Case Law Update (August, 2014)

Washington State Law

Supreme Court of Washington

State v. Homan:  In an opinion authored by Justice Wiggins and joined by Chief Justice Madsen and Justices Fairhurst, J.M. Johnson (P.T.), Stephens, Gonzalez, and Gordon McCloud, the Court found sufficient evidence to uphold Mr. Homan’s conviction of child luring when the evidence demonstrated that Mr. Homan had ridden up to a child on his bike and asked the child if he wanted candy, telling him there was some at his house.  The Court declined to reach Mr. Homan’s argument that the luring statute was overbroad, remanding to the Court of Appeals for further briefing and a decision on this issue.

Dissenting, Justice Owens, joined by Justice C. Johnson, argued that the evidence showed that Mr. Homan had offered candy to a child.  The dissent posited that there was insufficient evidence that Mr. Homan had invited a child into a non-public place.  The dissent further argued that the Court should have taken up the constitutional challenge and found the statute constitutional.  The dissent reasoned that the legitimate concerns of the statute outweighed any concern that legitimate speech might be encroached by its enforcement.  http://www.courts.wa.gov/opinions/pdf/883394.pdf

State v. Barton:  In an opinion authored by Justice Stephens, and joined by Justices Wiggins, C. Johnson, Fairhurst, and Korsmo (P.T.), the Court found that a trial court’s order that Mr. Barton post 10% of his $500,000.00 bail with the court registry in cash or other securities violated Mr. Barton’s constitutional right to bail by sufficient securities.   The Court reasoned that article I, section 20 means a defendant must be allowed the option to secure bail in its entirety via a surety, as distinct from cash or other security.    The Court acknowledged that the trial court’s order tracked the language of CrR 3.2(b)(4), but found that the rule was nevertheless constitutional.

In a concurrence, Justice Gordon McCloud, joined by the Chief Justice and Justice Gonzalez, agreed with the holding as set forth by the majority.  However, the concurrence noted that the trial court order tracked with the criminal rule, and argued that the criminal rule, not just the order, violates article I, section 20.  http://www.courts.wa.gov/opinions/pdf/893900.pdf

Division Two Court of Appeals

State v. Cawyer:  The Court found that the sentencing court exceeded its authority in characterizing as restitution an order directing Ms. Cawyer to pay the costs of her extradition from Ohio to Washington to answer to charges of first degree custodial interference.  However, the Court found that RCW 10.01.160 gives the sentencing court authority to require Ms. Cawyer to pay the State’s extradition expenses as a court cost.  The Court affirmed the amount set by the trial court as extradition expenses, and remanded with directions to the trial court to modify its restitution order to re-characterize the extradition expenses as court costs.  http://www.courts.wa.gov/opinions/pdf/D2%2044271-0-II%20%20Published%20Opinion.pdf

Division Three Court of Appeals

State v. Ward:  In this partially published opinion, the Court affirmed the trial court’s denial of Mr. Ward’s motion to suppress evidence.  The Court found that the officer had reasonable suspicion to stop Mr. Ward because the officer had reports from two separate individuals, one of whom was identified and both of whom had given phone numbers, and one of whom was providing real time updates to the officer.  The Court found that the fact that the officer observed the vehicle claimed to hold participates in an altercation then confirmed the tips.  The Court further found that the officer had reasonable articulable suspicion to search Mr. Ward’s person when Mr. Ward, who had been stopped on suspicion of having been involved in an altercation, had mentioned a pepper spray bottle in conversation with the officer and then began to reach under his seat, and that the search did not exceed the permissible scope of a frisk, as the object the officer meant to remove felt similar to a pocket knife.  The Court further held that the findings of fact and conclusions of law were properly signed, despite the fact that a judge other than the judge who heard the motion signed them.  The Court noted that Mr. Ward prepared the findings of fact and conclusions of law and did not object to the substitute judge’s signature at the time of presentation.  http://www.courts.wa.gov/opinions/pdf/313191.opn.pdf

State v. Davis: The Court upheld a search warrant based on the observation of at least 20 marijuana plants during a helicopter fly over of Mr. Davis’ property.  The Court found that there was a valid nexus between the warrant and the search of the greenhouses, house, and shed on the property, noting that the photograph and the testimony showed that the land, house, greenhouses, garden area, and outbuildings were all within a clearly defined living compound. Additionally, the residence was approximately 50 to 70 feet from the greenhouses and there were no other houses nearby. The buildings were well separated from other structures or homes; the nearest other structure to the property was over 700 yards away. Also, only one access road approached the property and ended on the property.  The Court further rejected Mr. Davis’ challenge to the search warrant based on the 2011 amendments to the Medical Use of Marijuana Act (MUCA), chapter 69.51A RCW.  The Court held that the 2011 amendments to the MUCA do not apply here because the amendments were not in effect when the search warrant was issued for Mr. Davis’s property in 2010, and that the amendments do not apply retroactively.  The Court further found that the court had previously determined that where an affidavit sets forth enough details to reasonably infer the suspect is growing marijuana on his or her property in violation of the uniform controlled substances act, chapter 69.50 RCW, the affidavit does not need to show the MUCA’s inapplicability to establish probable cause.  citing State v. Ellis, 178 Wn. App. 80 I, 805-06, 315 P 3d 1170 (2014).  The Court determined that while the 2011 amendments to RCW 69.51A.040 created a medical exception to the crime of manufacturing marijuana, this new exception functions the same as the old medical use affirmative defense provided in former RCW 69.S1A.040(1) (1999), Ellis, 178 Wn. App. at 806.  Therefore, the court concluded, the medical use affirmative defense does not invalidate probable cause to search.  http://www.courts.wa.gov/opinions/pdf/310523.opn.pdf

State v. Constantine:  In this companion case to State v. Davis, the Court again concluded there was sufficient nexus between the greenhouses and the house to support probable cause to search the house.  However, the Court found that the trial court erred in requiring the testimony of Dr. Orvald, the diagnosing physician, as a prerequisite to allowing her to raise the designated provider medical marijuana affirmative defense.  The Court concluded that the medical marijuana laws do not require Ms. Constantine to prove that the patient to whom she is a provider have a specific terminal or debilitating medical condition; rather, the laws require that she prove that such patient was diagnosed by a physician as having a terminal or debilitating medical condition, and that the testimony of the diagnosing physician is not necessary to establish this.

In a dissent, Judge Korsmo argued that there needed to be proof of the “terminal or debilitating medical condition” to trigger the medical marijuana affirmative defense.  In this case, the dissent argued, there was no proof, only a conclusory statement that such a condition existed.  The dissent would have concluded that there was no basis for granting a new trial on theories not pursued at the first trial, arguing that Ms. Constantine was free to offer the doctor’s business records at trial through a proper custodian of the record, but she made no effort to do so, and she should not get a second trial to attempt to pursue a new defense theory for which she also has not provided a factual basis.   http://www.courts.wa.gov/opinions/pdf/313131.opn.pdf

The Law Offices of Dena Alo-Colbeck focuses on research, brief writing, and trial preparation for criminal defense litigators.  If you have any questions regarding the foregoing decisions or if we may be of assistance on any other matter, please do not hesitate to contact us.

Dena Alo-Colbeck

Law Offices of Dena Alo-Colbeck

[email protected]

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