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Sunday, April 4, 2004
Portraits: How the system failed | Christian Rainey
Attorney failed to challenge a questionable police stop

In late summer 1999, Christian Rainey, 33, was on her way to the popular Gorge Amphitheatre for a Tom Petty concert. It was a rare night out for Rainey — a Tacoma-area woman who had left a troubled relationship and was raising three children on part-time work and welfare.

She rode with her date over the Cascades, into Grant County — and into an arrest. Washington State Patrol troopers were posted at a freeway exit ramp, pulling cars over and, at times, searching for drugs. They stopped Rainey and her date, saying their front license plate was missing.

Robert Schiffner found an obvious flaw in Guillermo Romero's defense of Christian Rainey.
A trooper standing outside their car said he smelled marijuana. Illegal mushrooms and marijuana were found in the glove compartment.

Rainey couldn't afford a lawyer. So the court appointed her a public defender: Guillermo Romero.

Rainey insisted she was innocent, saying the drugs weren't hers. When Romero urged her to take a plea bargain, she says, she refused: "It's like being offered a piece of candy by a stranger."

At her trial, her date testified that the drugs were his. But a jury found Rainey guilty of possession; she was sentenced to 30 days in jail, with all but three days converted to community service.

Rainey says she had tried to be a good influence on her children, pushing school, fishing, books. Now she had to tell them she was a convicted drug felon, something that also would make it harder to find work.

When Moses Lake attorney Robert Schiffner reviewed the case for appeal, he thought the arrest appeared patently illegal. Washington law forbids "pretextual stops," in which police use the pretense of enforcing traffic laws to search for drugs or other contraband. In Rainey's case, police hadn't even issued a citation for the missing license plate.

But Romero never raised that issue. When Schiffner asked why, he says, Romero "just gave me a blank stare."

In 2001, Schiffner argued Rainey's case before the state Court of Appeals. The appellate judges voiced their own concerns:

• Why didn't Romero challenge the legality of the police stop?

• How could police smell unburned marijuana inside a glove compartment over the fumes of heavy concert traffic?

• Why did Grant County Prosecutor John Knodell say that Rainey's destination implied guilt? "That's what people do at the rock concerts," Knodell had told the jury. "They go and take drugs."

• What was going on in Grant County? Ineffectual public defense "seems to be part of a fairly ongoing pattern," one judge said.

In July 2001, the Court of Appeals reversed Rainey's conviction, citing Romero's failure to challenge the police stop.

But the court's ruling implied that the injustice done reached beyond Rainey. A "substantial public interest" was at stake, the court said, because the State Patrol planned to use similar stops at future concerts. However, without a challenge from the trial attorney, the appeals court lacked a sufficient evidentiary record to rule on the legality of those stops.

The State Patrol continued to use dragnets at selected concerts, and even added drug-sniffing dogs, according to documents obtained by Schiffner.

"In the same message they're talking about traffic safety and using dogs. Do the dogs bark louder when they see a cracked windshield?" Schiffner says.

The patrol's "Gorge Concert Action Plan" for 2000 included a section on "Threat Assessment/Intelligence." It noted the following:

• "Followers of Bob Dylan have historically been a high drug-usage group."

• "KUBE Jam historically brings the rap-mentality youth from the Puget Sound area."

• The Dave Matthews Band attracts "college-age youth. History shows extensive drug usage."

State Patrol Lt. Mike Warren says the stops help protect the public from intoxicated drivers. This summer, he says, the Patrol plans to "taper off" the use of dogs and widespread stops, although it will target certain concerts that it designates "Level 3" for heightened scrutiny.

— By Ken Armstrong and Florangela Davila, Seattle Times staff reporters

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