Search warrants
Division I:
Prosecutorial error – A prosecutor commits misconduct during voir dire by eliciting details about potential jurors’ experiences with sexual abuse in front of other potential jurors instead of focusing on whether they can be impartial. The fact that the prosecutor asked fewer follow-up questions to the juror who answered questions in private suggested the prosecutor’s voir dire strategy was to taint the other jurors with bias against the defendant. Here the error did not require reversal. State v. Coleman, Jr., No. 86629-0-I (Aug. 18, 2025, unpublished).
Division II:
Right to proceed pro se – A trial court abuses its discretion when it denies a defendant’s motion to proceed pro se if the defendant’s decision is unequivocal, knowing and voluntary, the defendant is mentally competent, and the defendant has not abandoned his request. The error in denying the defendant’s motion required reversal. State v. Chhim, No. 59710-1-II (Aug. 19, 2025).
Extrinsic evidence in the jury room – When the jury is improperly exposed to extrinsic evidence in the jury room, the trial court must ask whether the evidence objectively could have affected the jury’s verdict. If so, the defendant is entitled to a new trial under CrR 7.5(a)(1). State v. Chhim, No. 59710-1-II (Aug. 19, 2025).
Division III:
Search warrants – A search warrant authorizing the seizure of “Any data that may be kept on any of the seized digital devices in any format to include but not limited to intact files, deleted files, deleted file fragments or remnants related to the purchase, possession, receipt and distribution of controlled substances and or stolen property.” Is overbroad because it allows the seizure of evidence related to crimes for which there is no probable cause, in this case sex crimes. State v. Hampton, No. 39943-5-III (Aug. 19, 2025).
Public records – Legal advice in a legal memo that counsel sent to the county planning director was attorney client privileged. The county did not waive the privilege by reproducing a checklist from the memo, briefly mentioning the checklist at a public meeting, using the checklist to determine whether water was legally available for land use permitting, or by providing the requester a redacted version of the checklist in an attempt to comply with the PRA. A record need not be prepared in anticipation of litigation, or be relevant to a controversy, to be attorney client privileged. Methow Valley Citizens Council v. Okanogan County, No. 40747-1-III (Aug. 19, 2025, unpublished).
Foreign case of interest:
Selective enforcement – Evidence of historical racial segregation and “overpolicing” of Black people; and disproportional stops of African American drivers vis-à-vis the overall population, was insufficient to prove the police had a discriminatory motive to stop a Black driver who had the same falsified temporary license plate as several other drivers spotted that night. First, historical evidence prior to 1990 is irrelevant to a stop conducted in 2020. Second, statistical disparities generally cannot show that any one decision was motivated by racial animus unless race can be isolated from other confounding variables such as poverty, residence in a high-crime area of town, and existing arrest warrants. Also, the comparison of drivers stopped was compared to the general population, not the racial makeup of drivers. United States v. Moore, No. 24-4201 (4th Cir. Aug. 1, 2025).
(Editor’s note: Although the egregious nature of the defendant’s behavior which led to his arrest, makes the statistics less important to the final outcome, this case is included for the cogent, well-reasoned discussion of the proper use of statistics in selective enforcement claims and the roundup of the relevant case law.)
Washington Supreme Court:
Conditions of sentence – Random breath and urine testing to monitor compliance of statutorily authorized conditions of a sentence in a case that did not involve substance use are constitutionally permissible. State v. Nelson, No. 102942-0 (March 27, 2025).
Discretionary review – RAP 2.3(b)(3), which allows discretionary review where the court has “so far departed from the accepted and usual course of judicial proceedings… as to call for review…” applies to substantive irregularities, not just procedural irregularities. In Re Dependency of C.J.J.I., No. 103541-1 (March 27, 2025).
Recall Petitions – A legal voter of the state lacks standing to petition to recall a public officer of a political subdivision if he or she is not a legal voter of the political subdivision from where the officer was elected. In the Matter of the Recall of Suggs, No. 103314-1 (Mar. 27, 2025).
Division I:
Immunity – Washington’s anti-SLAPP statute (RCW 4.24.510) provides immunity from civil liability to a nurse who tells police a patient assaulted her, where the communication touches on the patient’s personal health information, and the patient sues the nurse for violating the Uniform Healthcare Information Act (Chapter 70.02 RCW) and for invasion of privacy. Campanelli v. Peacehealth Southwest Medical Center, No. 86615-0-I (Mar. 24, 2025).
(Editor’s Note: Washington has more than one anti-SLAPP statute. See e.g. M.G. v. Bainbridge Island School District, No. 86846-2-I (Mar. 24, 2025) discussing a different anti-SLAPP statute, Chapter 4.105 RCW.)
Division II:
Missing evidence instruction – Defense was not entitled to a missing evidence instruction when video evidence of the crime was deleted by a third party in the normal course, even though the police knew about the footage but failed to retrieve it. The video was not uniquely available to the State, and absence of the footage was explained – the clerk on duty at the time of the crime didn’t have access to the surveillance footage. State v. Plotnikov, No. 59063-8-II (March 25, 2025, unpublished).
Division III:
Comparability – Oregon’s crimes of Theft, Robbery and Burglary are not legally comparable to Washington’s Theft, Robbery and Burglary statutes. State v. Zimmerman, No. 39765-3-III (March 28, 2025).
(Editor’s note: In this case, most of the defendant’s prior Oregon convictions were found to be factually comparable, based on the language in the foreign charging instruments. Oregon’s “plea petitions” {equivalent of a Statement of Defendant on Plea of Guilty} will seldom contain a statement to satisfy a factual basis for a plea. However, Oregon’s pleading rules require very specific charging language. Therefore, you will frequently find specific allegations in an Oregon Information or Indictment which may prove factual comparability.)
9th Circuit:
Second amendment – The Second amendment protects the right to bear “arms,” not “accoutrements” to arms, such as high-capacity magazines. But even if it did, California’s ban on possessing large capacity magazines is consistent with the Nations’ tradition of protecting innocent persons by regulating a component of a firearm. Duncan v. Bonta, No. 23-55805 (9th Cir. Mar. 20, 2025).
Search warrants – A search warrant for an electronic device that includes a provision to search for evidence of dominion and control must establish probable cause that the evidence of dominion and control is relevant and follow the same particularity requirement for the dominion and control provision as any other evidence. United States v. Holcomb, No. 23-469 (9th Cir., March 27, 2025).
Foreign case of interest:
Second amendment – Because minors have yet to reach the age of reason, Florida’s Marjory Stoneman Douglas High School Public Safety Act, which prohibits a person under 21 from purchasing a firearm, is consistent with the nations’ historical tradition of firearms regulation. Just because Florida lowered the age of majority for other rights does not mean that it has less power to restrict the rights of minors than it did at the Founding; distinguishing the right to purchase a firearm from other rights is consistent with the founding-era legal regime. N.R.A. v. Commissioner, Florida Dept. of Law Enforcement, No. 21-12314 (11th Cir. March 14, 2025).