Seattle Attorneys Blog

Washington Teen Convicted Based on Evidence Found by Mother

March 11, 2021 | by Blair & Kim, PLLC

The Fourth Amendment to the U.S. Constitution protects individuals from warrantless searches by the government, but does not generally apply to the actions of a private person. It can apply, however, if the private person is acting as a government agent. Courts consider whether the government knew of and agreed to the person’s conduct and whether the person’s intent was to help law enforcement. In a recent Washington case, a teenage defendant appealed her possession conviction after the juvenile court admitted evidence her mother found in a search conducted in the presence of a deputy.

According to the appeals court’s unpublished opinion, the mother reported her teen daughter had snuck out and came home intoxicated. The girl was asleep in bed when the deputy responded, and he did not think she looked intoxicated. The mother told him the girl had packed her backpack to run away. The deputy told the mother she could take the backpack and cellphone from her daughter. The mother emptied the contents of the backpack, including a small container that appeared to contain marijuana. The mother told the deputy she wanted her daughter charged. The state charged the girl with possession of 40 grams or less of marijuana while under 21 years of age.

The defendant moved to suppress the marijuana, arguing it was found in an unlawful warrantless search.

Washington Convictions for Violation of Multiple No Contact Orders Based on a Single Act

March 4, 2021 | by Blair & Kim, PLLC

The Fifth Amendment to the U.S. Constitution and the Washington Constitution both protect individuals from being charged multiple times for the same offense. Generally, in a Washington criminal case, a defendant may only be charged with multiple counts of the same crime if each is based on a separate criminal act.

A defendant recently challenged his convictions for violation of a court order, arguing that multiple convictions for violation of separate no-contact orders violated double jeopardy principles when the charges were all based on the same act.

There were three no-contact orders entered against the defendant protecting the same person. After the defendant contacted that person, he was arrested and charged with violation of a court order.

Title IX Investigations in Washington During Pending Criminal Cases

February 25, 2021 | by Blair & Kim, PLLC

Allegations of Title IX violations against a student in Washington can have complicated investigations. According to an article from the Associated Press, a professional football player recently filed a Title IX suit against the university he previously attended arising from an investigation and disciplinary action.

According to the plaintiff’s complaint in a previous lawsuit against the university, he was subject to simultaneous university and criminal investigations. In his complaint, he argued that the simultaneous investigations required him to choose between his right against self-incrimination and participating in the Title IX process. The complaint also alleged the plaintiff’s attorney notified the university’s Title IX Coordinator that the police department had exculpatory information that was critical to the Title IX investigation. The plaintiff alleged that, after the criminal charges were filed, his attorney asked to postpone his interview with the Title IX Coordinator until after the criminal matter was resolved. The complaint stated the university responded that it had not been able to obtain information from the district attorney’s office prior to resolution of the criminal proceedings and would not delay the conclusion of the Title IX process. The university’s Title IX Coordinator ultimately issued a final report. In his first lawsuit, the plaintiff sought damages and a stay on the disciplinary proceedings until the criminal matter was resolved. The plaintiff voluntarily dismissed that lawsuit in March 2019, but according to news reports, his attorneys expressed an intention to refile after the criminal case concluded.

According to news reports, the plaintiff was suspended from the football team in August of 2018 and subsequently expelled from the university. A jury acquitted him of the criminal charges in August 2019. He was reinstated to the university in August and was subsequently allowed to play football. In a statement about the reinstatement posted on its website, the university stated that it “obtained information following the criminal proceeding that was not provided to the university during the student conduct process.”

Non-Custodial Parent Must Show Current Washington Custody Schedule is Impractical to Modify Based on Their Own Relocation

February 17, 2021 | by Blair & Kim, PLLC

Washington family law includes a strong presumption in favor of continuity and against modification of a parenting plan. RCW 26.09.260. A parent seeking modification of a residential schedule must show there is adequate cause before a full hearing. In a recent case, a mother challenged a denial of adequate cause to modify the residential schedule following her move to the town where her children lived with their father.

According to the appeals court’s opinion, the mother “fled” to Alabama with her two daughters and “hid them from” their father when they separated. The father filed for divorce, was awarded custody, and ultimately brought the children back to Washington. The mother moved to Spokane.

The parenting plan from 2013 indicated the children’s primary residence was in Moses Lake with their father. The mother had the children on alternating weekends, with some additional time in the summer, plus certain holidays and school breaks.

Washington Appeals Court Reverses Conviction Due to Improper Identification Testimony

February 10, 2021 | by Blair & Kim, PLLC

Identification of the defendant as the person who committed the allegedly criminal act is an important part of a Washington criminal case. When there is video of the incident, however, the jury may be able to make the identification without the assistance of opinion testimony from a witness. Identification from a video constitutes opinion testimony. A lay witness may provide opinion testimony only if it is rationally based on the witness’s own perception, helpful in understanding the testimony or determining a fact at issue, and not based on specialized knowledge. ER 701. Washington courts have held that witness identification of a defendant in a surveillance photograph may invade the province of the jury, but the testimony may be admissible in certain circumstances. A lay witness may testify about the identity of a person in a surveillance photo if the witness is more likely to correctly identify them from the photo than the jury is. This may occur when the defendant has had multiple contacts with the witness and the video is unclear or the defendant’s appearance has changed since the video was taken.

A defendant recently successfully challenged a conviction after a police officer provided identification testimony.

According to the appeals court’s opinion, the defendant went into a grocery store with a woman and a child. The woman was caught on security footage putting items in her purse, but the defendant and the child were not visible in the video at the time. A loss prevention employee saw the woman’s actions on video surveillance. The woman paid for some items, but not those she put in her purse. The group left the store together.

Student Denied Injunction Against Expulsion for Alleged Title IX Misrepresentations

January 28, 2021 | by Blair & Kim, PLLC

Allegations of Title IX violations against a student in Washington can have far-reaching consequences. As an example, in a recent case, a male student sought to enjoin his medical school from enforcing an expulsion for allegedly misrepresenting the results of a Title IX allegation in an application to the university’s business school.

Following a breakup, “Jane Roe” reported two occurrences of physical violence by her former boyfriend and fellow medical student “John Doe” to the medical school. The school began an investigation soon afterward. The investigator met with the plaintiff four times, and Roe twice. The plaintiff and Roe were given access to review the Preliminary report in March. The plaintiff provided a timely response.

In May, the plaintiff attended a hearing with his attorney. He was allowed to give opening and closing statements, answer questions, and have questions asked of all witnesses, either directly or through the panel chair.

Washington Mother Denied Child Support When Father Had Custody

January 25, 2021 | by Blair & Kim, PLLC

The Department of Social and Health Services (DSHS) has the authority to enforce a Washington child support obligation. If there is no child support order, DSHS may serve a notice and a finding of financial responsibility (“NFFR”) on the responsible parent. If the parent objects, the parent’s past liability and responsibility is determined at a hearing. RCW 74.20A.055.

A mother recently challenged an Administrative Law Judge’s denial of her request for child support. The father was ordered to pay $1,794.24 in past due child support when the parents divorced. An amended parenting plan in 2010 awarded custody of both children to the father and gave the mother limited visitation. The court found the mother “may have an adverse effect on the child’s best interests…”

The mother moved for review and adjustment of visitation rights. The court allowed expanded visits and calls, but kept the supervision requirement. In a review in January 2011, the court found she remained “a danger to her children’s safety, health, and welfare.”

Washington Appeals Court Says Juveniles Subject to Deferred Disposition Must Give DNA

January 13, 2021 | by Blair & Kim, PLLC

Juvenile defendants may have the option of “deferred disposition.” In a deferred disposition, the defendant does not contest the state’s facts. If the court finds the statement of uncontested facts is sufficient, it finds the defendant guilty. Disposition, however, is deferred pending satisfaction of the conditions ordered by the court. If the defendant meets the conditions, the conviction is vacated.

An ongoing question has been whether juvenile defendants subject to deferred disposition are required to submit a DNA sample.

A juvenile defendant recently challenged an order that required him to submit a DNA sample. The juvenile was charged with two counts of theft of a motor vehicle, which is a felony. The trial court granted his motion for deferred disposition. He objected to submitting a DNA sample, but the court overruled the objection. The court entered guilty findings on both charges and deferred disposition. The court also stayed the requirement he submit a DNA sample pending his appeal.

New Jersey Court Grants Title IX Reconsideration Based on Changed Pleading Standard in Third Circuit

January 7, 2021 | by Blair & Kim, PLLC

Title IX law is currently in a state of flux. New regulations went into effect in 2020 significantly increasing due process protections for students accused of Title IX violations. The president-elect, however, has reportedly expressed an intention to change those regulations. Courts have also played a part in the changes occurring with Title IX. One issue that has recently been the focus of several cases is the pleading standard of Title IX discipline cases. Some courts have required allegations of Title IX violation in a disciplinary process to meet specific doctrinal tests. Several circuit courts have recently broken from this requirement and applied a broader pleading standard, resulting in a circuit split.

In a recent case, a plaintiff sought reconsideration of the dismissal of his Title IX claims following a Third Circuit opinion that he argued changed the law. A male student, identified as “John Doe,” filed suit against the university in the District of New Jersey, making both an “erroneous outcome” claim and a “selective enforcement” claim under Title IX, as well as several state law claims.

The District Court had previously dismissed his Title IX claims. The plaintiff moved for reconsideration based on a recent Third Circuit decision in similar case, Doe v. University of the Sciences. The plaintiff argued the Third Circuit decision constituted an “intervening change in the controlling law” that justified reconsideration.

Washington Court Must Consider Circumstances of Youth in Sentencing Juveniles

December 3, 2020 | by Blair & Kim, PLLC

After the U.S. Supreme Court determined that mandatory life sentences without the possibility of parole for juveniles was unconstitutional, the state of Washington enacted a statute requiring the re-sentencing of Washington criminal defendants who had been sentenced to life without the possibility of parole for crimes committed while they were juveniles. RCW 10.95.035.

A defendant who was re-sentenced after the change in the law recently challenged his new sentence. According to the appeals court’s opinion, the defendant killed two people during a robbery in 1997 at the age of 17. He was sentenced to the then-mandatory life sentence without the possibility of parole for each of two counts of aggravated first degree murder while armed with a deadly weapon, to be served consecutively, plus a deadly weapon enhancement of 24 months on each count.

Following a hearing in 2017, the defendant was re-sentenced to two concurrent terms of 42 years to life. The defendant appealed and the appeals court affirmed. The Washington Supreme Court remanded the case for reconsideration based on a recent decision.