Saturday, February 15, 2014

Congratulations to Judge Melnick

I have had the honor of handling numerous motions, hearings, court appearances and jury trials in front of Judge Melnick over the past several years in both Clark County District Court and Clark County Superior Court.

I have always felt that whatever decision Judge Melnick made I know that it was well reasoned and given the thought and analysis that was necessary. Judge Melnick always made sure that the rights of my client were preserved in every case.

I wish you the best of luck on the Court of Appeals.

Clark County judge appointed to Court of Appeals | The Columbian

Clark County judge appointed to Court of Appeals | The Columbian

Friday, November 2, 2012

This is an extremely disturbing revelation: mixing alcohol and energy drinks

Family: WSU student died from alcohol poisoning | The Columbian
The result of this motion to suppress that I filed is the following:

The prosecuting attorney essentially agreed with my position.He then made an amended plea bargain offer that resulted in my client pleading guilty to various charges and being sentenced to 366 in custody. My client took the deal and we vacated the suppression hearing

Not bad considering the previous offer had been 10 years in prison and the client was facing upwards of 20 years if convicted at trial

Thursday, October 4, 2012

One of my clients was arrested and two of his cell phones were seized. The arresting officer immediately began searching through the text messages that he had received on the phones. I have filed a motion to suppress. The motion contains the following argument as it relates to the warrentless search of information contained in the cell phones. The crux of the argument is based upon State of Washington v. Hinton 41014-1-II Court of Appeals of Washington, Division 2  June 26, 2012. The suppression hearing is set for October 18, 2012 before the Honorable Diane Woolard in Clark County Superior Court. I will post an update on the ruling. 
Article I, section 7 of the Washington Constitution provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." This provision protects a person's home and private affairs from warrantless searches. State v. Carter, 151 Wn.2d 118, 125, 85 P.3d 887 (2004). It is well settled that article I, section 7 affords qualitatively different—and potentially broader—protections than those provided by the Fourth Amendment to the United States Constitution. State v. McKinney, 148 Wn.2d 20, 26, 60 P.3d 46 (2002) (citing City of Seattle v. McCready, 123 Wn.2d 260, 267, 868 P.2d 134 (1994)). State vs. Hinton, 41014-1-II Court of Appeals of Washington, Division 2  June 26, 2012
                      In Hinton, the defendant claimed that he had a privacy interest in text messages that he had sent to another person’s cell phone. The court declined to hold that the defendant’s text messages, received and automatically stored by a private recipient, are entitled to constitutional protection. However, the court stated that “It is important to note that Hinton is arguing a privacy interest in another's electronic device, not his own.” 
                        The Hinton decision cites and analyzes United States v. Zavala, 541 F.3d 562, (5th Cir. 2008). In that case, “a DEA agent conducted a warrantless search of the defendant’s own cell phone (emphasis provided by the court), after stopping a car in which the defendant was traveling on suspicion that the car’s occupants had committed an illegal drug transaction. The Court reversed the defendant’s conviction because no exception to the warrant requirement applied. The Court stated in relevant part, that the defendant had a reasonable expectation of privacy regarding the information stored on the cell phone.” 
The Court in Hinton again noted that the defendant however was not claiming a privacy interest in his own phone.
                       An important holding in Hinton however relates to the text messages and the privacy interest that the defendant has in them in this matter. The Hinton Court states that “While Warshak[1] does not aid Hinton, its comparison of e-mails with traditional forms of communication is helpful and we adopt it to hold that text messages deserve privacy protection similar to that provided for letters. It is well established that letters are in the ‘general class of effects’ protected by the Fourth Amendment.”  The Hinton Court states that “We decline to offer communication made using a technological device more privacy protections than have been provided for letters, one of the most traditional form of communication. Case law has consistently applied the standard for letters to new technology.”

                     The Hinton Court stated in its opinion that “Like letters, a defendant has a privacy interest in messages stored on his or her own cell phone. Like letters, electronic communications, including text messages, may not be intercepted and searched” Finally, the Hinton Court stated that “On his own iPhone, on his own computer, or in the process of electronic transit, Hinton's communications are shielded by our constitutions.”

[1] United States v. Warshack 631 F.3d 266 (6th Cir. 2010)