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By Jana Hill
Mill Creek Beacon Editor 

Mill Creek ponders Blake-decision impact

‘Not my pants’ defense puts council on alert


Last updated 4/8/2021 at 1:29pm

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Small amounts of illegal drugs are sitting in a legal gap right now, and Mill Creek is considering a fix. The Blake Decision that triggered the gap circles around the "not my pants" defense, common in the legal world.

A court ruling that frees the accused from legal consequences has the attention of the Mill Creek City Council.

The case is State v. Blake, and is based on the notion that the burden of proof for possession of a small amount of drugs now sits in the hands of the accuser. And the accuser is on the hook to make it right for past crimes due to the impact the decision will have on sentence duration. Offender scores will be reviewed for any completed convictions, and anyone incarcerated now due to past possession charges lengthening their sentence may be released.

Shannon Blake, the woman at the crux of State v. Blake, had a small amount of methamphetamine in the coin-pocket of her pants, court documents state. The incident tied to the case occurred in 2016, in Spokane, when police were investigating evidence of stolen vehicles. Blake said the pants were given to her by a friend who bought them from a thrift store. The Supreme Court accepted Blake’s explanation.

“The impact of this case is immense,” said Snohomish County Prosecutor Adam Cornell. “It has a profound impact on criminal justice,” law enforcement and the county budget.

Enforcement in Mill Creek is under review by the council.

“What we have here is a dangerous slippery slope,” said Councilmember Vince Cavaleri. “We are the ones that make the laws. We are the legislators. And we have the right to fix what’s broken right now.”

Cavaleri is a deputy for the Snohomish County Sheriff's Office.

He suggested envisioning people wandering around with heroin and meth without consequence.

Councilmember Mark Bond agreed a fix is needed for the drug problem. But he leaned toward support for the Supreme Court decision. Bond is a deputy for the Snohomish County Sheriff's Office.

“Nobody that accidentally got some drugs in somebody else’s pants that they just happened to be wearing that day should be charged with a felony,” Bond said.

Court documents say Blake was arrested during a search warrant in Spokane as police sought evidence of stolen vehicles. Blake acknowledged that the drugs were in her pocket, court documents state. She testified that she had never used methamphetamine, and her boyfriend told the court she does not use drugs.

“Her argument was the pants were not hers,” Cavaleri said of Blake. “Surprise, surprise” he said, disbelieving the claim.

Mill Creek is considering a city law that regulates drug possession, and Cavaleri lauded what Marysville did: reestablish simple possession as a criminal offense. Cornell said cities and counties can establish a gross misdemeanor as the maximum consequence, under the new state law.

If no action is taken by the legislature, Cornell said, a patchwork of drug laws will occur across the state.

Rep. John Lovick, D-Mill Creek, says the state must act, and that a number of bills are under consideration now.

“Lawmakers need to take action after the Blake decision by the state Supreme Court. Doing nothing could cause chaos for everyone involved, including our cities, counties, law enforcement, and people losing out on treatment.

“I spent decades in law enforcement, so I understand how complex these issues can be,” Lovick said. “I am watching carefully to make sure we get it right for everyone. We must get this right.”

What getting it “right” means is dependent on both budgeting and direction.

The state-level change that created a gap in drug laws circles around knowledge of possession, and who should take responsibility for proving intent. Without objective evidence, that puts law enforcement and courts on the hook for proving what someone is thinking. But the shift has reinvigorated the notion of continuing to wage a war on drugs, or pushing offenders toward a recovered life.

Illegal drug actions remain illegal

Paraphernalia remains illegal, as do larger amounts of felony-scheduled drugs. Cornell said other crimes involving larger amounts of drugs and drug trafficking are still in place.

“Right now, the drugs are legal but the bag is not,” said Jason Schwarz, director of Public Defense for Snohomish County. An officer “can arrest me for the bag” if it has drugs in it.

Schwartz said people usually envision needles and scales as illicit drug paraphernalia, but a Ziploc bag is the most common evidence for what was a crime – Possession of a Controlled Substance.

Schwarz said his office is fielding about 15 calls a day to revise cases impacted by the Blake decision. The key change, he said, will be sentence length. Longer sentences are issued when a person has prior convictions. When someone is charged with a crime, an “offender score” determines how long they will spend behind bars.

Cornell said some people will be reimbursed for fines related to their sentencing as well. The cost to municipalities will be felt. No figures or data were yet available.

The case has set off a conversation about how to handle drug crimes.

As Mill Creek City Council pondered the change, councilmembers expressed an array of value statements that ranged in emphasis: public safety, civil rights, treatment for substance misuse and addiction.

The discussion fell short of a consensus toward treatment, a mood shown on the county level where both prosecution and public defense view drug crimes as a complicated medical crisis.

When someone is arrested for a drug offense, it sends a message, Schwarz says.

“They have a substance use disorder. They need a doctor, not a prison guard,” Schwarz said.

Cornell took a proactive stance early in 2020, lifting the “2-gram rule” and making small amounts of drugs illegal again. His predecessor legalized small amounts to free up resources for more dangerous crimes. Cornell then implemented programming and requested funding to staff his department to push the most promising drug offenders to specialized courts. They are assessed for what they need and offered an option: accept the toil of addiction recovery or go to jail.

Adam Morgan, Mill Creek City councilmember, expressed support for treatment options due to his life experience.

He said his father was addicted to opiates, and the best man in his wedding struggled with addiction as well, and he hopes to see tools to help people “in their moment of crisis.”

‘Not my pants’

“The ‘not my pants’ type defense is not at all uncommon, and it’s been tried hundreds of times and has been unsuccessful,” prosecutor Chad Krepps told the City Council. “This time it was successful.”

Krepps was invited to a meeting as part of the contracted legal services for the city, Mill Creek Mayor Brian Holtzclaw said.

Schwartz is also familiar with the defense. He hears it with an empathetic mindset.

“I can’t count the number of times I have heard, in my office, ‘not my pants,’” he said.

Public defenders are assigned to clients who are in poverty. He said wearing someone else’s pants may seem odd to many, but people who are homeless tend to couch surf or live in cars, and “you don’t look a gift horse in the mouth” if someone offers free clothing.

The thrift-store-contraband claim in Blake has happened before as well. The Seattle Times reported on an incident in which a woman bought a crochet kit from a thrift store, and found a kilo of cocaine in it. She was not charged.

The court deciding Blake suggested she could have been. They argued that the law they were amending would criminalize “a letter carrier who delivers a package containing unprescribed Adderall; a roommate who is unaware that the person who shares his apartment has hidden illegal drugs in the common areas of the home; a mother who carries a prescription pill bottle in her purse, unaware that the pills have been substituted for illegally obtained drugs by her teenage daughter who placed them in the bottle to avoid detection.”

Schwarz mentioned that people living in their own home with enough money for legal defense are more likely to avoid legal trouble for the equitable activity. Unsheltered homeless people living in cars or carrying their possessions around with them are more likely to endure the brunt of drug law, he said.

“When your house is your car, and your car has windows, (your home is) far more transparent than if you live in a house,” Schwarz said.

In his law enforcement work, Bond has seen people who take help, and those who do not. He noted the addiction problem plays out differently for various groups.

Some “struggling with addiction are also involved in a lot of other activities – that's burglary, car prowl, shoplift, stolen cars, assaults on other folks – typically homeless type issues,” Bond said. “Wealthier people struggling with addiction are not put in a position to have to do that. It's different.”

And while drug crimes can create disqualifiers for both jobs and housing, Cornell warns that the two issues of drug addiction and homelessness are not necessarily conflated. It’s more complex than that.

Bond did not support the idea of an embedded social worker in Mill Creek. He said some people he has met with drug addiction issues will turn down help. In his view, that resource was not the best option.

“This is a really complicated problem, and there are no easy answers. If there were, we'd have already fixed it,” he said.


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