Graf v. State ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 120,736
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
ORION GRAF,
Appellant,
v.
STATE OF KANSAS,
Appellee,
MEMORANDUM OPINION
Appeal from Douglas District Court; SALLY D. POKORNY, judge. Opinion filed October 9, 2020.
Affirmed.
Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant, and Orion Graf,
appellant pro se.
Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.
Before BRUNS, P.J., BUSER, J., and BURGESS, S.J.
PER CURIAM: Orion Graf appeals from the district court's denial of his K.S.A. 60-
1507 motion. Graf originally filed his motion in 2015, and it was summarily denied by
the district court. Subsequently, a panel of this court reversed the summary denial and
remanded this matter to the district court for an evidentiary hearing on his claim of
ineffective assistance of counsel. Graf v. State, No. 115,654, 2017 WL 2610757, at *7
(Kan. App. 2017) (unpublished opinion). After holding an evidentiary hearing on
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remand, the district court again denied Graf's motion. In this appeal, Graf contends that
the district court erred in denying him relief. Finding no error, we affirm.
FACTS
In this K.S.A. 60-1507 action, Graf seeks to set aside his plea of no contest to two
counts of breach of privacy. He is currently serving a 216-month sentence in another case
after pleading no contest to attempted rape and attempted aggravated criminal sodomy.
See State v. Graf, No. 116,755, 2018 WL 1352567, at *1 (Kan. App.) (unpublished
opinion), rev. denied 308 Kan. 1598 (2018). However, this appeal only involves Graf's
breach of privacy convictions for which he received probation.
This case was previously before this court in Graf, 2017 WL 2610757. In that
appeal, a panel of this court summarized the underlying facts as follows:
"[A]n employee at the Gap clothing store in Lawrence discovered a small camera in a
dressing room. The memory card in the camera contained videos of women in various
states of undress. The card also contained a photo of a man believed to be the person who
placed the camera in the dressing room, later identified as Graf. A Gap employee later
spotted Graf in the store and called the police. The police approached Graf at the store,
and Graf consented to be interviewed. After a few questions, the officer detained Graf
and, during a search of his person, seized two more memory cards and an adapter to
allow memory card data to be transferred to a computer. The officer also recovered an
Apple iPod Touch from Graf's person and saw in Graf's car in plain view two cameras
similar to the one discovered in the dressing room.
"The police then executed two search warrants for Graf's home and car, where
they recovered several computers and an encrypted hard drive that contained
pornographic videos." 2017 WL 2610757, at *1.
On July 18, 2013, the State charged Graf with 10 counts of breach of privacy in
violation of K.S.A. 2012 Supp. 21-6101(a)(6). Shortly before trial, the parties entered
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into a written plea agreement. Under the terms of the agreement, Graf agreed to enter no
contest pleas on two of the counts of breach of privacy. In exchange, the State agreed to
dismiss the remaining counts.
At his plea hearing, Graf acknowledged that he had read, signed, and initialed each
page of the 31-paragraph plea advisory. In addition, Graf acknowledged that he had
reviewed the plea agreement with his attorney; that he had sufficient time to talk with his
attorney about his case; and that he was satisfied with the advice provided to him by his
attorney. Moreover, Graf acknowledged that it was his desire to voluntarily enter into the
plea agreement and that no promises had been made to him other than those set forth in
writing or discussed during plea negotiations.
At the conclusion of the plea hearing, the district court accepted Graf's no-contest
pleas and found him guilty of two counts of breach of privacy. Several weeks later, the
district court imposed consecutive sentences of eight months for each conviction.
However, the district court suspended imposition of Graf's sentence and placed him on
probation for 24 months.
On June 30, 2015, Graf filed a pro se K.S.A. 60-1507 motion in which he asserted
numerous claims for relief. Significant to this appeal, Graf claimed that his attorney was
ineffective for failing to file a motion to suppress the evidence seized during the search of
his person and during the execution of the search warrants issued by the district court. On
December 11, 2015, the district court summarily denied Graf's K.S.A. 60-1507 motion—
without appointing counsel or holding an evidentiary hearing—on the grounds that his
claims were conclusory and without factual or legal support. The district court also found
the record in the underlying criminal proceeding showed that Graf "was fairly apprised of
his rights, and the plea was fairly and understandingly made."
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Graf timely appealed the summary denial of his K.S.A. 60-1507 motion to this
court. On appeal, he alleged that the prosecutor had breached the terms of the plea
agreement, that he was incompetent to enter his no-contest pleas, and that his counsel was
ineffective in failing to seek to suppress the evidence against him. Although the panel
rejected Graf's first two claims, it found that he was entitled to a hearing on the issue of
whether his attorney's "performance was deficient in failing to file a motion to suppress."
2017 WL 2610757, at *6. Accordingly, the panel reversed the summary denial as to this
issue and remanded the matter to the district court for an evidentiary hearing. 2017 WL
2610757, at *6-7.
On remand, the district court appointed counsel to represent Graf and allowed the
parties to file additional memoranda in support of their respective positions on the issue
of ineffective assistance of counsel. On May 18, 2018, Judge Sally D. Pokorny—who had
signed the search warrants during the investigation of Graf's underlying criminal case—
held an evidentiary hearing on Graf's K.S.A. 60-1507 motion. The majority of the
testimony presented at the hearing related to the scope of the search warrants and whether
Graf's counsel should have moved to suppress any or all of the evidence seized during the
execution of the warrants.
Officer Eric Barkley—who initially investigated a "key fob" camera found in the
dressing room of The Gap clothing store—testified that he responded after a store
employee called the police. The employee reported what she believed to be a small
camera that had been discovered in a dressing room. Officer Barkley testified that he
went to the store and after speaking to the employee, he was shown the small device
found in the dressing room. The officer removed it from the dressing room and took it
back into the office of The Gap to dust it for latent prints. After doing so, he took it back
to the law enforcement center to view the images contained on the device. According to
Officer Barkley, he considered the camera to be abandoned property that had been left at
the store.
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In addition, Officer Josh Leitner, who assisted Officer Barkley in the investigation,
testified regarding the training he had received at the Regional Computer Forensic
Laboratory. The officer testified that the camera contained images of several females in
various states of undress as they tried on clothes in the store's dressing room. Officer
Leitner also testified that the camera contained images of a man—wearing black cargo
pants and a blue hooded sweatshirt—who appeared to be placing the camera in the
dressing room. Because the camera did not have a method of transmitting the images to
another source, the officer believed that it was likely the person who placed the camera in
the dressing room would come back to the store. As a result, Officer Leitner showed the
images of the man to The Gap employees and asked them to contact him if they saw him
at the store.
Officer Leitner testified that he received a call from a Gap employee later that day
reporting that a man who appeared to be the one seen in the images taken from the hidden
camera was at the store. According to Officer Leitner, he approached Graf—who was
wearing the same clothing as the man depicted on the video—as he left the store. Graf
accompanied Officer Leitner to the law enforcement center for a voluntary interview.
After Graf answered a few questions, Officer Leitner placed him under arrest. Officer
Leitner testified that during a search incident to arrest, the officer found two memory
cards and an iPod in Graf's pockets. However, he did not view the contents of these items
until a warrant was issued by the district court. Officer Leitner also testified that when he
looked inside the window of a car that had been identified as belonging to Graf, he saw
several small cameras laying on the passenger seat that appeared to be similar to the one
found in The Gap's dressing room.
Detective Scott Slifer—who prepared the two supporting affidavits and the two
search warrants signed by Judge Pokorny on the night of February 23, 2013, and in the
early morning hours of February 24, 2013—also testified at the evidentiary hearing. The
detective testified regarding his extensive training and experience in forensic
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examinations of computers and other electronic devices. This experience included
training in the examination of encrypted hardware and software data as well as the
disguising of computer files. Detective Slifer also testified that as part of his training, he
had been certified as a forensic examiner for the FBI's computer analysis response team
and he estimated that he had completed "over a thousand hours of specialized training in
computer forensic examination."
According to Detective Slifer, the supporting affidavits presented to the district
court to obtain the search warrants contained a detailed factual description of the events
that would support the elements of the crime of breach of privacy. He acknowledged that
one of the affidavits did not list a specific crime. However, Detective Slifer pointed out
that the affidavit seeking a warrant for computer and other electronic equipment from
Graf's office expressly stated that the officers were investigating the crime of breach of
privacy and cited to the criminal breach of privacy statute.
Although Detective Slifer acknowledged that the language in the search warrants
was somewhat broad in scope, he explained that because the investigation included the
creation, storage, transmission, and viewing of digital media, it would be difficult to
tailor the warrants more narrowly. Detective Slifer testified that small cameras like the
one found in The Gap dressing room are often bought on the internet and often require
someone to install software to run them. In addition, the detective testified that even if a
camera does not require separate software, it still interacts with a computer operating
system. As such, software is still required to view the images from the camera or
associated memory cards.
Detective Slifer testified that these types of files are frequently stored on a
computer and often leave remnants even after they are deleted. The detective testified that
in cases involving digital media and storage, suspects often try to hide their activities by
encrypting, password-protecting, disguising, or renaming files. Passwords and encryption
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are also frequently managed by software. Knowing that Graf was a Ph.D. student and
teaching assistant at the University of Kansas—as well as knowing that Graf's wife had
alleged that he had also secretly filmed her—Detective Slifer testified "it probably was
likely that there would be some sort of hiding or securing of the files."
Specifically, Detective Slifer explained the need to use broad language in the
search warrants as follows:
"Pictures, videos, I know can be hidden. We have had extensive training on that.
Operating system files tell us if the pictures or videos were viewed, registry information,
things like that. Software programs layer on top of that . . . to enable somebody to view it.
Internet history tells me whether or not he is interested in this type of thing, including
buying cameras and things like that. I can't think of a type of computer file that a video or
picture couldn't be hidden as or renamed to be or a portion of that hard drive that a
computer or video file or the evidence that we were looking for could reside on. . . . I did
not believe that I could restrict myself further to conduct a search."
John Frydman—who had served as Graf's trial counsel—also testified at the
evidentiary hearing. Frydman—who had been practicing law since 1986 and was retained
by Graf—testified about his experience as a criminal defense attorney. Frydman testified
that based on the facts of this case and his knowledge of the law, he did not consider the
search warrants issued in this case to be overbroad. He acknowledged that he never
specifically discussed with Graf the possibility of filing a motion to suppress. Frydman
explained that in light of the evidence against Graf, the primary defense strategy was to
obtain a favorable plea deal. In Frydman's opinion, Graf ultimately received a good plea
deal. He believed this to be especially true in light of the negative publicity the case had
received in Lawrence and surrounding communities.
At the conclusion of the evidentiary hearing, the district court took the motion
under advisement. In addition, the district court granted the parties leave to file additional
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written briefs. On January 15, 2019, the district court issued a comprehensive 12-page
memorandum decision denying the K.S.A. 60-1507 motion.
In its memorandum decision, the district court found that the search warrants
executed in this case were not overly broad and authorized the seizure of "data" contained
on Graf's computer and other electronic devices. Likewise, the district court found that
"[t]here is no basis to believe the evidence supporting eight of the ten counts would be
suppressed." The district court noted that Graf had conceded that "a motion to suppress
would not have affected the admission of the videos taken at The Gap."
The district court further found that it was "much too speculative" to suggest that
Graf's trial counsel could have obtained a better plea deal than the one obtained. Instead,
the district court noted that Graf's argument was based on nonviable hindsight. The
district court also found that this was "a very high profile case" and that Graf had
received "a favorable plea that resulted in probation." Thus, the district court concluded
that the assistance provided by Graf's counsel was effective.
Thereafter, Graf filed a timely notice of appeal.
ANALYSIS
The sole issue presented in this appeal is whether the district court erred in
denying Graf's K.S.A. 60-1507 motion. Through his appellate counsel, Graf contends that
the search warrants issued by the district court in this case were overbroad and that trial
counsel was ineffective due to his failure to file a motion to suppress the evidence seized
during the execution of the warrants. In a pro se supplemental brief, Graf also contends
that items were illegally seized from his person incident to his arrest.
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In response, the State contends the district court's conclusions about the
effectiveness of Graf's trial counsel are supported by substantial competent evidence. The
State argues that a motion to suppress would not have succeeded because the search
warrants were not overly broad under the circumstances presented in this case. In
addition, the State asserts that any deficiencies in the specificity of the warrants were
cured by the supporting affidavits and the presence of the affiant, Detective Slifer, at the
time the warrants were executed. Finally, the State suggests that under the good-faith
exception, the evidence should not be suppressed.
When a district court denies a K.S.A. 60-1507 motion after holding an evidentiary
hearing—as the district court has now done in this case—we apply a mixed standard of
review. We first must determine whether the district court's findings of fact are supported
by substantial competent evidence and are also sufficient to support its conclusions of
law. Substantial evidence is relevant evidence that a reasonable person could accept as
adequate to support a conclusion. See State v. Doelz, 309 Kan. 133, 138, 432 P.3d 669(2019). On appeal, we are not to reweigh the evidence or reassess the credibility of
witnesses. State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018). If we find that
there is substantial competent evidence, we must then perform a de novo review of the
district court's ultimate legal conclusions. Fuller v. State, 303 Kan. 478, 485, 363 P.3d
373 (2015).
The Sixth Amendment to the Constitution of the United States—made applicable
to the states under the Fourteenth Amendment—guarantees the right to effective
assistance of counsel in criminal proceedings. Miller v. State, 298 Kan. 921, 929, 318
P.3d 155 (2014). The right to counsel is also protected by section 10 of the Kansas
Constitution Bill of Rights. State v. Cheatham, 296 Kan. 417, 430, 292 P.3d 318 (2013).
The purpose of this guarantee is to "'ensure that criminal defendants receive a fair trial.'"
State v. Galaviz, 296 Kan. 168, 174, 291 P.3d 62 (2012).
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To prevail on a claim of ineffective assistance of counsel, the movant needs to
show "(1) that the performance of defense counsel was deficient under the totality of the
circumstances, and (2) prejudice, i.e., that there is a reasonable probability the jury would
have reached a different result absent the deficient performance. [Citations omitted.]"
State v. Salary, 309 Kan. 479, 483, 437 P.3d 953 (2019); see Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 (1984).
Judicial scrutiny of trial counsel's performance is highly deferential, and we are to
presume that an attorney's conduct fell within the broad range of professional assistance.
State v. Betancourt, 301 Kan. 282, 306, 342 P.3d 916 (2015). The benchmark in
evaluating a claim of ineffective assistance is "whether counsel's conduct so undermined
the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result." Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007).
The United States Supreme Court has recognized that "[t]here are countless ways
to provide effective assistance in any given case" and that even the most seasoned
attorneys likely "would not defend a particular client in the same way." Strickland, 466
U.S. at 689. As such, "Monday-morning quarterbacking is not a sport encouraged by the
laws governing ineffective assistance claims. [Citation omitted.]" United States v.
Caracappa, 614 F.3d 30, 48 (2d Cir. 2010). Instead, "'a fair assessment of attorney
performance requires that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to
evaluate the conduct from counsel's perspective at the time.'" State v. Davis, 277 Kan.
309, 315, 85 P.3d 1164 (2004).
A defendant's Sixth Amendment right to counsel extends to the plea-bargaining
process. Lafler v. Cooper, 566 U.S. 156, 162, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012).
As in other phases of a criminal case, a defendant is entitled to the effective assistance of
competent counsel during plea negotiations. 566 U.S. at 162. Although counsel plays an
important role in the negotiation process, it is ultimately the defendant who has the
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authority to determine whether to accept or reject a plea offer. Flynn v. State, 281 Kan.
1154, 1163, 136 P.3d 909 (2006).
In Kansas, courts use an objective standard of reasonableness in resolving a claim
that defense counsel failed to file appropriate pretrial motions. As such, courts are to
examine both the merits of the underlying issues as well as the reasons given by the
attorney for not filing a particular motion. "When defense counsel has no sound basis to
believe that a pretrial motion would have merit and has no reasonable evidence or
argument upon which to base such a motion the failure to make it cannot be equated with
ineffective assistance of counsel." Chamberlain v. State, 236 Kan. 650, Syl. ¶ 5, 694 P.2d
468 (1985).
Here, Graf argues that his trial counsel acted unreasonably by failing to seek to
suppress the evidence obtained as a result of the search warrants issued by the district
court to obtain information from his computer and other electronic devices. Significantly,
Graf does not argue that his attorney should have filed a motion to suppress the
evidence—including the images from the hidden camera—found in the dressing room at
The Gap store. Likewise, it is undisputed that the search warrants were signed by the
district judge and that they were supported by affidavits. Rather, Graf suggests that the
search warrants were overly broad.
The language in a search warrant should be "sufficiently definite to enable the
searcher reasonably to ascertain and identify the things authorized to be seized." State v.
Francis, 282 Kan. 120, 126, 145 P.3d 48 (2006) (citing Steele v. United States, 267 U.S.
498, 503-04, 45 S. Ct. 414, 69 L. Ed. 757 [1925]). Importantly, the level of specificity
required depends on the circumstances of each case. Francis, 282 Kan. at 126. A search
warrant containing broad or even generic language can be held valid "'when the
description is as specific as the circumstances and the nature of the activity under
investigation permit.'" Murray v. State, No. 109,854, 2014 WL 3843092, at *11 (Kan.
11
App. 2014) (unpublished opinion) (citing United States v. Hargas, 128 F.3d 1358, 1363
[10th Cir. 1997]). As the Tenth Circuit Court of Appeals has noted, search warrants
should "'describe the items to be seized with as much specificity as the government's
knowledge and circumstances allow.'" United States v. Riccardi, 405 F.3d 852, 862 (10th
Cir. 2005) (quoting United States v. Leary, 846 F.2d 592, 600 [10th Cir. 1988]).
In Crowther v. State, 45 Kan. App. 2d 559, Syl. ¶ 9, 249 P.3d 1214 (2011), a panel
of this court found:
"The Fourth Amendment to the United States Constitution requires that a search warrant
describe the things to be seized with sufficient particularity to prevent a general
exploratory rummaging in a person's belongings. A warrant for computer searches must
affirmatively limit the search to evidence of specific types of material. Officers must be
clear as to what it is they are seeking on the computer and conduct the search in a way
that avoids searching files of types not identified in the warrant."
Officers conducting searches of a computer "'cannot simply conduct a sweeping,
comprehensive search of a computer's hard drive.'" State v. Rupnick, 280 Kan. 720, 732,
125 P.3d 541 (2005) (quoting United States v. Walser, 275 F. 3d 981, 986 [10th Cir.
2001]). However, as a practical matter "because of individuals' ability to 'hide, mislabel,
or manipulate files' . . . 'there may be no practical substitute for actually looking in many
(perhaps all)' files and locations during a search of digital storage. [Citation omitted.]"
United States v. Perez, 712 Fed. Appx. 136, 139 (3d Cir. 2017) (unpublished opinion).
Based on a review of the search warrants and supporting affidavits, as well as the
transcript of the evidentiary hearing on Graf's K.S.A. 60-1507 motion, we find the
warrants were not overbroad in light of the type of investigation that the police were
conducting.
At the evidentiary hearing, Detective Slifer explained that he attempted to
maintain a balance between wording the language of the search warrant as narrowly as
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possible with the need to search for hidden files containing images relating to the
investigation into the hidden camera found in the dressing room at The Gap store. It is
important to note that by the time the search warrants were signed, Graf had been
identified as the person in the video who appeared to be installing the camera in the
dressing room to record people changing clothes without their knowledge or consent.
Although the camera found in the dressing room had a memory card in it, there
was no way to view the recording without a using a computer or similar device. Detective
Slifer testified that any interaction between the memory card and a computer or similar
device would likely leave behind "artifacts" that could be traced back to the camera found
in the dressing room. In the supporting affidavit, he stated that he knew from experience
that videos from hidden cameras, such as the one found in The Gap, are often stored on
computers to which the suspect has exclusive access, such as computers in his home or
office. Further, Detective Slifer pointed out that those viewing images on a computer or
similar device have the ability to encrypt, mislabel, or otherwise disguise the files in
order to make them more difficult to identify during a criminal investigation.
As Detective Slifer explained during his testimony at the evidentiary hearing:
"Files can be hidden inside other files in a process called steganography. Files
can be renamed and they can be put in hidden partitions. They can be encrypted. Mr. Graf
did, in fact, have an encrypted drive that I saw. That was part of this case, a Western
Digital encrypted drive. They can be deleted. They can be software programs that hide
them or make them present as if they are deleted, taking special software to look at them.
There are numerous ways to hide files on a computer."
Detective Slifer further testified that because such files are often hidden, it was
important to have access to any files or history where evidence of the crime being
investigated might be found on Graf's computer or similar devices. Here, the crime under
investigation was the clandestine recording of images of people in various states of
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undress in a dressing room at a clothing store. Accordingly, the crime being investigated
included the creation, storage, transmission, and review of electronic data on Graf's
computer or similar devices.
Detective Slifer was asked if the search warrant provided him the authority to look
at other items that were not related to this criminal investigation. In response, the
detective testified:
"Obviously, if I run into another crime, to be honest, I would have gotten a
piggyback [warrant]. I only searched for evidence of the breach of privacy, and that is
borne out by the exam of the evidence I extracted. I would have gotten a piggyback if
there would have been any other crime. But other than that, I didn't need another warrant
to complete the examination for the breach of privacy."
Although the supporting affidavit for the first search warrant—covering the
electronic devices that Graf kept at his home—did not identify a specific crime, it did
contain detailed facts about the hidden camera found in the dressing room at The Gap and
about the investigation. This included the fact that Graf appeared to have been the one
who hid the small camera there. The supporting affidavit for the second search warrant—
covering the electronic devices that Graf kept in his office—not only included the
information contained in the first affidavit but also expressly identified breach of privacy
in violation of K.S.A. 2012 Supp. 21-6101 to be the crime under investigation. Moreover,
Detective Slifer testified that "[t]he affidavit limits me for the crime that I described to
the Judge and I wouldn't have exceeded that."
In support of his position that a motion to suppress would have been successful,
Graf cites Crowther, in which a panel of this court determined a search warrant to be
overbroad. In that case, the defendant was convicted of attempted aggravated kidnapping,
aggravated arson, aggravated battery, criminal threat, and seven counts of violating a
protective order. Unlike this case, the crimes under investigation in Crowther were not
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computer-related crimes. Although it was unclear what the law enforcement officers
investigating that case were seeking to recover, they obtained a warrant to search the
defendant's computer. In finding the search warrant to be overbroad, the panel found that
it "allowed 'a general exploratory rummaging' through Crowther's computer hardware and
software devices which the warrant requirement was designed to prevent. [Citation
omitted.]" Crowther, 45 Kan. App. 2d at 567. Nevertheless, the panel ultimately
concluded that the district court did not err in denying the defendant's K.S.A. 60-1507
motion because he failed to show prejudice. 45 Kan. App. 2d at 573.
We find it to be significant that the crimes under investigation in Crowther did not
involve the creation, storage, or viewing of digital files. In this case, Detective Slifer was
specifically looking for digital images or other information related to the small camera
that was placed in the dressing room at The Gap store. As discussed above, such images
can be—and often are—hidden in various ways on computers or other similar devices.
Unlike Crowther, we do not find that the search warrants issued by the district court in
this case "allowed a general exploratory rummaging" of Graf's computers but instead
authorized a search in an attempt to find the images and other information related to the
investigation of the camera hidden in the dressing room at The Gap store.
In construing the language of a warrant, context is important. See United States v.
Burgess, 576 F.3d 1078, 1091 (10th Cir. 2009). Numerous courts have held that if the
context necessarily limits an otherwise broad description of the items to be searched, the
warrant is not invalid. See United States v. Brooks, 427 F.3d 1246, 1252 (10th Cir. 2005);
State v. Henning, No. 115,832, 2017 WL 3837224, at *6-7 (Kan. App. 2017)
(unpublished opinion) (recognizing broad language of warrant but noting that the warrant
as a whole indicated the search should be limited to evidence of the crime of child
pornography). Here, when viewed in context, the search warrants and supporting
affidavits state the physical location of the search, the types of electronic devices to be
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searched, and the nature of the investigation. In fact, the second affidavit sets forth the
specific crime under investigation.
There is no dispute that Detective Slifer—the person who signed the supporting
affidavits under oath—was present and executed the search warrants. It is also undisputed
that Detective Slifer signed the search warrant returns as well as the inventory sheets
setting forth the items that were seized. In addition, as discussed above, he testified at the
evidentiary hearing about his involvement in obtaining and executing the search warrants.
Consequently, we find that any vagueness in the search warrants was cured by the
attached affidavits and the affiant's direct involvement in the execution of the warrants.
See State v. Dye, 250 Kan. 287, 290-91, 826 P.2d 500 (1992) (failure to indicate which
unit of residence should be searched cured by information in the affidavit and the fact
that the affiant of the affidavit was present at the execution of the warrant).
Furthermore, the good-faith exception to the exclusionary rule applies in cases in
which an officer reasonably relies on the validity of the search warrant and the warrant is
later found to be invalid. State v. Hoeck, 284 Kan. 441, Syl. ¶¶ 1, 2, 163 P.3d 252 (2007);
see United States v. Leon, 468 U.S. 897, 908-09, 104 S. Ct. 3405, 82 L. Ed. 2d 677(1984). The primary purpose of the exclusionary rule is to deter police misconduct. State
v. Sanders, 310 Kan. 279, 300, 445 P.3d 1144 (2019). The exclusionary rule should not
be used to bar evidence obtained by law enforcement officers acting in objectively
reasonable reliance on a search warrant issued by a detached and neutral magistrate
unless: (1) the magistrate issuing the warrant was deliberately misled; (2) the magistrate
wholly abandoned the detached or neutral role of a judge; (3) there was so little indicia of
probable cause contained in the supporting affidavit that it was unreasonable for the
officers to believe the warrant was valid; or (4) the warrant so lacked specificity that
officers could not determine the place to be searched or the items to be seized. State v.
Zwickl, 306 Kan. 286, Syl. ¶ 3, 393 P.3d 621 (2017); see Burgess, 576 F.3d at 1096
16
(good-faith exception applied where officers confined search to evidence of the crime and
made every effort to comply with the law at every step of the investigation).
In this case, there is no allegation of misconduct by either the police or the district
court. Rather, a review of the record reflects that the investigating officers attempted to
comply with the law in preparing the supporting affidavits as well as in executing the
search warrants. Moreover, Detective Slifer testified: "When I searched data, I was
searching for evidence of a crime as listed in the affidavit, the voyeurism, the
eavesdropping, and I looked in places that would . . . possibly contain evidence of that."
There is nothing in the record to indicate that Slifer rummaged through all of Graf's
personal information or attempted to uncover unrelated criminal activity. Instead, the
record reflects that Detective Slifer acted in good faith and consistent with the
information supplied to the district court in the supporting affidavits. Under these
circumstances, we agree with the district court that it is likely that the good-faith
exception would have prevented the suppression of the evidence obtained from Graf's
computers and other electronic devices.
After considering the evidence presented at the hearing, the district court found
that the search warrants were not overly broad and that it was unlikely that the evidence
seized pursuant to the warrants would have been suppressed. The district court also noted
that Graf had conceded that "a motion to suppress would not have affected the admission
of the videos taken at The Gap." Furthermore, the district court found that it was "much
too speculative" to suggest that Graf's trial counsel could have obtained a better plea deal
than the one obtained. Ultimately, the district court concluded that the assistance
provided by Graf's trial counsel was effective and that he assisted his client in negotiating
a good plea deal that allowed Graf to avoid a prison sentence on these charges. We find
that the district court's findings of fact are supported by substantial competent evidence
and that the district court appropriately applied the law relating to a claim of ineffective
assistance of counsel.
17
Even if Graf had shown that his trial counsel was ineffective for failing to suppress
some or all of the evidence seized pursuant to the search warrants issued by the district
court, he has failed to show any prejudice resulting from his attorney's allegedly deficient
performance. It is important to recognize that Graf failed to present any evidence to
establish that he was prejudiced by his attorney's failure to file a motion to suppress in the
underlying criminal case. Although he was present, Graf did not testify at the K.S.A. 60-
1507 hearing. In addition, Graf has not even identified what specific evidence he believes
should have been suppressed. See State v. Williams, 299 Kan. 509, 539, 324 P.3d 1078(2014) (appellate courts do not independently search the record or attempt to guess the
facts the appellant believes support his or her general allegations), overruled on other
grounds by State v. Dunn, 304 Kan. 773, 375 P.3d 332 (2016).
As indicated above, even if the district court suppressed all of the evidence
obtained as a result of the search warrants—which is unlikely—the State still could have
presented an overwhelming amount of evidence of multiple counts of breach of privacy.
This evidence included the discovery of the camera hidden in the dressing room, the
images of female victims in various states of undress, the images of Graf placing the
camera in the dressing room, the fact that Graf returned to the store, the items found in
plain view in his car, the statements he made to the police prior to his arrest, and the
statements made to the police by his wife. As the State points out, it is unlikely that a
motion to suppress would have excluded the evidence supporting the charges to which he
ultimately pled, which related to hiding the camera in the dressing room and to filming
his wife without permission. In fact, Graf appears to acknowledge in his brief that the
evidence supporting these charges would still be admissible. Instead, he suggests that his
bargaining position may have changed if some of the evidence had been suppressed.
Thus, based on our review of the record, we conclude that Graf has failed to establish
prejudice.
18
In a supplemental pro se brief, Graf also challenges the pat down search conducted
by Officer Leitner following his arrest. At the evidentiary hearing, Officer Leitner
testified that he patted down Graf after placing him under arrest. In doing so, he found an
iPod and two small memory cards. Although the district court noted that the mandate
from this court was restricted to the suppression of evidence seized as a result of the
search warrants, it allowed questioning regarding the search incident to arrest over the
State's objection. Our review of this court's previous opinion confirms the fact that the
mandate was restricted to the sole claim regarding the search warrants. See Graf, 2017
WL 2610757, at *6.
Under the search incident to arrest exception to the warrant requirement, a law
enforcement officer making a lawful arrest can search the arrestee and the area within the
arrestee's immediate control without obtaining a warrant. See State v. Torres, 308 Kan.
476, 484, 421 P.3d 733 (2018). This exception to the warrant requirement has two
purposes: (1) protecting officer safety by allowing a search for weapons an arrestee
could reasonably access; and (2) preventing an arrestee from destroying or concealing
evidence of the crime of arrest. 308 Kan. at 482-83 (citing Chimel v. California, 395 U.S.
752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685 [1969]). After reviewing the officer's
testimony and the video of the arrest, we believe the search of Graf's pockets immediately
after he was placed under arrest falls within this exception.
In addition, a review of the record reveals that Graf's trial counsel was not asked
about the search incident to arrest. As such, there is no evidence to support Graf's
contention that the search was illegal, nor is there evidence regarding the thought process
of Graf's trial counsel regarding this issue. Without more, we conclude that even if the
issue was properly before the district court on remand, Graf has failed to establish
deficient performance or prejudice relating to the failure to file a motion to suppress the
evidence seized during the search incident to arrest. Where a movant cannot demonstrate
the prejudice prong of Strickland, the court need not consider whether error actually
19
occurred. See Edgar v. State, 294 Kan. 828, 830, 283 P.3d 152 (2012). Prejudice is
demonstrated by a showing that there was a reasonable probability that, but for counsel's
error, the outcome of the hearing would have been different. 294 Kan. at 829. Graf has
not met this standard.
Affirmed.
20