Myers, 133 Wn.2d 26 (1997) and State v. Chester, 133 Wn.2d 15 (1997) - Oct ’97:06 [The 1998 Washington Legislature created the new crime of voyeurism at RCW 9A.44.115 in response to these cases.]
 
 
 


SIXTH AMENDMENT AND RELATED STATE LAW PROVISIONS (See also "Interrogations and Confessions")  
 

Violation of Sixth Amendment "initiation of contact" rule requires suppression of statement, even though detective was not aware of defendant’s earlier court appearance triggering the Sixth Amendment bar. State v. Valdez, 82 Wn. App. 294 (Div. III, 1996) - Oct ‘96:04
 
 

Right to counsel under crr 3.1: (A) was triggered by "custody" and (B) was violated; no prejudice found in violation, however. State v. Copeland, 130 Wn.2d 244 (1996) - Jan ’97:03
 
 

Sixth Amendment rule regarding post-charge, pre-appearance waiver of rights does not require that defendant first be advised of existence of pending charges. State v. Medlock, 86 Wn. App. 89 (Div. III, 1997) - Aug ’97:21
 
 

CrR 3.1 (c)(2) requires that officer help with attorney contact when suspect ends interrogation with attorney request. State v. Kirkpatrick, 89 Wn. App. 407 (Div. II, 1997) - March 98:12
 
 

Inmate "snitch" not government agent for Sixth Amendment purposes. In Re Personal Restraint Petition of Benn, 134 Wn.2d 868 (1998) - July 98:19
 
 

Washington statute allowing some child witnesses to testify by closed circuit TV upheld in close decision. State v. Foster, 135 Wn.2d 441 (1998) - Oct 98:12
 
 


SPEEDY TRIAL/SPEEDY ARRAIGNMENT
 
  "Speedy trial" rule of subsection (g)(6) of CrR 3.3 mandates "due diligence" by state to obtain presence for trial of defendant incarcerated by federal government or other state. State v.Anderson, 121 Wn.2d 852 (1993) Jan. '94:07
 
 

Speedy trial rule of CrR 3.3/Striker -- "due diligence" of state, or lack thereof, irrelevant when delay between charge-filing and arraignment is fault of defendant. State v. Bryant, 74 Wn. App. 301 (Div. I, 1994) Nov. '94:06
 
 

CrR 3.3/Striker speedy trial rule's "due diligence" requirement met with mailing of notice of arraignment. State v. Hunsaker, 74 Wn. App. 209 (Div. I, 1994) Nov. '94:11
 
 

Mailing of arraignment notice establishes rebuttable presumption of notice under speedy trial rule of CrR 3.3/Striker. State v. Kitchen, 75 Wn. App. 295 (Div. I, 1994) Nov. '94:12
 
 

Speedy trial rule of CrR 3.3/Striker not satisfied where summons sent by certified letter and letter returned unclaimed. State v. Williams, 74 Wn. App. 600 (Div. I, 1994) Nov. '94:13
 
 

Constitutional speedy trial requirement not violated where out-of-state prisoner not transported for trial for several years. State v. Davis, 69 Wn. App. 634 (Div. I, 1993) Nov. '94:14
 
 

State prisoner's written request to warden that county prosecutor proceed on pending information for different crime triggers special 120-day "speedy trial" rule under RCW 9.98.010. State v. Morris, 74 Wn. App. 293 (Div. III, 1994) Nov. '94:16
 
 

"Speedy trial" clock starts with citation issuance, even if citation not filed. Seattle v. Bonifacio, 127 Wn.2d 482 (1995) - Jan ‘96:07
 
 

Striker speedy trial: out-of-state defendant not amenable to process. State v. Stewart, 78 Wn. App. 931 (Div. II, 1995) - Jan ‘96:14
 
 

No Striker speedy trial problem where defendant resided in Arizona throughout pertinent time period. State v. Hudson, 79 Wn. App. 193 (Div. I, 1995) - Jan ‘96:17
 
 

Striker speedy trial rule: due diligence lacking where defendant moved back and forth between Alaska and known residence in Seattle during pertinent time period. State v. Jones, 79 Wn. App. 7 (Div. I, 1995) - Jan ‘96:17
 
 

Striker speedy trial "due diligence" failure where state didn’t follow up on unclaimed certified letter to known or probable addresses. State v. Bazan, 79 Wn. App. 723 (Div. I, 1995) - Jan ‘96:19
 
 

No violation of double jeopardy, speedy trial or due process rights where state changed DUI charge (on which Higley had received a deferred prosecution placement) to vehicular assault upon learning of extent of victim’s injuries. State v. Higley, 78 Wn. App. 172 (Div. II, 1995) - Jan ‘96:20
 
 

Striker speedy trial rule deems out-of-state person not "amenable to process". State v. Cintron-Cartegena, 79 Wn. App. 600 (Div. I, 1995) - May ‘96:15
 
 

Speedy trial: no due diligence problem if address given police is wrong. State v. Vailencour, 81 Wn. App. 372 (Div. I, 1996) - Sept ‘96:09
 
 

Striker/Greenwood "speedy trial" rule bars prosecution in welfare theft cases where DSHS, not prosecutor, notified defendants of pending charges. State v. Marler, 80 Wn. App. 765 (Div. III, 1996) - Sept ‘96:19
 
 

Striker speedy trial/speedy arraignment rule does not apply while defendant out of state unless defendant incarcerated there. State v. Hudson, 130 Wn.2d 48 (1996), State v. Cintron-Cartagena, 130 Wn.2d 48 (1996) and State v. Stewart, 130 Wn.2d 351 (1996) - Jan ’97:10
 
 

Nonincarcerated out-of-state time, and in-state time where state does not know defendant’s whereabouts, don’t count under striker speedy trial rule (CrR 3.3). State v. Monson, 84 Wn. App. 703 (Div. III, 1997) - May ’97:16
 
 

"Speedy trial" rule of CrR 3.3(g)(6) for persons incarcerated out of state -- state failed to exercise due diligence to bring defendant to trial. State v. Simon, 84 Wn. App. 460 (Div. I, 1996) - June ’97:12
 
 

Electronic home detention not "jail" time for purposes of speedy trial rule. State v. Perrett, 86 Wn. App. 312 (Div. II, 1997) - March 98:16
 
 
 


STALKING (RCW 9A.46.110)  
 

"Follows" defined for purposes of pre-1994 "Stalking" law. State v. Lee, 82 Wn. App. 298 (Div. I, 1996) - Nov ‘96:12
 
 

Stalking law held constitutional. State v. Lee, 135 Wn.2d 369 (1998) - Oct 98:11
 
 
 


STANDING (See sub topic under "Search and Seizure" topic)  
TAMPERING WITH A WITNESS (RCW 9A.72.120) Witness tampering evidence sufficient to support conviction. State v. Lubers, 81 Wn. App. 614 (Div. II, 1996) - Oct ‘96:18
THEFT AND RELATED OFFENSES (Chapter 9A.56 RCW) (See also "Robbery")  
 

"Mere presence" insufficient to support "joyriding" accomplice liability. State v. Luna, 71 Wn. App. 755 (Div. III, 1993) Feb. '95:15
 
 

"Market value" in theft case established by non-negotiable prices set by victimized store, even though neighboring store's prices were set lower. State v. Kleist, 74 Wn. App. 429 (Div. III, 1994) April '95:17 [Reversed by the State Supreme Court – see below.]
 
 

"Market value" under "theft" statute established by tags on stolen clothing setting non-negotiable prices, plus foundation testimony. State v. Rainwater, 75 Wn. App. 256 (Div. I, 1994) April '95:19
 
 

"Market value" for proof of degree of retail theft: defendant must be allowed to put on evidence regarding prices at other stores in the area at time of crime. State v. Kleist, 126 Wn.2d 432 (1995) Sept. '95:05
 
 

Theft law’s aggregation rule for "common scheme or plan" thefts requires prosecution choice -- may only charge either (1) one unified felony or (2) all gross misdemeanors separately. State v. Hoyt, 79 Wn. App. 494 (Div. II, 1995) - Feb ‘96:20
 
 

Broken wing window doesn’t establish beyond a reasonable doubt under-age driver’s knowledge vehicle taken without permission – that evidence alone insufficient to convict. State v. L.A., 82 Wn. App. 275 (Div. I, 1996) - Oct ‘96:10
 
 

No theft aggregation for "common scheme" because separate thefts occurred at different times and places with different victims. State v. Atterton, 81 Wn. App. 470 (Div. I, 1996) - Nov ‘96:11
 
 

Clerk’s multiple thefts from store registers on three separate days support three second degree theft convictions; "aggregation" statute does not require that the three charges be reduced to one charge. State v. Carosa, 83 Wn. App. 380 (Div. II, 1996) - March ’97:17
 
 

Prosecutor can charge accused with trafficking in the same item of property which accused has been charged with stealing. State v. Michielli, 132 Wn.2d 229 (1997) - Oct ’97:11
 
 


TRAFFIC (Title 46 RCW) (See also "Implied Consent")
 
  "Preservation of evidence" rule remains unresolved; evidence of speeding sufficient to support reckless driving inference instruction. State v. Hanna, 123 Wn.2d 704 (1994) July '94:12
 
 

Update on Motorcycle Helmet Law Enforcement. Dec. '94:20
 
 

NOTE: "Administrative per se" license revocation for DUI -- update. Feb. '95:20
 
 

Evidence law in traffic cases -- radar results admissibility explained. Bellevue v. Lightfoot, 75 Wn. App. 214 (Div. I, 1994) April '95:20
 
 

No crime if traffic violator won't promise to respond per citation form; extra step necessary in order to make refusal to sign a crime. Port Orchard v. Tilton, 77 Wn. App. 178 (Div. II, 1995) June '95:07
 
 

Vehicular homicide based on driver's DUI status doesn't require proof that intoxication caused victim's death; only operator-cause need be proven. State v. Rivas, 126 Wn.2d 443 (1995) Aug. '95:12
 
 

Rivas's interpretation of vehicular homicide statute applied. State v. Salas, 127 Wn.2d 173 (1995) Oct. '95:04
 
 

"Felony eluding" doesn't include "intent"; also, "necessity" no defense. State v. Gallegos, 73 Wn. App. 644 (Div. I, 1994) Oct. '95:18
 
 

DOL may rely on statutory change-of-address requirements in mailing notice of driver's license revocation; due process challenge fails. State v. Rogers, 127 Wn.2d 270 (1995) Nov. '95:09
 
 

"Excessive noise" traffic statute upheld; also, frisk upheld. State v. Olsson, 78 Wn. App. 202 (Div. III, 1995) - Jan ‘96:07
 
 

Seattle DUI ordinance with .08 BAC standard invalid. Seattle v. Williams, 128 Wn.2d 341 (1995) - Feb ‘96:11
 
 

Bicycling while intoxicated not a crime under title 46 RCW. Montesano v. Wells, 79 Wn. App. 529 (Div. II, 1995) - Feb ‘96:20
 
 

License revocation as habitual traffic offender continues after statutory five-year revocation period ends; reinstatement not automatic. State v. Danner, 79 Wn. App. 144 (Div. II, 1995) - March ‘96:14
 
 

Injury-accident-hit-and-run statute (RCW 46.52.020) applies where defendant causes accident, even if no MV contact or collision. State v. Hughes (Billy Ray), 80 Wn. App. 196 (Div. III, 1995) - April ‘96:18
 
 

Repair technician on BAC circuit boards need not be certified. State v. McGinty, 80 Wn. App. 157 (Div. I, 1995) - May ‘96:15
 
 

Trial court should not have dismissed DUI case for insufficient evidence; where driver found behind wheel of car stopped on shoulder of I-5, it is reasonable to infer that he drove it there. State v. Wilhelm, 78 Wn. App. 188 (Div. II, 1995) - July ‘96:16
 
 

Post-vehicular homicide blood test without advice not admissible; also, urine sample not admissible in evidence because no toxicologist protocol for urine testing. State v. Anderson, 80 Wn. App. 384 (Div. I, 1996) - July ‘96:18
 
 

Officers’ testimony re arrestees’ levels of intoxication admissible in DUI cases; due process and search incident issues also addressed. State v. Lewellyn, 78 Wn. App. 788 (Div. III, 1995) - August ‘96:20
 
 

Dui law's two-hour rule re bac's at 0.10% or above violates due process by impermissibly shifting proof burden to defendant; therefore, in a DUI prosecution based on the two-hour rule, prosecution must negate possibility of effect of post-driving alcohol consumption. State v. Crediford,130 Wn.2d 747 (1996) - March ’97:03
 
 

Helmet-less cyclists have no standing to challenge helmet statute for vagueness. City of Kennewick v. Henricks, 84 Wn. App. 323 (Div. III, 1996) - April ’97:13
 
 

Felony eluding statute requires that pursuing officer be "in uniform." State v. Fussell, 84 Wn. app. 126 (Div. III, 1996) - April ’97:19
 
 

"Felony eluding" statute requires proof pursuing officers in uniform. State v. Hudson, 85 Wn. App. 401 (Div. I, 1997) - Sept ’97:19
 
 

"Felony eluding" charge stands even if pursuit initiated without cause. State v. Duffy, 86 Wn. App. 334 (Div. III, 1997) - Sept ’97:20
 
 

Extended seizure of jaywalker while warrant check conducted is disapproved on statutory grounds; constitutional issue reserved. State v. Rife, 133 Wn.2d 140 (1997) - Oct ’97:03 [In a special session, the Washington Legislature amended RCW 46.61.021 to plug the Rife loophole. Nov 97:03.]
 
 

Aerial surveillance speed trap law not met by State’s affidavit. State v. Smith (Jason W.), 87 Wn. App. 345 (Div. I, 1997) - Nov ’97:21
 
 

Causation rule of Rivas for vehicular homicide maintained; but speeding recklessness inference instruction inappropriate on evidence of moderate speeding. State v. Randhawa, 133 Wn.2d 67 (1997) - Jan 98:08
 
 

DOL bulletin #1: Administrative DUI hearings: why cases are dismissed. Jan 98:20
 
 

DOL bulletin #2: ccdr’s, black and whites, and custodian of record. Jan 98:20
 
 

Challenge to Washington motorcycle helmet law fails, for now. City of Bremerton v. Spears, 134 Wn.2d 141 (1998), - March 98:08
 
 

Crediford’s "implied element" holding confirmed in DUI case. City of Seattle v. Norby and City of Seattle v. Burdge, 88 Wn. App. 545 (Div. I, 1997) - May 98:14
 
 

"Juvenile" means "under the age of 21" for purposes of statutory license-revocation scheme of RCW 46.20.265. Davis v. DOL, 90 Wn. App. 370 (Div. III, 1998) - May 98:17 [Review is pending in the State Supreme Court]
 
 

Bicyclist in crosswalk is pedestrian whether on or off bike. Pudmaroff v. Allen, 89 Wn. App. 928 (Div. I, 1998) - Nov 98:13 [Review is pending in the State Supreme Court]
 
 


TRIAL – WAIVER OF RIGHT TO BE PRESENT
 
  Voluntary absence from court after commencement of trial waives right to be present for trial. State v. Thompson, 123 Wn.2d 877 (1994) Sept. '94:09
UNIFORM CONTROLLED SUBSTANCES ACT (Chapter 69.50 RCW), OTHER DRUG LAWS
 
  Swallowing drugs to conceal, rather than assimilate, is possessing them. State v. Rudd, 70 Wn. App. 871 (Div. II, 1993) Jan. '94:15
 
 

Due process clause requires notice and hearing before seizing real property under federal drug forfeiture laws. U.S. v. Good, 126 L. Ed.2d 490 (1993) March '94:02
 
 

School zone sentence enhancement for illegal drug possession in zone with intent to deliver does not require proof of intent that delivery occur within the zone. State v. McGee, 122 Wn.2d 783 (1993) March '94:03
 
 

Correction notice -- real property forfeiture. May '94:03
 
 

Short duration of possession of drugs doesn't necessarily negate drug charge. State v. Staley, 123 Wn.2d 794 (1994) Sept. '94:08
 
 

Evidence of possession of "residue" of cocaine sufficient to support drug possession conviction. State v. Malone, 72 Wn. App. 429 (Div. I, 1994) Sept. '94:18
 
 

Article: "Pig theory" of forfeiture explained. Oct. '94:02
 
 

Forfeiture of real, personal property held not excessive penalty in drug case. State v. Clark, 124 Wn.2d 90 (1994) Oct. '94:05
 
 

Possession alone, even of large amount of drugs, generally does not support conviction for drug possession with "intent to deliver". State v. Hutchins, 73 Wn. App. 211 (Div. III, 1994) Oct. '94:11
 
 

Intent to deliver proven by juvenile's possession of 24 cocaine rocks and $342 in cash. State v. Hagler, 74 Wn. App. 232 (Div. I, 1994) Oct. '94:13
 
 

1,000 feet provision of UCSA's "school ground" sentence enhancement means "within a 1,000 foot radius". State v. Wimbs, 74 Wn. App. 511 (Div. III, 1994) Oct. '94;13
 
 

Trial court tries to put excessive burden of proof on government in vehicle forfeiture case under RCW 69.50.505; government's burden is to establish probable cause only. Cruz v. Grant County Sheriff's Office, 74 Wn. App. 490 (Div. III, 1994) Nov. '94:10
 
 

Real property forfeiture provisions of RCW 69.50.505 require full adversarial hearing "within 90 days: but trigger date unclear. Tellevik et. al. v. Real Property Known As 31641 West Rutherford Street et. al., 125 Wn.2d 464 (1994) (Tellevik II) Feb. '95:06
 
 

Accomplice sentences enhanced per UCSA's drug free zone provision. State v. Silva-Baltazar, 125 Wn.2d 472 (1994) March '95:06
 
 

No "reckless omission" from warrant affidavit in officer-affiant's failure to note CI's drug addiction, criminal record, grudge against suspect, and relationship to suspect; also, "intent to deliver" evidence sufficient. State v. Taylor, 74 Wn. App. 111 (Div. I, 1994) May '95:18
 
 

"Unwitting possession" of illegal drugs established by defendant. State v. Hundley, 72 Wn. App. 746 (Div. II, 1994) May '95:20
 
 

Overt act requirement not met in case for attempted cocaine possession. State v. Grundy, 76 Wn. App. 335 (Div. III, 1994) June '95:16
 
 

Purchaser of cocaine not guilty of UCSA "delivery". State v. Morris, 77 Wn. App. 948 (Div. II, 1995) Sept. '95:14
 
 

UCSA "school zone" law applies even if school is located on third floor of urban building, and therefore has no playground or landscaping. State v. Shannon, 77 Wn. App. 379 (Div. I, 1995) Oct. '95:10
 
 

K-9 sniff of vehicle, together with other evidence establishes probable cause justifying seizure and forfeiture of vehicle under RCW 69.50.505. Adams County v. 1978 Blue Ford Bronco, 74 Wn. App. 702 (Div. III, 1994) Oct. '95:16
 
 

Hearsay, constructive possession issues resolved against defendant in drug case where officer executing search warrant answered the phone. State v. Collins, 76 Wn. App. 496 (Div. I, 1995) Oct. '95:17
 
 

No inherent judicial authority to order forfeiture of derivative contraband. State v. Alaway, 64 Wn. App. 796 (Div. II, 1992) Oct. '95:20
 
 

Possession of "precursor" chemicals not "Receiving" and not a crime. State v. Bernard, 78 Wn. App. 764 (Div. I, 1995) - Jan ‘96:13
 
 

"Intent to deliver" evidence insufficient; State must prove more than possession of marijuana plus multiple baggies plus paraphernalia for use. State v. Davis, 79 Wn. App. 591 (Div. III. 1995) - Feb ‘96:13
 
 

"Intent to deliver" evidence sufficient where drug buyer had $808 cash and no drug use paraphernalia on his person immediately following $1000 drug buy. State v. Lopez, 79 Wn. App. 755 (Div. III, 1995) - April ‘96:16
 
 

Constructive possession of drugs shown by totality of circumstances. State v. Robinson, 79 Wn. App. 386 (Div. I, 1995) - May ‘96:11
 
 

Constructive possession standard gets pro-state ruling. State v. Ponce, 79 Wn. App. 651 (Div. III, 1995) - May ‘96:13
 
 

YEP program in Seattle is a "school" for purposes of drug act sentence enhancement. State v. Vasquez, 80 Wn. App. 5 (Div. I, 1995) - May ‘96:15 [But see State Supreme Court decision in State v. Becker, 132 Wn.2d 54 (1997) Nov 97:05.]
 
 

Landlord can’t be convicted as possessor of tenant’s marijuana grow based only on evidence of landlord’s knowledge and acquiescence in tenant’s illegal activity; however, such circumstances may justify prosecution of landlord for "unlawful use of building for drug purposes" under RCW 69.53.010. State v. Roberts, 80 Wn. App. 342 (Div. I, 1996) - May ‘96:15
 
 

In rem civil forfeitures -- whether based on use of property or on status of property as proceeds -- are not punishment for double jeopardy purposes; such civil forfeitures therefore do not bar criminal prosecutions. U.S. v. Ursery, 135 L.Ed.2d 549 (1996) - August ‘96:11
 
 

No double jeopardy issue where drug forfeiture not contested. State v. Anderson, 81 Wn. App. 636 (Div. II, 1996) - Sept ‘96:16
 
 

Drug forfeiture: constitutional excessiveness analysis examines both (1) instrumentality factors and (2) proportionality factors; also, homestead question addressed, gets pro-government ruling; and double jeopardy issue controlled by ursery’s pro-government ruling. Tellevik v. Real Property Known As 6717 100th St. S.W., 83 Wn. App. 366 (Div. II, 1996) - Feb ’97:10
 
 

Drug dealer who claimed to be acting as a police informant when he delivered coke to third party loses argument that he was entitled to immunity under rcw 69.50.506(c); ci agreement contradicts theory. State v. McReynolds, 80 Wn. App. 894 (Div. III, 1996) - April ’97:14
 
 

On constructive possession issue, jury must be instructed that presumption regarding possession of drugs is rebuttable. State v. Cantabrana, 83 Wn. App. 204 (Div. I, 1996) - June ’97:16
 
 

UCSA upheld: no constitutional right to medicinal use of marijuana. Seeley v. State, 132 Wn.2d 776 (1997) - Oct ’97:11
 
 

Reversal on due process grounds of school zone enhancement for delivering cocaine near downtown seattle building with k-12 program. State v. Becker, 132 Wn.2d 54 (1997) - Nov ’97:05
 
 

Double jeopardy under Washington constitution is the same as under the federal constitution - in rem civil forfeiture is not punishment and therefore such forfeitures do not bar criminal prosecution. State v. Catlett, 133 Wn.2d 355 (1997) - Dec ’97:18
 
 

Evidence sufficient to prove constructive possession of cocaine found in apartment. State v. Tadeo-Mares, 86 Wn. App. 813 (Div. III, 1997) - Feb 98:20
 
 

Evidence sufficient to convict for delivery of cocaine even though customer and merchandise were gone by time officers who observed transaction with high power binoculars arrested defendant; officers familiar with drug trade in area and knowledgeable about how drug dealers worked testified that area was known for availability of cocaine, that activity by defendant and accomplice was characteristic of drug sale, and that small white packages were exchanged for money, officers recovered from defendant money sufficient to purchase bindle of cocaine, accomplice admitted that bag recovered from his person contained cocaine, and chemist testified that bag contained nine similarly packaged cocaine bindles. State v. Gill, 85 Wn. App. 672 (Div. II, 1997) - March 98:19
 
 

Computer disk is "map" for purposes of "school bus stop" UCSA sentence enhancement. State v. Nunez-Martinez, 90 Wn. App. 250 (Div. II, 1998) - May 98:14
 
 

"Drug house" statute’s "use" prong requires proof of use by persons other than the defendants. State v. Fernandez, 89 Wn. App. 292 (Div. I, 1997) - May 98:19
 
 

Selling illegal drugs to two buyers in sequence, but at same time and place, is only one crime for sentencing purposes. State v. Williams, 135 Wn.2d 365 (1998) - Sept 98:14
 
 

Marijuana possessor’s defense of religious freedom rejected; also, his defense of unwitting possession restricted. State v. Balzer, 91 Wn. App. 44 (Div. II, 1998) - Nov 98:14
 
 

Marijuana weight includes water if plant is "wet" when seized. State v. Kazeck, 90 Wn. App. 830 (Div. II, 1998) - Nov 98:15
 
 

PUD park is "public park" for purposes of UCSA enhanced sentencing. State v. Gordon, 91 Wn. App. 415 (Div. III, 1998) - Nov 98:19
 
 

Stop and frisk as well as sufficiency of evidence to support conviction for possession with intent to deliver, upheld. State v. Miller, 91 Wn. App. 181 (Div. II, 1998) - Dec 98:18
 
 


VAGUENESS DOCTRINE
 
  "Excessive noise" traffic statute upheld; also, frisk upheld. State v. Olsson, 78 Wn. App. 202 (Div. III, 1995) - Jan ‘96:08
 
 

Malicious harassment law (RCW 9A.36.080) does not require proof of: (1) "preselection of victim (in anti-bias protected class)", or (2) bias as "substantial factor" behind prohibited threats or acts. State v. Pollard, 80 Wn. App. 60 (Div. I, 1995) - May ‘96:13
 
 

Seattle ordinance prohibiting the carrying -- concealed or unconcealed -- of dangerous knives held constitutional. City of Seattle v. Montana; City of Seattle v. McCullough, 129 Wn.2d 583 (1996) - Dec ‘96:17
 
 

"Luring" statute not unconstitutionally vague; evidence sufficient to support conviction. State v. Dana, 84 Wn. App. 166 (Div. I, 1996) - June ’97:13
 
 

Archeological Resource Preservation Act not void-for-vagueness. State v. Lightle, 88 Wn. App 470 (Div. III, 1997) - May 98:16
 
 

San Juan County ordinance against motorized personal watercraft survives attack. Weden v. San Juan County, 135 Wn.2d 678 (1998) - Oct 98:10
 
 

Stalking law held constitutional. State v. Lee, 135 Wn.2d 369 (1998) - Oct 98:11
 
 


WILDLIFE PROTECTION
 
  "Impossibility" defense fails for "spotlight" hunters of decoy deer. State v. Walsh and Reeves, State v. Osborn, 123 Wn.2d 741 (1994) July '94:05
 
 

Division Three disagrees with Division Two and rules that killing deer with two antlers in three-antler area is violation of RCW 77.21.010(2), not violation of RCW 77.16.020(1); also, "necessity" defense rejected. State v. Bailey, 77 Wn. App. 732 (Div. III, 1995) Sept. '95:12
 
 


WITNESS INSTRUCTIONS BY POLICE, PROSECUTORS
 
  Prosecutor may not instruct witnesses not to speak with defense attorney in prosecutor's absence -- prosecutor may only advise witnesses as to their rights. State v. Hofstetter, 75 Wn. App. 390 (Div. II, 1994) March '95:17