Pat-down frisks must be supported by objectively reasonable facts that suspect is armed and presently dangerous

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State v. Bee Xiong, Washington Supreme Court, filed September 11, 2008.

Police went to Kheng Xiong’s residence with a warrant for his arrest and a black & white picture of Kheng Xiong to assist in identifying him. Officers observed a minivan pull up to the residence and believed the passenger was Kheng Xiong, although he was actually Bee Xiong, Kheng’s brother.

Police immediately handcuffed Bee and performed a pat-down frisk. Bee told officers his name was Bee Xiong and that he was Kheng’s brother. He did not have identification, but he showed officers a tattoo on his arm of the letter “B”. The officers were unable to determine from the photograph if the man was Kheng Xiong.

One of the officers had previously noticed a bulge in Bee’s front pocket. He asked if there was something in his pocket that could hurt the officers and Bee responded, “No.” Bee told the officers that he did not want to be searched. The officer squeezed the bulge in Bee’s pocket and conferred with the officers, telling them he thought there was a “potential weapon” in Bee’s pocket. An officer reached into Bee’s pocket and pulled out a glass pipe that appeared to contain residue that the officers believed was a controlled substance.

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Urinalysis is warrantess search; Mandatory urine testing as condition of pretrial release is inappropriate as there is no evidence that it increases likelihood of appearance for court

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State v. Rose, Court of Appeals Division II, filed August 26, 2008.

Ms. Rose was arraigned on drug charges relating to a marijuana grow operation. Ms. Rose’s only criminal history was a conviction for driving with a suspended license from 1989. She had no history of failing to appear for court and she had a stable address and employment. The Court released Ms. Rose on her own personal recognizance, but imposed “standard drug conditions” such as weekly UA’s, no possession or use of non-prescribed drugs, no consumption of alcohol, and no entering locations where alcohol is the principal item for sale.

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Is our exclusionary rule in jeopardy?

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In a series titled “American Exception” The New York Times examines the American exclusionary rule in “Should Suspects Go Free When Police Blunder?” The exclusionary rule was originally outlined by the United States Supreme Court in Mapp v. Ohio, 367 U.S. 643 (1961) and mandates suppression of evidence in certain instances when police violate a suspect’s constitutional rights.

The United States Supreme Court is scheduled to consider the case of Bennie Dean Herring of Birmingham, Alabama on October 7, 2008. The Court will consider whether drugs and a gun should have been suppressed where police mistakenly searched Mr. Herring after believing he had an outstanding arrest warrant due to poor record-keeping at another police department.

Smell of marijuana in general area is insufficient for probable cause to arrest

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State v. Grande, Washington Supreme Court, filed July 17, 2008.

Mr. Grande was a passenger in a vehicle stopped for having very dark tinted windows. When the officer pulled the vehicle over, he detected the moderate smell of marijuana coming from the car. He arrested both the driver and Mr. Grande, the passenger. He handcuffed and searched them. He found a marijuana pipe that contained a small amount of marijuana on Mr. Grande. In the car, the officer found a burnt marijuana cigarette in the ashtray. The driver claimed the cigarette as her own. Both the driver and Mr. Grande were arrested and charged with possession of marijuana. Mr. Grande was also charged with possession of drug paraphernalia.

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Warrantless search of dorm hallway unlawful absent consent; residents have reasonable expectation of privacy in floor hallway

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State v. Houvener, Washington Court of Appeals, Division III, filed June 26, 2008.

Around 5:45 AM on February 11, 2006, campus police responded to a reported burglary on the third floor of a dormitory complex on the campus of Washington State University. The officer learned that the resident’s laptop computer and acoustic guitar had been stolen. Campus police initiated a search of the dormitory complex. Campus police started on the top of the complex, either the 12th or 13th floor, and walked the halls, eventually reaching the 6th floor.

Mr. Houvener and another person were in Mr. Houvener’s room on the 6th floor and the campus police heard voices and music which seemed suspicious around 6 AM. The police listened at the threshold and heard someone say he was paranoid they were going to be caught and a second voice say he didn’t think the victim would call the cops. The campus police officer put his finger over the peephole and tried a ruse to gain entry.  The residents ignored the ruse until the officer identified himself as a police officer and ordered them to open the door. Mr. Houvener opened the door. The officer, dressed in his police uniform and armed, asked Mr. Houvener to step into the hallway and down the hall with him. Mr. Houvener complied. Campus police asked Mr. Houvener questions and he made incriminating statements that some of the items in the room didn’t belong to him.

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