Tuesday, May 26, 2015

"Cornucopia of pharmacopeia" case found wanting by loquacious, baseball-loving judge

Posted By on Tue, May 26, 2015 at 11:31 AM


Last week, a Washington State Appeals court reversed a trial court's conviction and dismissed all drug charges against a man caught in a stolen pickup truck — with a stolen ATV in the bed. 

Heath Wisdom was arrested near Moxee, Washington, when Yakima County Sheriff's Deputy Nate Boyer's automated license plate reader recognized the Chevy pickup as stolen. Before putting the man in his cruiser, he found a meth pipe in his pocket and asked if there were any other drugs in the truck. Wisdom said there was more meth on the front seat. 

Boyer found a black "shaving kit type bag" sitting on the front passenger seat and, according to court documents, could see a wad of cash through a mesh screen on the side of the bag. Boyer then opened the bag and found a "cornucopia of pharmacopeia," the opinion says, including meth, heroin, cocaine and ecstasy. The cash added up to $2,700, and Wisdom admitted the bag was his. 

He was then convicted of three counts of possession of a controlled substance and one count of possession with intent to deliver. Wisdom appealed his convictions on the grounds that Boyer's warrantless search of his shaving kit violated Washington State's constitution against unlawful searches and seizures (Article 1, Section 7).

Last Tuesday, a State Appeals court overturned the convictions. In the majority opinion, Judge George Fearing wrote: "Despite the banality of the facts, this appeal raises a fundamental question concerning whether Washington State will be a police state, in which law enforcement officers employ their own discretion when determining to search property, or a state under which the rule of law with magistrates prejudging the validity of police searches."

Apparently having caught baseball fever, the loquacious judge then expounded on the court's reasoning with a comparison to Ted Williams: "Boston Red Sox outfielder Ted Williams, the last player to bat over .400, possessed exceptional eyesight. He could follow the trajectory and instantaneously pinpoint the position of a fastball better than any umpire. He also was a fair and honest ball player. Nevertheless, American League rules did not allow Williams to call his own balls and strikes. The appearance of fairness demanded employment of a neutral umpire. Fairness demands that, except in emergency circumstances, a review by a neutral magistrate precede a search by a law enforcement officer of private possessions."

Local defense attorney Bevan Maxey says he's not surprised by the Appeals Court's decision to dismiss the drug charges. 

"Historically in Washington, closed items that would contain private matters are not part of a general search," he says. "If you want to go into these things, you need the court's approval. The Washington Supreme Court has said that our state Constitution is written a bit different than the federal Constitution and is analyzed on a stricter basis when it comes to Fourth Amendment searches."

In the dissenting opinion, Judge Kevin Korsmo called the opinion "mind-boggling" and defended Boyer's search of the stolen vehicle. 

Wisdom's drug charges were dismissed, but the opinion makes to reference to charges stemming the stolen Chevy. 
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