Hearing about police misconduct is always frustrating for a criminal defense attorney. Defense attorneys see the uphill battle that criminal defendants face in protecting their rights. The obstacles presented by police misconduct only make that a bit tougher.
This post is the second on an opinion recently released by the Second Division of the Court of Appeals of Washington. The first, which you can find here, discussed the effective use of an expert witness. This post will discuss the police misconduct that unfortunately made calling the expert witness a necessity.
The facts are important, so I will repeat them. During the course of a two-year investigation, the Olympia Peninsula Narcotics Enforcement Team (OPNET) surveilled both of the defendants'—two brothers—homes, as well as a shop that they owned. Throughout the surveillance, officers often reported strong odors of marijuana emanating from the shop. Through these reports, OPNET was able to obtain a warrant to examine the shop's utility records and to use thermal imagers to search the shop.
OPNET continued to report odors of marijuana emanating from the shop. They reported that thermal imaging revealed suspicious heat activity consistent with an indoor growing operation. Using this information, they were able to obtain a warrant to search the shop, where they found a grow operation.
Before trial, during a hearing challenging the validity of the search warrants, the defense presented evidence that there was no way the officers could smell the marijuana at the distances they described. The trial court agreed, suppressed all of the evidence that arose due to those warrants, and dismissed the case.
This was not the end of the trial court's findings. The court also found that, because of mismanagement, the video of the thermal imaging scans had been destroyed before the defense could see them. Any evidence of the scans were thus suppressed as well.
In Washington, a search warrant may be invalidated if it deliberately or recklessly contains material falsehoods. Such reckless behavior can include ignoring serious doubts as to the truth of the facts presented. On the other hand, single mistakes do not necessarily invalidate a warrant. One such case here in Washington allowed a warrant to stand when a police officer mistook a tomato plant for a marijuana plant. Here, the trial court did not believe this was a single mistake, as there were multiple nose hits from multiple locations. The Court of Appeals agreed.
Experienced defense attorneys have seen police misconduct before and generally have an idea on how to attack that misconduct. Hiring an experienced attorney can be incredibly important in protecting your rights. If you have been charged with a crime in the Greater Seattle area, including in King, Pierce, or Snohomish counties, contact Attorney Kevin Trombold today for a free consultation. His decades of experience will help protect your rights.