News broke last week of a May 2015 arrest for current New York Gian kicker Josh Brown. The NFL has suspended Brown for the first game of the season. When the NFL announced the suspension last week it sent the media, and me, on a rush to make public records requests to the King County Sheriff’s Office and the King County Prosecutor’s Office to find out more about the incident that took place more than a year ago. The public records request produced the entire investigation of Brown after he was arrested for domestic violence assault in 2015 and, as reported by ESPN and numerous other media outlets, the records also allege numerous other allegations of abuse beyond the May 2015 allegation. So, why are we just now hearing of Brown’s arrest?
Based on public records obtained, and a search of the Court’s Judicial Information System, it appears that Brown was arrested on May 22, 2015 for allegedly assaulting his ex-wife. Washington has a mandatory domestic violence arrest law (RCW 10.99.030 and RCW 10.31.100) where police must arrest a suspect when there is probable cause to believe a domestic violence assault has occurred. After being arrested and booked into the King County Jail, Brown posted $2,000 bail and was released. On May 27, 2015, there was a court hearing in King County District Court where the prosecutor announced they were declining to file charges.
In King County District Court the prosecutor routinely declines to file charges right away because the statute of limitations is two years for gross misdemeanors (three years for felonies), and the prosecutor likes to have their investigation complete before officially filing criminal charges (although charges may be filed right away on more serious offenses and also where the suspect is a risk to flee the state). The prosecutor never did file charges against Brown and based on a May 24, 2016 memo the prosecutor sent to the King County Sheriff’s Office, it appears they will not be filing any charges without receiving statements from additional witnesses (which they were never able to obtain). Technically, the statute of limitation on the case has not run so the prosecutor could still charge Brown with a crime. But this appears to be extremely unlikely to occur. The NFL does not need proof beyond a reasonable doubt to impose a suspension like the prosecutor does to convict someone of a crime. So in the end, Brown was arrested for the assault, but he has never been charged with a crime.
So why is so much information available to the public when no charges were even filed. And is there anything Brown could have done about it (or Brown’s ex-wife, who may not be happy about the release of so much personal information about her as well)? RCW 42.56.540 does allow a person to seek an injunction from the court which would prevent the release of a public record if they can show the “examination [of the record] would clearly not be in the public interest and would substantially and irreparably damage any person, or would substantially and irreparably damage vital governmental functions.” So, in theory, Brown could have filed a motion in court and if granted, the injunction would have prevented the world from obtaining these police reports. Now that the records are public, it is too late to seek such an injunction so Brown will have to live with all of the allegations being made public.
In State v. Samalia, the Washington Supreme Court ruled that when a suspect abandons their cell phone, the police can search the contents of the phone without a warrant. In the case, the defendant was driving a vehicle that the police confirmed was stolen. After the police stopped the vehicle, the defendant jumped out and started running away, but left his cell phone in the car. The police grabbed the phone and started calling people on the phone’s contact list (because the defendant had not password protected the phone). One of the defendant’s contacts answered and the cops tricked this person by saying they were trying to get the phone back to the owner. This other person showed up at the police station and was arrested. The police then used this other person’s phone to call the defendant’s phone, and were able to determine the defendant’s identity because it showed up on the other person’s calling screen.
The Supreme Court ruled that cell phones, and text messages found on cell phones, are “private affairs” under the Washington Constitution, meaning the police must have a warrant before searching a cell phone, or must show that an exception to the warrant requirement applies. The police did not have a warrant to search the phone in this case, so the question remained whether there was an exception to the warrant requirement that applied to the facts of the case. The prosecutor argued that the abandonment doctrine applied, which states that a person loses their privacy interest in abandoned property (in other words, police can search abandoned property without a warrant). The defense argued that the abandonment doctrine should not apply to cell phones, particularly since today, cell phones are essentially personal computers. Justice Yu dissented and wrote that because modern cell phones contain so much personal information besides just call records and texts, the abandonment doctrine should not apply. The majority of the court didn’t buy the defendant’s argument, and pointed out that voluntarily abandoned property is treated differently than lost or mislaid property (police still need a warrant to search lost property). Determining if property is lost or abandoned depends on the facts, but the court noted that property is generally not deemed abandoned if there is an intent by the person to recover the property. In this case, the court found that the defendant had clearly abandoned the property by leaving his cell phone in a stolen vehicle and fleeing the police on foot.
In this case, the search of the cell phone revealed the identity of the defendant as the driver of the stolen vehicle. But what if the search of the cell phone revealed evidence of other crimes totally unrelated to the stolen car? What if the search revealed child pornography or evidence of drug dealing? The holding of State v. Samalia would not suppress this other evidence, even though it was obtained without a warrant, because abandoning your cell phone now gives the police carte blanche to look through the entire contents of your phone and use this information against you in court.
In State v. Nelson Division II of the Court of Appeals recently ruled that a stolen gift card can be considered an “access device” under RCW 9A.56.040(1)(d), which prohibits a theft of an “access device” and RCW 9A.56.160(1)(c), which prohibits possessing a stolen “access device.” RCW 9A.56.010(1) defines “access device” as “any card, plate, code, account number, or other means of account access that can be used alone or in conjunction with another access device to obtain money, goods, services, or anything else of value, or that can be used to initiate a transfer of funds, other than a transfer originated solely by paper instrument.” Typically, a prosecutor will charge a person with stealing or possessing a stolen “access device” when the person has a stolen credit or debit card. RCW 9A.56.040(1)(d) and RCW 9A.56.160(1)(c) make this a felony. Without these statutes, having a stolen credit card on you would only be a gross misdemeanor (Theft 3rd) because the value of the actual plastic card is minimal (less than a dollar).
In State v. Nelson, the defendant worked at K-Mart and was grabbing gift cards next to the register, putting money on the gift card without putting money in the register, and pocketing the gift card (in other words, gifting herself money on the gift card for free). The total she gifted herself was less than $750 (if the amount she stole was more than $750, the prosecutor could have possibly charged her with felony Theft in the Second Degree under RCW 9A.56.040, but with less than $750, it is a gross misdemeanor Theft in the Third Degree). The prosecutor wanted to stick the defendant with a felony but to do so, had to argue the gift card was an “access device.” The trial court agreed with the defendant and dismissed the case, but the court of appeals reversed.
It will be interesting to see how prosecutors use this decision in the future. If you steal someone’s Starbucks latte valued at $3, you have committed Theft in the Third Degree, a gross misdemeanor. But if you steal someone’s Starbucks gift card with $3 on the gift card, you have committed two felonies; Theft of Access Device and Possession of Stolen Access Device. The differences between a gross misdemeanor and two felonies can potentially be extreme (community service versus years in prison).