Warrantless Record Searches

Warrantless Search

Prosecutors can snoop even if you’ve done nothing wrong.

Your private records aren’t so private. A Washington law adopted in 1971 allows investigator’s to get a suspect’s bank, phone, email and other records without a search warrant. Prosecutors have been able to get those records without even showing probable cause that a crime has occurred, the standard that applies to search warrants.  Instead, law enforcement can get the information with a subpoena issued under a lesser standard in a secret hearing called a special inquiry. But some judges and justices are having problems with these warrantless searches.

Justices on Washington’s Supreme Court heard arguments over whether that’s a violation of privacy protections in the state constitution. A King County senior deputy prosecutor argued that while a warrant is required to search someone’s home or their actual phone, probable cause should not be required to obtain records a person voluntarily turns over to third parties, such as phone records. Some justices questioned that analysis noting that in many cases phone companies or cloud computing firms maintain virtually everything that’s stored on a phone, making a records search very similar to a physical search. Justice Mary Yu stated,”The distinction you’re drawing between something that exists in the phone and what’s stored offsite is a reality that doesn’t exist anymore.” Defense counsel told the justices that such a vast intrusion into someone’s private affairs must require a more stringent showing by prosecutors than that required under the special inquiry law.

The Legislature created the special inquiry proceedings following a wide-ranging public corruption investigation in Seattle. They were designed to be a more efficient alternative to the grand jury system, which prosecutors found to be expensive and cumbersome. The procedure allows the judge to issue subpoenas for evidence, such as bank or phone records, at the request of a prosecutor who has ‘reason to suspect’ crime. Reasonable suspicion is a lesser standard than probable cause and that’s the problem. Under Washington’s Constitution, people can’t be disturbed in their private affairs without ‘authority of law’. The high court has never ruled on whether a special inquiry judge subpoena meets that standard. Under the federal constitution, such third-party records are not generally protected but Washington’s Constitution is considered more protective of people’s privacy.

Prosecutors have used the special inquiry judge subpoenas as substitutes for warrants. The justices noted that subpoenas are used to obtain records in a variety of legal proceedings, including civil business disputes and divorces, however, the key difference is that the records aren’t obtained by police. Furthermore, the party whose records are being sought has an opportunity to contest the subpoena or narrow the scope. No such opportunity is afforded under the special inquiry law; the person whose records are being searched may not ever learn about it. If the court rules that probable cause is needed to obtain records in criminal investigations, it should also clarify that subpoenas based on less than probable cause are still valid in other settings. The Seattle attorney who challenged the use of special inquiry proceedings stated, “Sometimes you want things to be more difficult and more expensive for the government, to discourage them from sifting through all our records.”



Criminal Attorney

DUI Investigation

DUI Drunk Driving

DUI Investigation

If a cop thinks you’ve broken the law, he can pull you over. Once he pulls you over, he can demand your license, registration, and proof of insurance. He can also run your name to find any outstanding warrants, and to see if your license is current. If, however, he wants to do much more than write you a ticket and send you on your way, then he needs reasonable suspicion that you were involved in criminal behavior.

So how does a cop get to pull you out of your car? The answer is found in State v. Allen, 138 Wn.App. 463,471 (2007). The Allen Court held that an officer can remove a driver from a vehicle stopped for an infraction for two different reasons: (1) Removal is within in the scope of the original traffic stop, or (2) the officer has acquired a lawful, reasonable suspicion that justifies further investigation. Id. At 471. The Allen Court held that an officer’s removal of a driver from a vehicle was not within the scope of traffic stop for a license plate violation, when the driver was questioned regarding the passenger’s identity. The court called the officer’s interrogation of the driver a “fishing expedition”. Id. at 471 (citing State v. Reding, 199 Wn.2d 685 (1992)).

Once the traffic-related purpose of the stop was fulfilled, further detention without a reasonable suspicion of criminal activity was improper. State v. Armenta, 134 Wn.2d 1, 15-16 (1997). If the officer isn’t justified in taking you out of your car, then your attorney might be able to convince a court to suppress any negative evidence that the officer discovered after you got out of the car. See State v. O’Neill, 148 Wa.2d 564, 583 (2003). When “an unconstitutional search or seizure occurs, all subsequently uncovered evidence becomes fruit of the poisonous tree and must be suppressed.” State v. Kennedy, 107 Wn.2d 1 (1986).

You can trust the former prosecutors and experienced defense attorneys at Durflinger Oliver & Associates to do everything possible to defend you and protect your future. Call today to schedule your free consultation, and ask us about a military discount and easy payment plans.



James E. Oliver, Esq.

James E. Oliver, Esq.

 

James Edmund Oliver, Jr. is a criminal attorney with over 15 years of experience representing defendants in serious criminal cases. Some of the more common charges he defends against are drugs, firearms, assault, and theft. James completed his legal studies at Seattle University School of Law where he graduated in 1998 with a Juris Doctor degree. Jim has established himself as respected and zealous advocate for a wide variety of clients.

Weed DUI Breath Test On The Horizon

Weed Preliminary Breath Test

Researchers are close to fielding a new breath tester for Marijuana – The new device is not shown above.

Research at WSU has led to the development of a portable breath test to detect marijuana DUI. Drivers under the influence of marijuana have become an increased concern since Washington voters legalized the recreational use of marijuana in 2012. A quarter of blood samples taken from drivers in 2013, the first full year the initiative was in effect, came back positive for marijuana.

WSU chemistry professor Herbert Hill and WSU doctoral student Jessica Tufariello are working on a handheld device that uses a technique called ion mobility spectrometry to detect THC, the psychoactive component of marijuana, on a person’s breath. Currently, officers and prosecutors rely on a blood test to determine the amount of THC present in a driver’s blood. These blood results are not immediately available to patrol officers who suspect a person of driving while impaired. An experienced Tacoma DUI Attorney can attack weed dui breath tests when they become available.

Initiative 502 set 5 nanograms of active THC per milliliter of blood as the legal limit at which a driver is automatically determined to be impaired. Initially, the marijuana breath test under development at WSU probably won’t be able to pinpoint the level of THC in the body; it will only tell officers that some THC is present. It is believed that this would be a helpful tool to officers as they decide whether to arrest a suspected impaired driver. However, since no numerical value is obtained with this test, a positive result is sure to result in an arrest.