Seattle Attorneys Blog

Washington Appeals Court Determines Fenced Pasture Not Protected by Ferrier Rule

November 14, 2023 | by Blair & Kim, PLLC

Article I, section 7 of the Washington Constitution protects a person from having their “home invaded, without authority of law,” which generally requires a valid warrant. There is, however, an exception to the warrant requirement when officers obtain a valid consent to search. The consent except applies only when the consent is voluntary, the person has the authority to consent, and the search is within the scope of the consent.

Pursuant to State v. Ferrier, before entering a home when conducting a “knock and talk,” an officer must inform the person they have the right to refuse consent, revoke consent, and limit the scope of their consent to certain locations in the home. An important aspect of the court’s analysis in Ferrier was the constitutional protection of a person’s home. The court also expressed concerns about officers using the knock and talk to avoid getting a search warrant. The Ferrier court concluded officers violate article I, section 7 if they fail to inform a resident of the right to refuse consent to a warrantless search of the home.

The state recently appealed an order suppressing evidence officers obtained in multiple warrantless searches of a fenced pasture after the trial court suppressed the evidence based on the Ferrier rule.

Federal Court Requires University to Turn Over Records of Past Investigations in Title IX Case

October 31, 2023 | by Blair & Kim, PLLC

The Family Educational Rights and Privacy Act (“FERPA”) is a federal law that protects education records. FERPA generally prohibits a school or university from disclosing a student’s personally identifiable information in their education record without prior consent. Recently, a university refused to disclose records related to its prior sexual misconduct investigations, arguing that doing so would violate the involved students’ right to privacy under FERPA. A federal district court has granted the plaintiff’s motion to compel, subject to a stipulated agreement by the parties addressing notice to third parties.

The plaintiff filed a Title IX suit against his private university in Rhode Island, alleging he had been improperly disciplined based on his gender after being falsely accused of sexual assault. The plaintiff requested “comparator discovery” of other sexual misconduct cases during discovery. The university objected based on FERPA. The university provided the plaintiff with a summary chart of comparators that included gender, charges, sanctions, and appeal outcomes. The plaintiff requested the investigation report and adjudication and appeal decisions of four of the matters included in the chart and any other “related” matters. He requested that the names be redacted, but that the genders be included

The university determined six of thirty total cases were responsive, but it again objected. The university argued that there was a significant risk the parties could be identified even with redaction. It pointed out there would be details regarding those individuals and their “private, sexual encounters” in the reports and decisions. The university stated FERPA required it to make a reasonable effort to notify the student parties and potentially witnesses before disclosure.

Washington Appeals Court Upholds Juvenile’s Arson Convictions

October 31, 2023 | by Blair & Kim, PLLC

Washington law provides special protections to children in criminal investigations. Pursuant to RCW 13.40.740, which became effective January 1, 2022, a juvenile being questioned in a custodial interrogation, detained based on probable cause of involvement in criminal activity, or asked to consent to an evidentiary search can only knowingly, intelligently, and voluntarily waive their Miranda rights after consulting with an attorney. This consultation cannot be waived. A Washington juvenile defendant recently challenged his convictions, arguing in part the consultation requirement should apply even though he was interviewed before the statute’s effective date.

The Fires

According to the unpublished appeals court opinion, the thirteen-year-old juvenile told his father there was a fire at the dumpster of their apartment complex when he returned from taking out the trash on May 7.

He was home alone on the morning of May 16 and two more fires occurred. He was home alone again that afternoon and three more fires were set. No one saw how the fires started or who started them.

Due Process in a Washington De Facto Parentage Proceeding

October 20, 2023 | by Blair & Kim, PLLC

In some circumstances, Washington family law may recognize a person as a de facto parent, or a person who is not a child’s biological or adoptive parent, but who has the rights and responsibilities of a legal parent. A person seeking to be declared a de facto parent must prove the elements set forth in RCW 26.26A.440(4) by a preponderance of the evidence. They must show that they lived with the child for a significant period, consistently took care of the child, engaged in “full and permanent” parenting responsibilities without expectation of compensation, held the child out as their own, and established a parental relationship with the child that was “fostered or supported” by another parent of the child. Additionally, they must show that continuing the relationship is in the child’s best interest.

A mother recently appealed a court order awarding her former romantic partner the rights of a legal parent to her child. According to the appeals court, the mother’s relationship with the petitioner began while she was pregnant with the child and continued until the child was about nine years old. The petitioner was not the child’s biological father, but petitioned for de facto parentage after his relationship with the mother ended. The mother wanted to move out of state to be closer to her family, but remained in Clark County to respond to the petition.

Proceeding

The petitioner alleged he provided the child “emotional and material support.” He filed documents, including evidence the school listed him as the child’s guardian and emails with the child’s teacher, principal, and school counselor. He also submitted transcripts of videos in which he and the mother stated he would be the child’s father and the child called him “daddy.”

Washington Appeals Court Reverses Restitution Order

October 8, 2023 | by Blair & Kim, PLLC

RCW 9.94A.753(5) requires a court to order restitution when a defendant is convicted of a Washington criminal offense that results in injury or damage to or loss of property, unless there are “extraordinary circumstances.” The state must prove the damages by a preponderance of the evidence. Restitution cannot include intangible losses like mental anguish or pain and suffering. The restitution cannot be more than double the amount of the defendant’s gain or the victim’s loss. RCW 9.94A.753(3)(a). A defendant recently challenged a restitution order, arguing the state had not sufficiently proven he had caused the damages.

According to the unpublished opinion of the appeals court, the pleaded guilty to a single count of vehicle prowl and three counts of possession of a stolen vehicle. He agreed to pay restitution for in an amount to be determined for two of the charged crimes and three uncharged crimes, including possession of a pick-up truck.

In addition to damages to the truck for which the defendant was charged, the state requested $12,605.84 for damage to the uncharged truck. The state argued the defendant was responsible for all of the damage to the uncharged truck because he was “the person that caused the victim to lose possession of the vehicle. . .” and asked the trial court to find that the defendant was responsible for all of the damages associated with the vehicle.

Washington DVPO and the Relocation Presumption

September 30, 2023 | by Blair & Kim, PLLC

Washington family law recognizes a rebuttable presumption that relocation of a child under a parenting plan will be permitted. That presumption does not apply, however, if the parents have “substantially equal residential time.” “Substantially equal time” generally means the child spends at least 45% of their residential time with each parent pursuant to a court order. RCW 26.09.525. A father recently challenged a relocation, partly because the trial court applied the presumption by considering how the residential time changed under a Domestic Violence Protection Order (“DVPO”).

According to the appeals court’s opinion, the mother sought a DVPO against the father after seeing severe bruising on their two-year-old daughter.

The mother filed a notice of intent to move the children. She asked that the father be evaluated for substance abuse and anger management or domestic violence and comply with the treatment recommendations. She also requested the court suspend his residential time for non-compliance.

Eighth Circuit Affirms Dismissal of Expelled High School Student’s Title IX Case

September 26, 2023 | by Blair & Kim, PLLC

Much of the Title IX litigation brought by students accused of sexual misconduct occurs at the post-secondary level, but a male student recently sued his former high school after being expelled.

The plaintiff was a student at an all-boys private high school in Nebraska. According to the Eighth Circuit’s opinion, school staff overhead the plaintiff in a conversation with his friend. The plaintiff claimed he told his friend “that he would not have sex” with a particular teacher, but the staff believed he said he would have sex with the teacher.

The school initiated an investigation. The plaintiff alleged the Dean of Students said he considered the plaintiff “guilty” and “repeatedly demanded” the plaintiff admit he said he would have sex with the teacher. The plaintiff claimed he ultimately gave “a false confession” in response to the “pressure” and was expelled.

Washington Appeals Court Reverses DVPO that Excluded Parties’ Minor Child

September 21, 2023 | by Blair & Kim, PLLC

When a parent seeks a Washington domestic violence protection order (“DVPO”), they may want to include their minor children as protected parties. If the protection order is against the other parent, it can affect that parent’s visitation and custody. In a recent case, a mother appealed a DVPO that did not include her three-year-old child as a protected party.

The appeals court’s opinion stated the mother had petitioned for a protection order to protect herself and her child against her boyfriend, who was also the child’s father. She requested an order restraining him from any contact with her or the child, from coming within 1,000 feet of her home or workplace or the child’s daycare. She asked for sole custody of the child. She asked the court to order the father to participate in treatment or counseling. She requested the order be effective for over a year.

She alleged multiple incidents of domestic violence by the father, including incidents in which she said he shoved her and threatened her. She stated the father was under investigation for an incident in which he threw her against the wall and to the floor, choked her, and banged her head against the floor. She alleged this incident occurred in front of the child.

Washington Driver License Revocation Under RCW 46.20.285(4)

September 14, 2023 | by Blair & Kim, PLLC

Under RCW 46.20.285, a Washington driver license must be revoked upon conviction of certain offenses. The statute requires the Department of Licensing to revoke the driver license when conviction of one of the listed offenses becomes final. A defendant recently challenged his judgment and sentence, arguing the court had applied the wrong version of the statute.

The appeals court obtained the details of what occurred from the affidavit of probable cause. It stated the defendant and another person took fragrances from a beauty store without paying. The store manager described the individuals and the vehicle they left in to police. An officer stopped a car matching that description. He saw several fragrance boxes in the floor and the back seat passenger had store alarm sensors in their lap. The defendant reached a plea agreement with the state and entered a guilty plea on one count of possession of stolen property in the second degree.

The only disputed issue at the sentencing hearing was whether the court should find that the vehicle was used in commission of the offense, leading to suspension of the defendant’s driver license for one year, pursuant to RCW 46.20.285(4).

Student Sues Private University Alleging Violation of ADA in Title IX Process

August 31, 2023 | by Blair & Kim, PLLC

A student at a private university in New York recently filed suit against the university due to its alleged failure to accommodate his disability during a Title IX investigation. According to the complaint, the plaintiff enrolled in the university through a program for intellectually and developmentally disabled students (“Program”). The plaintiff alleged that he was notified of several complaints filed against him on October 6 and 7, 2022. He was also notified that the university had determined he was “an immediate physical threat. . .” and was suspended on an interim basis.

According to the complaint, the plaintiff’s parents obtained counsel on his behalf and his advisor requested accommodations during the Title IX investigation process. When the investigator contacted the plaintiff and his advisor regarding an interview, the advisor responded the plaintiff was “unable to adequately participate in an interview. . .” and would “require extraordinary accommodations.” The plaintiff alleged that in subsequent communications, the advisor indicated that the plaintiff wanted to participate in an interview if he received proper accommodations. The complaint alleged the advisor and investigator discussed the matter on the phone, but the plaintiff was still not offered or provided accommodations.

The complaint further alleged that, instead of granting accommodations or engaging in the interactive process, the university served the plaintiff with additional Notices of Investigation regarding more complaints and allegations against him. According to the complaint, the investigator again contacted the plaintiff and his advisor about scheduling an interview although he acknowledged he had not been contacted by the university’s Center for Disability Resources regarding accommodations. The complaint states the investigator subsequently advised the plaintiff he intended to proceed to the next step of the investigation.