Criminal Law Updates for 10/18

Courtesy of Law Offices of Dena Alo-Colbeck
“Writing and Research for Washington Attorneys”

The following criminal cases of note were decided this week:

Washington State Law

Washington State Supreme Court

State v. Eriksen: The court held that a Lummi Nation tribal police officer had authority to pursue a vehicle that had committed a traffic infraction across the reservation border and then detain the non-Native American driver on suspicion of DUI until authorities with jurisdiction arrived. In so holding, the Court noted that the Washington Mutual Aid Peace Officer Powers Act permits fresh pursuit across jurisdictional boundaries by peace officers who have authority under Washington Law; however, the Act does not specifically bar tribal officers from fresh pursuit to complete a stop initiated on the reservation.
In her dissent, Justice Fairhurst, joined by Justices Madsen and Alexander, agreed that the tribal police officer had authority to stop Ms. Eriksen outside the reservation only to determine whether she was a tribal member over whom he had jurisdiction. However, the dissent argued that there was no applicable authority under which the officer had the power to detain Ms. Eriksen once he determined she was not a tribal member. The dissent argued that the Washington Mutual Aid Peace Officer Powers Act could not be construed to provide such authority, and any treaty now in place was likewise inapplicable.

City of Seattle v. Holifield: The Court held that suppression is a permissible sanction for a violation of CrRLJ 8.3(b) in certain cases of prosecutorial misconduct. This case arose from the Anne Marie Gordon perjury issues, and pursuant to those, the defendant’s breath test was suppressed in Seattle Municipal Court. The City moved for a writ of review in Superior Court, arguing that suppression was impermissible under CrRLJ 8.3(b), and dismissal was the only remedy allowed. The Court observed that the language of the rule was permissive, and stated that the trial court “may” dismiss – that is, the court may go to the outer bounds of available sanctions – for a violation of the court rule. However, the Court noted, the rule did not otherwise limit the court’s discretion. Further, the Court held that even if suppression had not been proper, the error would be nothing more than an error of law, and would not rise to the level of an illegal action necessary for the City to be allowed the extraordinary remedy of seeking a writ of review, as it attempted to do in this case.
Division Three Court of Appeals

State v. Koss: The Court granted a motion to publish this August 2010 decision, in which it held that the defendant’s action in standing in an open door and punching the victim, who was in her house, supported the necessary elements of first degree burglary. The Court further held that the defendant’s right to a public trial was not violated by an instruction conference held in chambers, and that the jury instructions in this case were not flawed. Finally, the court held that the trial court did not abuse its discretion in this case by failing to issue an instruction for the jury to disregard testimony regarding Mr. Koss being on DOC probation, nor did the prosecutor commit misconduct through comments made.

State v. Brown; State v. Duke: In this consolidated opinion, the Court affirmed two juvenile adjudications finding the defendants guilty of numerous counts related to possession of a firearm and vehicle prowling. In so doing, the Court upheld the search of the defendants’ car under the school exception to the general requirement of a search warrant as the search met the requirements of that exception, namely that it was justified at its inception when school officials knew the defendants had been truant and had been in Mr. Brown’s vehicle, in which a knife was observed, and its scope was related to the reasons justifying it.;

In Other News

The nine justices of the Washington State Supreme Court will be hearing oral arguments on October 21, 2010 at Gonzaga University. The following cases will be heard in the Law School’s Barbieri Courtroom:
· 9-9:40 a.m.: Michaels v. CH2M Hill, Inc., No. 84168-3 Whether professionals and employees at the City of Spokane Wastewater Treatment Plant are immune to actions against third persons under the state workers’ compensation statute.
· 9:50-10:30 a.m.: State v. Martin, No. 83709-1 Whether article I, section 22 of the Washington Constitution prohibits the State from cross-examining a defendant about his ability to tailor his testimony to discovery materials and the evidence presented when he was present at trial.
· 1:30-2:15 p.m.: City of Seattle v. May, No. 83677-9 Whether a permanent domestic violence protection order is invalid in failing to include adequate findings for extending the order beyond one year and in failing to state that the person subject to the order could be charged under the Seattle Municipal Code for violating the order.

Federal Law

The United States Supreme Court has not yet issued any decisions this term, and the Ninth Circuit Court of Appeals issued no published criminal decisions this week.

The Law Offices of Dena Alo-Colbeck focuses on research, brief writing, and trial preparation for criminal defense litigators. If you know of anyone who you think would like to receive these updates, please feel free to either forward this message or ask us to add his or her name to our email list. 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.

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Dena Alo-Colbeck
Attorney at Law
[email protected]

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