595Th Basic Law Enforcement Academy April 12, 2006 Through August 17, 2006

595th Basic Law Enforcement Academy – April 12, 2006 through August 17, 2006

President:Greg Massey - Puyallup Police Department

Best Overall:Christopher Caplan – King County Sheriff's Office

Best Academic:Christopher Caplan – King County Sheriff's Office

Best Firearms:Jay Taylor – Everett Police Department

Tac Officer:Officer Shelley Hamel – Federal Way Police Department

596th Basic Law Enforcement Academy – April 24, 2006 through August 29, 2006

President:Robert Phillips – Mill Creek Police Department

Best Overall:Anthony Graham – Sequim Police Department

Best Academic:Kyle Kempte – Thurston County Sheriff's Office

Best Firearms:Thomas Vradenburg – Fife Police Department

Tac Officer:Officer Bill Shepard – Des Moines Police Department

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october 2006 LED TABLE OF CONTENTS

ninth circuit of the U.S. Court of Appeals...... 2

NO FOURTH AMENDMENT PRIVACY IN EMPLOYEE’S WORKPLACE COMPUTER WHERE EMPLOYER: 1) OWNED COMPUTER, 2) HAD POLICY AND PRACTICE OF ROUTINELY MONITORING COMPUTER, AND 3) HAD PROHIBITION AGAINST PRIVATE USE

U.S. v. Ziegler, 456 F.3d 1138 (9th Cir. 2006) (Decision issued August 8, 2006)...... 2

WHERE POSTAL INSPECTORS HAD NO OBJECTIVE BASIS FOR BELIEVING POSTAL EMPLOYEE WAS ARMED, THEIR FRISK WAS UNLAWFUL

U.S. v. Flatter, 456 F.3d 1154 (9th Cir. 2006) (Decision issued August 9, 2006) )...... 5

SEARCH WARRANT AFFIDAVIT ESTABLISHED THAT COMPUTER CONTAINED IMAGES OF MINORS ENGAGED IN SEXUALLY EXPLICIT CONDUCT, THOUGH COURT WOULD PREFER THAT AFFIANT’S ATTACH COPIES OF THE IMAGES TO THE AFFIDAVIT

U.S. v. Battershell, 457 F.3d 1048 (9th Cir. 2006) (Decision issued August 10, 2006)...... 8

BRIEF NOTE FROM THE ninth circuit of the U.S. Court of Appeals...... 13

NO QUALIFIED IMMUNITY FOR OFFICERS - - JURY CAN DECIDE CIVIL RIGHTS SUIT ALLEGING THAT OFFICERS USED EXCESSIVE FORCE AGAINST NON-SUSPECT, NON-RESISTING, 11-YEAR-OLD DURING SEARCH WARRANT EXECUTION; RULING IS BASED ON YOUTH’S CLAIMS, AMONG OTHERS, THAT OFFICERS: 1) POINTED GUN AT YOUTH FOR TOO LONG AND 2) KEPT HIM IN HANDCUFFS FOR TOO LONG

Tekle v. U.S., 457 F.3d 1088 (9th Cir. 2006) (Decision issued August 11, 2006)...... 13

BRIEF NOTES FROM THE Washington STATE Supreme Court...... 15

POLICE CHILD-SEXUAL-ASSAULT RECORDS MAY NOT BE WITHHELD BASED ON REQUESTOR’S IDENTIFICATION OF VICTIM

Koenig v. City of Des Moines, ___ Wn.2d ___, ___ P.3d ___, 2006 WL 2546946 (2006)...... 15

DEATH OF DEFENDANT WITH APPEAL PENDING DOES NOT AUTOMATICALLY “ABATE” CONVICTION

State v. Devin, ___ Wn.2d ___, ___ P.3d ___, 2006 WL 2468538 (2006)...... 16

Washington STATE Court of Appeals...... 16

JAIL HELD CIVILLY LIABLE FOR VIOLATING Washington STRIP SEARCH STATUTE IN AUTOMATICALLY STRIP SEARCHING ARRESTEE WHO WAS IN CUSTODY PENDING RELEASE ON BAIL

Plemmons v. Pierce County, ___ Wn. App. ___, 140 P.3d 601 (Div. II, 2006)...... 16

PHONE HARASSMENT - - THERE IS NOW A SPLIT IN WASHINGTON APPELLATE COURTS - - DIVISION TWO DISAGREES WITH DIVISION ONE, AND HOLDS UNDER RCW 9.61.230 THAT STATE MUST PROVE THAT CALL WAS INITIATED WITH INTENT TO HARASS, INTIMIDATE, TORMENT OR EMBARRASS VICTIM

State v. Lilyblad (aka Stephanie Rena Paris), __ Wn. App. __, 140 P.3d 614 (Div II, 2006)...... 20

BRIEF NOTE FROM THE Washington STATE Court of Appeals...... 22

DOMESTIC VIOLENCE VICTIM’S SMITH STATEMENT HELD ADMISSIBLE AGAINST HEARSAY AND CONFRONTATION CLAUSE CHALLENGES

State v. Thach, 126 Wn. App. 297 (Div. II, 2005)...... 22

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ninth circuit of the U.S. Court of Appeals

NO FOURTH AMENDMENT PRIVACY IN EMPLOYEE’S WORKPLACE COMPUTER WHERE EMPLOYER: 1) OWNED COMPUTER, 2) HAD POLICY AND PRACTICE OF ROUTINELY MONITORING COMPUTER, AND 3) HAD PROHIBITION AGAINST PRIVATE USE

U.S. v. Ziegler, 456 F.3d 1138 (9th Cir. 2006) (Decision issued August 8, 2006)

Facts and Proceedings below: (Excerpted from 9th Circuit opinion)

Frontline Processing (“Frontline”), a company that services Internet merchants by processing on-line electronic payments, is located in Bozeman, Montana. On January 30, 2001, Anthony Cochenour, the owner of Frontline's Internet-service provider and the fiancé of a Frontline employee, contacted Special Agent James A. Kennedy, Jr. of the FBI with a tip that a Frontline employee had accessed child-pornographic websites from a workplace computer.

Agent Kennedy pursued the report that day, first contacting Frontline's Internet Technology (“IT”) Administrator, John Softich. One of Softich's duties at Frontline was to monitor employee use of the workplace computers including their Internet access. He informed Kennedy that the company had in place a firewall, which permitted constant monitoring of the employees' Internet activities.

During the interview, Softich confirmed Cochenour's report that a Frontline employee had accessed child pornography via the Internet. Softich also reported that he had personally viewed the sites and confirmed that they depicted “very, very young girls in various states of undress.” Softich further informed Kennedy that, according to the Internet Protocol address and log-in information, the offending sites were accessed from a computer in the office of Appellant Jeffrey Brian Ziegler, who had been employed by Frontline as director of operations since August 2000. Softich also informed Kennedy that the IT department had already placed a monitor on Ziegler's computer to record its Internet traffic by copying its cache files.

Agent Kennedy next interviewed William Schneider, Softich's subordinate in Frontline's IT department. Schneider confirmed that the IT department had placed a device in Ziegler's computer that would record his Internet activity. He reported that he had “spot checked” Ziegler's cache files and uncovered several images of child pornography. A review of Ziegler's “search engine cache information” also disclosed that he had searched for “things like ‘preteen girls' and ‘underage girls.’” “ Furthermore, according to Schneider, Frontline owned and routinely monitored all workplace computers. The employees were aware of the IT department's monitoring capabilities.

The parties dispute what happened next. According to testimony that Softich and Schneider provided to a federal grand jury, Agent Kennedy instructed them to make a copy of Ziegler's hard drive because he feared it might be tampered with before the FBI could make an arrest. Agent Kennedy, however, denied that he directed the Frontline employees to do anything. According to his testimony, his understanding was that the IT department had already made a backup copy of Ziegler's hard drive. As the government points out, his notes from the Softich interview say, “IT Dept has backed up JZ's hard drive to protect info.” Thinking that the copy had already been made, Kennedy testified that he instructed Softich only to ensure that no one could tamper with the backup copy.

Whatever Agent Kennedy's actual instructions, the Frontline IT employees' subjective understanding of that conversation seems evident from their actions during the late evening of January 30, 2001. Around 10:00 p.m., Softich and Schneider obtained a key to Ziegler's private office from Ronald Reavis, the chief financial officer of Frontline, entered Ziegler's office, opened his computer's outer casing, and made two copies of the hard drive.

Shortly thereafter, Michael Freeman, Frontline's corporate counsel, contacted Agent Kennedy and informed him that Frontline would cooperate fully in the investigation. Freeman indicated that the company would voluntarily turn over Ziegler's computer to the FBI and thus explicitly suggested that a search warrant would be unnecessary. On February 5, 2001, Reavis delivered to Agent Kennedy Ziegler's computer tower (containing the original hard drive) and one of the hard drive copies made by Schneider and Softich. Schneider delivered the second copy sometime later. Forensic examiners at the FBI discovered many images of child pornography.

On May 23, 2003, a federal grand jury handed down a three-count indictment charging Ziegler with receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2); possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B); and receipt of obscene material, in violation of 18 U.S.C. § 1462.

On September 8, 2004, the district court entered a written order denying Ziegler's motion to suppress. Importantly, the court made the factual finding that “Agent Kennedy contacted Softich and Schneider on January 30, 2001 and directed them to make a back-up of Defendant's computer files ” (emphasis added). However, citing United States v. Simons, 206 F.3d 392 (4th Cir. 2000), the court ultimately held that Ziegler had no reasonable expectation of privacy in “the files he accessed on the Internet” and therefore denied Ziegler's motion.

Ziegler subsequently entered into a written plea agreement with the government. Pursuant to the agreement, the government agreed to dismiss the child pornography counts in exchange for Ziegler's agreement to plead guilty to the receipt of obscene material.

ISSUE AND RULING: Did Ziegler have a reasonable expectation of privacy in his workplace computer under the Fourth Amendment where his employer owned it, routinely monitored its use, and prohibited private use? ( ANSWER: No)

Result: Affirmance of U.S. District Court conviction of Jeffrey Brian Ziegler for receipt of obscene material in violation of federal law.

ANALYSIS: (Excerpted from 9th Circuit opinion)

Ziegler argues that “[t]he district court erred in its finding that Ziegler did not have a legitimate expectation of privacy in his office and computer.” He likens the workplace computer to the desk drawer or file cabinet given Fourth Amendment protection in cases such as O'Connor v. Ortega, 480 U.S. 709 (1987). Ziegler further contends that the Fourth Circuit's Simons case is inapposite. Whereas in Simons “the person conducting the search was a network administrator whose purpose was to search for evidence of employee misconduct,” in this case “the search was conducted at the behest of Agent Kennedy who was undeniably seeking evidence of a crime.”

The government, of course, views the matter quite differently. It contends that the district court's ruling was correct-Ziegler did not have an objectively reasonable expectation of privacy in his workplace computer.

Ziegler's expectation of privacy in his workplace computer must . . . have been objectively reasonable.

In United States v. Simons, the case upon which the district court relied, the Fourth Circuit reasoned that an employer's Internet-usage policy-which required that employees use the Internet only for official business and informed employees that the employer would “conduct electronic audits to ensure compliance,” including the use of a firewall-defeated any expectation of privacy in “the record or fruits of [one's] Internet use.” A supervisor had reviewed “hits” originating from Simons's computer via the firewall, had viewed one of the websites listed, and copied all of the files from the hard drive. Despite that the computer was located in Simons's office, the court held that the “policy placed employees on notice that they could not reasonably expect that their Internet activity would be private.”

As the government suggests, similar circumstances inform our decision in this case. Though each Frontline computer required its employee to use an individual log-in, Schneider and other IT-department employees “had complete administrative access to anybody's machine.” As noted, the company had also installed a firewall, which, according to Schneider, is “a program that monitors Internet traffic ··· from within the organization to make sure nobody is visiting any sites that might be unprofessional.” Monitoring was therefore routine, and the IT department reviewed the log created by the firewall “[o]n a regular basis,” sometimes daily if Internet traffic was high enough to warrant it. Upon their hiring, Frontline employees were apprised of the company's monitoring efforts through training and an employment manual, and they were told that the computers were company-owned and not to be used for activities of a personal nature. Ziegler, who has the burden of establishing a reasonable expectation of privacy, presented no evidence in contradiction of any of these practices. Like Simons, he “does not assert that he was unaware of, or that he had not consented to, the Internet [and computer] policy.”

Other courts have scrutinized searches of workplace computers in both the public and private context, and they have consistently held that an employer's policy of routine monitoring is among the factors that may preclude an objectively reasonable expectation of privacy. [At this point, the Court engages in discussion of large number of other court decisions. – LED Eds.]

In short, we see no reason to deviate from the reasoning of the cases cited above. The record evidence in this case establishes that the workplace computer was company-owned; Frontline's computer policy included routine monitoring, a right of access by the employer, and a prohibition against private use by its employees. [Court’s footnote: We do not hold that company ownership of the computer is alone sufficient to defeat an expectation of privacy. “Fourth Amendment privacy interests do not. . .turn on property interests.” Schowengerdt, 823 F.2d at 1333 (citations omitted). As always, the issue depends on what expectations may reasonably coexist with that ownership. At the least, we consider the combination of above-noted factors sufficient to defeat an expectation that would confer Fourth Amendment standing. At the same time, we do not hold that all the foregoing factors are necessary to defeat an expectation of privacy in a workplace computer.] As such, Ziegler had no objectively reasonable expectation of privacy in his workplace computer and thus no standing to invoke Fourth Amendment protection.

[Some citations omitted]

LED EDITORIAL COMMENT: While article 1, section 7 of the Washington constitution has been held in some circumstances to provide greater protection of personal privacy than does the Fourth Amendment, our guess is that the Washington Supreme Court would reach the same result if asked to engage in article 1, section 7 state constitutional analysis on these facts.

WHERE POSTAL INSPECTORS HAD NO OBJECTIVE BASIS FOR BELIEVING POSTAL EMPLOYEE WAS ARMED, THEIR FRISK WAS UNLAWFUL

U.S. v. Flatter, 456 F.3d 1154 (9th Cir. 2006) (Decision issued August 9, 2006)

Facts and Proceedings below: (Excerpted from 9th Circuit opinion)

Following a report by the Veterans' Administration (“VA”) that fourteen packages containing class II medications had been lost, postal inspectors began to investigate the possibility of mail theft at a postal facility in Spokane, Washington, through which all of the lost packages had been routed. Postal inspectors soon focused their attention on Andrew Flatter after a cross-comparison of work schedules revealed that he was among a handful of workers who had been present on nearly all of the dates on which mail was lost.

The inspectors focused on Bay 32, which housed sorted mail that was to be delivered to Coeur d'Alene, Idaho. The mail in Bay 32 was in large, rectangular mesh boxes, sometimes referred to as “crab pots.” Flatter's job was to drive a “tug,” a motorized vehicle used to move the crab pots around the facility. Because the mail in Bay 32 was already sorted, there was no need for Flatter to have any contact with the mail beyond loading the crab pot into the appropriate truck in the loading bay.

The postal inspectors placed six decoy packages into two of the crab pots in Bay 32. The decoys were placed on top of the already-sorted mail so that they would be easily visible, both to Flatter and to the inspectors, who were observing the decoys by video camera. These decoys were white on the outside and gray on the inside, so that if someone were to tamper with the package, the gray interior would become exposed and the two contrasting colors would be easily visible.

Flatter heightened the investigators' suspicions by handling the mail in the crab pots while he moved them onto the mail truck bound for Coeur d'Alene. Investigators also saw Flatter remove a white object from one of the crab pots as he was pushing them onto the truck, but he then moved further inside the mail delivery truck, placing him out of the inspectors' view. Inspectors then observed Flatter emerge from the truck and leave the area with his tug.

The postal inspectors then sought to retrieve their six decoy packages from Bay 32's crab pots, but they were only able to locate five. They also noted that the five decoys they recovered had been moved from the spots in which they had originally been placed.

Inspectors Schaap and Sheppard then summoned Flatter, who was in the break room, to question him about the missing decoy envelope. They questioned him briefly in the hallway, and the inspectors found his responses to be evasive and unsatisfying, so they asked Flatter to come with them to the postal inspectors' office for further questioning. Flatter agreed, but requested that a union representative be present; one was provided. When they had arrived at the office, the inspectors told Flatter that he was not under arrest, and that he was free to leave. The inspectors told Flatter that, in order to ensure their own safety, they were going to pat him down for weapons. The inspectors then asked the union representative whether he had weapons; he answered that he did not. The inspectors later testified that they searched Flatter because they thought the situation might turn confrontational and the inspectors, Flatter, and the union representative were meeting in a small room.