State v. McKee , 193 Wash. 2d 271 ( 2019 )

FITTE^
CLERKS OFFICE
This opinion was
Jiled for record
CFWASI^iSTQN
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DA R I 8r20
susan L. Carlson
Supreme Court Clerk
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHTNGTON,
NO. 96035-6
Petitioner,
V. EN BANC
MARC DANIEL McKEE,
Filed APR 1 8 2019
Respondent.
STEPHENS, J.—^A jury convicted Marc Daniel McKee of four counts of
possessing depictions of minors engaged in sexually explicit conduct (Possessing
Depictions). The Court of Appeals reversed those convictions on the ground that
police had used an overbroad search warrant to obtain the underlying cell phone
photos and videos. Instead of just remanding for suppression of the cell phone
evidence, the Court of Appeals ordered all the Possessing Depictions counts
dismissed, meaning retrial was barred. Although the Court of Appeals provided no
reasoning to justify that remedy, it appears to have thought dismissal was warranted
State V. McKee (Marc Daniel), 96035-6
because once the cell phone evidence was suppressed, there would be insufficient
evidence to sustain the convictions at a second trial.
The State petitioned for review of the Court of Appeals' decision to dismiss
rather than to suppress. We granted the State's petition for review and now reverse.
State V. McKee, 191 Wash. 2d 1012, 426 P.3d 749 (2018). The proper remedy
following suppression ofthe cell phone evidence was to vacate McKee's convictions
for Possessing Depictions and to remand to the trial court for further proceedings.
FACTS
McKee met A.Z. when he was 41 years old and she was 16 years old. At that
time, A.Z. had been using marijuana since she was 12 years old and
methamphetamine and heroin for about one year. Over the course ofseveral months
in 2012, McKee had repeated sexual encounters with A.Z. and also supplied her and
another minor with heroin and methamphetamine. In October 2012, A.Z.'s brother
took McKee's cell phone and discovered it had sexually explicit pictures and videos
of A.Z. A.Z.'s brother showed these images to A.Z.'s mother, who then turned the
phone over to police. Based on their conversations with A.Z.'s mother, officers
sought and obtained a warrant to search the cell phone for "[ijmages, video,
documents, text messages, contacts, audio recordings, call logs, calendars, notes,
tasks, data/internet usage, any and all identifying data, and any other electronic data
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State V. McKee (Marc Daniel), 96035-6
. . . showing evidence of the above listed crimes [sexual exploitation of a minor
(RCW 9.68A.040)and dealing in depictions of a minor engaged in sexually explicit
conduct(RCW 9.68A.050)]." CP at 229, 225.
The State charged McKee with five separate offenses, nine counts in all:
possessing depictions in the first degree (counts 1-3), possessing depictions in the
second degree (count 4), commercial sex abuse of a minor (count 5), delivery of
methamphetamine and/or heroin to a person under age 18(counts 6-8), and violation
of a no contact order(count 9).
Prior to trial, McKee moved to suppress the evidence recovered from the cell
phone on the grounds that the warrant was overbroad and not based on probable
cause. The trial court denied the motion. At trial,the prosecution introduced several
images from the cell phone through A.Z.'s testimony. She identified herself in the
images. A.Z.'s mother and brother also provided detailed testimony describing the
pictures and videos they viewed on the phone and identifying A.Z. as depicted
therein.
A jury convicted McKee of every charge except one count of delivery of a
controlled substance to a minor. The trial court sentenced him to 113 months' total
confinement. McKee appealed to Division One ofthe Court of Appeals, raising two
issues:(1)that the trial court erred by refusing to suppress the cell phone evidence
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State V. McKee(Marc Daniel), 96035-6
and(2)that trial counsel was ineffective at his sentencing hearing for failing to argue
that all the Possessing Depictions counts constituted the same criminal conduct.
McKee's briefing on the search warrant issue mentioned a remedy three times
in inconsistent terms. In his opening brief, McKee asserted that "all fruits from the
search of McKee's phone—^which formed the basis for the charges in counts 1
through A—should have been suppressed ...[and his] convictions on these counts
should be reversed and dismissed^ Br. of Appellant at 16 (Wash. Ct. App. No.
73947-6-1(2016))(emphasis added). But then in the conclusion ofthat brief, McKee
requested only that the appellate court vacate the convictions:"McKee's convictions
on counts 1 through 4 should be vacated based on the faulty warrant." Br. of
Appellant at 24. Consistent with the latter language,the State's response in the Court
of Appeals characterized McKee's briefing as requesting vacation and suppression:
"McKee contends that .. . the cell phone content seized pursuant to the warrant
should have been suppressed, and that the convictions,therefore,should be vacated."
Resp't's Br. at 3 (Wash. Ct. App. No 73947-6-1 (2017)). McKee's reply brief
repeated only that request: "For the reasons discussed in the opening brief and here,
this Court should vacate McKee's convictions on counts 1 through 4 based on the
faulty warrant." Reply Br. of Appellant at 9(Wash. Ct. App. No. 73947-6-1(2017))
(emphasis added).
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State V. McKee (Marc Daniel), 96035-6
Even though McKee had not briefed the issue, at oral argument the Court of
Appeals asked defense counsel whether, if the evidence stemming from the cell
phone warrant were suppressed, sufficient evidence would remain to sustain the
challenged convictions. The following one-minute exchange took place:
COURT: Was the only evidence that was introduced at trial for the
four counts that you're seeking [to have reversed] based on what the police
were able to obtain from the search warrant?
DEFENSE COUNSEL: That was the primary evidence, yes.
COURT: So, there was other evidence?
DEFENSE COUNSEL: Well, other evidence. Um, A.Z. had no
memory ofthese pictures or ofthe, the actual clips. But when she saw them,
she was able to identify herselfin them. That's some evidence. But she had
no recollection of them until she was shown them. So I'd say no, that
evidence came from what was, um found in the search warrant. Her mother
looked at the phone briefly and saw a few things, so perhaps she would have
been able to give a vague description that she saw a clip, some photos that
showed her daughter and somebody else, but, you know, this, these actual
photos and clips were the primary evidence, the bulk of the evidence.
COURT: So, if we excluded that evidence, is there sufficient
evidence?
DEFENSE COUNSEL: There's not, there would not be sufficient
evidence for the State to prove these convictions.
Wash. Court of Appeals oral argument. State v. McKee, No. 73947-6-1 (Sept. 14,
2017), at 7 min., 55 sec. through 8 min., 57 sec.(on file with court). During the
State's argument, the court did not inquire about the remedy of dismissal or the
sufficiency of any evidence, and the State did not address either issue.
Ultimately, the Court of Appeals agreed with McKee's Fourth Amendment
argument and reversed all four of his convictions for Possessing Depictions. State
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State V. McKee (Marc Daniel), 96035-6
V. McKee, 3 Wash. App. 2d 11, 30, 413 P.3d 1049 (2018); U.S. Const. amend.IV.
Instead of simply applying the exclusionary rule—^that is, vacating the convictions
and remanding to the trial court for further proceedings—^the Court of Appeals
ordered dismissal of all the Possessing Depictions counts. McKee, 3 Wash. App. 2d
at 30. It provided no reasoning explaining that outcome, but the remedy of dismissal
typically applies only when a conviction is reversed for insufficient evidence^ or the
government's misconduct has prejudiced the defendant and materially affected the
possibility of a fair trial.^ While it is not entirely clear, it appears from the oral
argument transcript that the Court of Appeals believed dismissal was required
because once the cellphone evidence was suppressed,the remaining evidence would
be insufficient to sustain the convictions on the possessing depictions counts.
The State filed a motion for reconsideration ofthe dismissal remedy and, for
the first time, detailed eyewitness testimony describing the explicit images of A.Z.
on McKee's phone. It argued that dismissal was inappropriate because that
testimony—i.e., the evidence that was not tainted by the invalid search warrant—
would be sufficient to sustain the Possessing Depictions convictions on retrial.
Resp't's Mot. to Recons.,State v. McKee, No. 73497-6-1, at 9(Wash. Ct. App. Apr.
^ State V. Wright, 165 Wash. 2d 783, 788,203 P.3d 1027(2009)(where appellate court
vacates a conviction for trial error rather than insufficient evidence, retrial is not barred).
2 State V. Marks, 114 Wash. 2d 724, 730-31, 790 P.3d 138(1990).
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State V. McKee (Marc Daniel), 96035-6
13, 2018) ("Dismissal of the four possession of depiction counts was not the
appropriate remedy given other evidence about the content of the videos and
photograph that was presented at trial and could be presented at a retrial."). In his
answer, McKee argued both that the State had waived the dismissal issue by failing
to raise it earlier and that the State's "sufficiency" argument failed on its merits.
Like the State, McKee argued that dismissal was warranted if the evidence that
remainedpostsuppression would be insufficient to sustain the Possessing Depictions
convictions. Unlike the State, he contended that the eyewitness testimony was
insufficient.
The Court of Appeals denied the motion for reconsideration, and we granted
the State's petition for review.
ANALYSIS
The question before us is whether the Court of Appeals erred when it
dismissed the Possessing Depictions counts after suppressing the cell phone
evidence, thus barring any possibility of a retrial. We hold that this was error. The
typical remedy for a Fourth Amendment violation is suppression, not dismissal.
This is true even when suppression would seem to exclude the bulk of the
prosecution's evidence. Under long-standing precedent, the double jeopardy clause
bars retrial only when all the evidence admitted at trial—including erroneously
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State V. McKee (Marc Daniel), 96035-6
admitted evidence—is insufficient to sustain the conviction at issue. State v. Jasper,
174 Wash. 2d 96, 120, 271 P.3d 876 (2012)(citing Lockhart v. Nelson, 488 U.S. 33,
40, 109 S. Ct. 285, 102 L. Ed. 2d 265 (1988)). The logic underlying this rule is that
a reversal for insufficiency is tantamount to an acquittal, but a reversal for any other
trial court error is not. Lockhart, 488 U.S. at 40-42. A reversal for insufficiency
indicates the government had its chance and failed to prove its case, while a reversal
for another trial error indicates only that the defendant was convicted through a
flawed process. Id. at 40-42. In the latter instance, the appellate court must
"recreate[]the situation that would have been obtained ifthe trial court had excluded
the [improper] evidence," leaving the State free to present new evidence at retrial, if
it chooses. Id. at 42. This rule applies whenever the erroneous admission of
evidence requires reversal, including when error stems from an illegal search or
seizure. E.g.,State v. Jefferson,291 Kan. 1151,1166,310P.3d331(2013)(applying
Lockhart analysis after reversing appellant's conviction and ordering suppression of
evidence obtained through illegal seizure). Thus,in a case like this one, an appellate
court does not evaluate the sufficiency of the untainted evidence remaining after
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State V. McKee (Marc Daniel), 96035-6
suppression. Provided the total evidence (tainted and untainted) was sufficient to
sustain the verdict, the remedy is limited to reversal and suppression.^
McKee urges us to affirm the Court of Appeals regardless of whether
dismissal was the appropriate remedy, arguing that the State waived any remedy
argument by failing to raise it before the motion for reconsideration. We decline
that invitation for two reasons. First, the facts here do not indicate any concession
or waiver by the State. McKee's briefing did not raise any issue of sufficiency (of
any quantum of evidence) and, when the court raised that issue sua sponte at oral
argument, it directed its questions only at McKee. Second, the Court of Appeals
committed obvious legal error when it ordered dismissal, distinguishing the situation
from one involving a factual concession. Even if the State had conceded that
dismissal was required, which it did not, the appellate court should have rejected
such a concession. See In re Pers. Restraint ofPullman, 167 Wash. 2d 205, 212 n.4,
218 P.3d 913 (2009) (rejecting State's concession both because it involved a
question of law and because it was "equivocal at best"). Any arguments about the
insufficiency of evidence prior to retrial must be directed to the trial court in the first
^ We are not concerned in this case with any issue of harmless error, as the State
made no argument that the admission of the cell phone evidence was harmless beyond a
reasonable doubt. Cf. State v. Gonzales Flares, 164 Wash. 2d 1, 18-19, 186 P.Sd 1038(2008)
(error may be harmless beyond a reasonable doubt in light of overwhelming untainted
evidence).
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State V. McKee (Marc Daniel), 96035-6
instance. See State v. Knapstad, 107 Wash. 2d 346, 356-57, 729 P.2d 48 (1986)
(describing procedure by which defendant may obtain pretrial hearing on the
sufficiency ofthe State's factual allegations to establish a prima facie case of guilt).
CONCLUSION
When an appellate court vacates a conviction that is obtained with illegally
seized evidence, the remedy is remand to the trial court with an order to suppress.
This is true regardless of whether the untainted evidence might independently
sustain a conviction. We reverse the Court of Appeals and remand to the trial court
for further proceedings consistent with the order to suppress evidence seized as a
result ofthe faulty warrant.'^
McKee requests appellate consideration of his same criminal conduct claim raised
initially in the Court of Appeals. We decline to address this claim because it is both moot
(the affected counts have been reversed) and premature(we do not know whether the State
will seek another trial). Additionally, this issue is not properly before us because McKee
did not raise it in his answer to the State's petition. RAP 13.7(b)(on review of Court of
Appeals decision, Supreme Court will review only the questions raised in the petition and
answer).
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State V. McKee (Marc Daniel), 96035-6
/ ^*
WE CONCUR:
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