State Of Washington v. Marc Mckee , 413 P.3d 1049 ( 2018 )

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COURT OF APPEALS DIV I
STATE OF WASHIHGTON
2018 MAR 26 Ali 9:05
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, No. 73947-6-1
Respondent,
V. PUBLISHED OPINION
MARC DANIEL MCKEE,
Appellant. FILED: March 26, 2018
SCHINDLER, J. — An individual has a constitutional right of privacy to the contents
of a cell phone. The Fourth Amendment to the United States Constitution protects
privacy interests against an unreasonable search and seizure by requiring that a search
warrant describe with particularity "the place to be searched" and the "things to be
seized." Marc Daniel McKee contends the warrant to search his cell phone violated the
particularity requirement. The warrant contained broad descriptions of cell phone data
the police were allowed to search and seize, including "[i]mages, video, documents, text
messages, contacts, audio recordings, call logs, calendars, notes,[and]tasks"; and
authorized a "physical dump" of "the memory of the phone for examination." Because
the warrant violated the particularity requirement of the Fourth Amendment,the search
was unconstitutional. We reverse and remand to dismiss the convictions for four counts
of possession of depictions of a minor engaged in sexually explicit conduct.
No. 73947-6-1/2
Criminal Investigation
In 2012, A.Z. lived with her older brother Robert Gora and her mother Brenda
Brickley in Anacortes. Brickley was addicted to methamphetamine. Gora and 16-year-
old A.Z. were addicted to heroin and methamphetamine. A.Z. was using heroin and
methamphetamine on a daily basis during 2012.
In January 2012, Brickley introduced A.Z. to 40-year-old Marc Daniel McKee
during a "drug deal" for methamphetamine. McKee started spending a lot of time with
Brickley, Gora, and A.Z. and supplied them with methamphetamine. They would often
"get high" together. At the end of June, McKee left to go to Alaska for work.
When McKee returned two months later, he immediately contacted A.Z. McKee
told A.Z. he had heroin and methamphetamine. McKee and A.Z. spent three days
together at a Burlington motel using the drugs and engaging in consensual sex.
A.Z. and McKee spent three days together again in early September. They used
heroin and methamphetamine. McKee and A.Z. used McKee's cell phone to take
photographs and record three video clips of themselves engaging in sex.
In October 2012, 15-year-old J.P. called A.Z. to get drugs. J.P. and her friend
M.G. had run out of drugs and were going through withdrawal. A.Z. suggested J.P.
contact McKee. J.P. sent McKee a text message. J.P. said she did not have any
money. J.P. told McKee she was 16-years-old and would have sex with McKee in
exchange for heroin. McKee went to the address J.P. gave him to deliver the heroin.
J.P. and 16-year-old M.G. went into the bathroom to use the heroin and get high. After
M.G. left, McKee and J.P. engaged in sex.
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No. 73947-6-1/3
Brickley suspected A.Z. was having sex with McKee and confronted her. A.Z.
denied having sex with McKee. On October 28, A.Z. and Brickley argued. A.Z. sent
McKee a text message asking him to pick her up in five minutes. A.Z. said she "wanted
to get high" and "wanted to shoot up.. . so please have drugs ready." A.Z. told Brickley
she was going to a neighbor's house across the street "to get away and cool off."
McKee picked up A.Z. and they drove to a house in Mount Vernon where he was
staying.
Gora's girlfriend told Brickley she saw McKee pick up A.Z. in a truck. Brickley
was furious. Brickley, longtime father figure Christopher Seifert, and Gora drove to the
house in Mount Vernon. When McKee opened the front door, Seifert and Gora beat
McKee and took his cell phone. They retrieved A.Z. and left.
Gora accessed McKee's cell phone and found the video clips of A.Z. and McKee
having sex and the nude photographs of A.Z. Gora gave Brickley the cell phone.
After Brickley looked at the video clips and photographs on the cell phone, she
contacted the Mount Vernon Police Department. On October 30, Brickley met with
Detective Dave Shackleton. Brickley described the video clips and photographs she
saw on the cell phone. Brickley left the cell phone with Detective Shackleton. Brickley
later contacted Detective Shackleton to report that J.P. told her that McKee gave J.P.
drugs in exchange for sex. Brickley obtained a restraining order prohibiting McKee from
contacting A.Z.
Application for a Search Warrant
On October 31, Detective Jerrad Ely submitted an application and affidavit
(Affidavit) in support of probable cause to obtain a warrant to search McKee's cell
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No. 73947-6-1/4
phone to investigate the crimes of "Sexual Exploitation of a Minor RCW 9.68A.040" and
"Dealing in depictions of minor engaged in sexually explicit conduct RCW 9.68A.050."
The Affidavit states, in pertinent part:
On 10/29/12 Officer Reed investigated a pornography call that was
reported by Brenda Brickley to the Mount Vernon Police Department.
BRICKLEY told REED that her 16 year old daughter A.M.Z. DOB 11/15/95
has been hanging out with a 41 year old man named Marc McKee at 1127
S 15th Street in Mount Vernon and she had not returned home.
BRICKLEY said that she and her ex-husband, Christopher Seifert went to
that residence on 10/28/12 to take A.M.Z. home. BRICKLEY said that
they knocked on the door and pounded on the windows before MCKEE
came to the door. BRICKLEY said that she was so upset that she "beat
him up" and during this physical altercation MCKEE's cell phone fell from
his pocket. BRICKLEY said that she then took that cell phone... while
SEIFERT physically removed A.M.Z. from MCKEE's bedroom.
BRICKLEY said that they then left with the phone.
BRICKLEY said that on the morning of 10/29/12 she looked at the phone
taken from MCKEE and found many pictures of her daughter completely
naked in what she believes is MCKEE's room at 1127 S 15th Street.
BRICKLEY described one picture where A.M.Z. is without clothing and
tied up on the bed. She said that she found other pictures of young
looking girls in various stages of undress. BRICKLEY said that she also
viewed videos on the phone and believed some of them depicted MCKEE
having sex with A.M.Z. . . .
. .. BRICKLEY further described a phone call she got from J.N.P. who
said she had sex and oral sex with MCKEE at Steven EVERSALL's
residence in Anacortes on the corner of 6th and Oak in exchange for
heroin. She also said that she believed that 15 year old J.W. was possibly
involved with him. BRICKLEY provided Detective Shackleton with
MCKEE's cell phone described as a[n] LG with model number VX9100.
I am requesting to search:
The cell phone described as a[n] LG cell phone with model VX9100
currently being held at the Mount Vernon Police Department.
For:
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No. 73947-6-1/5
Images, video, documents, text messages, contacts, audio recordings, call
logs, calendars, notes, tasks, data/[1]nternet usage, any and all identifying
data, and any other electronic data from the cell phone showing evidence
of the above listed crimes. If compatible, the phone content will be copied
from the phone using forensic hardware and software that retrieves basic
identifier information about the phone and can forensically download
images, video, text messages, contacts, audio recordings, and other
additional data for the investigator to examine depending on support for
that particular phone. It is also possible to conduct a physical dump on
some supported phones obtaining all of the memory of the phone for
examination. If the cell phone is not supported by any forensic tools, the
phone will be examined manually.[1]
Search Warrant
On October 31, the court issued a search warrant. Based on the Affidavit of
Detective Ely, the district court judge found probable cause to believe McKee committed
or was committing the crimes of "Sexual Exploitation of a Minor RCW 9.68A.040" and
"Dealing in depictions of minor engaged in sexually explicit conduct RCW 9.68A.050."
The search warrant states:
WHEREAS, Detective J. Ely has this day signed an affidavit on
oath before the undersigned, David A. Svaren Judge, Skagit County
District Court, that he believes that a crime has been or is being
committed:
To wit(Type of Crime)
Sexual Exploitation of a Minor RCW 9.68A.040, Dealing in depictions of
minor engaged in sexually explicit conduct RCW 9.68A.050.
The warrant allows the police to obtain evidence from "[t]he cell phone described
as a[n] LG cell phone with model VX9100 currently being held at the Mount Vernon
Police Department" for the following "Items Wanted":
Images, video, documents, text messages, contacts, audio recordings, call
logs, calendars, notes, tasks, data/[1]nternet usage, any and all identifying
data, and any other electronic data from the cell phone showing evidence
of the above listed crimes.[2]
1 Boldface in original.
2 Boldface omitted.
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No. 73947-6-1/6
The search warrant authorizes the police to conduct a "physical dump" of the memory of
the cell phone for examination.
If compatible, the phone content will be copied from the phone using
forensic hardware and software that retrieves basic identifier information
about the phone and can forensically download images, video, text
messages, contacts, audio recordings, and other additional data for the
Investigator to examine depending on support for that particular phone. It
is also possible to conduct a physical dump on some supported phones
obtaining all of the memory of the phone for examination. If the cell phone
is not supported by any forensic tools, the phone will be examined
manually.
On November 7, 2012, the court filed a "Receipt of Execution of Search
Warrant." The Receipt of Execution of Search Warrant states the police conducted a
"Cellebrite Dump" of the cell phone on November 6. Cellebrite software obtains all
information saved on the cell phone as well as deleted information and transfers the
data from the cell phone to a computer.
Criminal Charges
The State charged McKee with three counts of possession of depictions of
minors engaged in sexually explicit conduct in the first degree in violation of RCW
9.68A.070(1) based on the three cell phone video clips, one count of possession of
depictions of a minor engaged in sexually explicit conduct of A.Z. in the second degree
in violation of RCW 9.68A.070(2) based on the cell phone photographs, one count of
commercial sex abuse of J.P. as a minor in violation of RCW 9.68A.100, three counts of
distribution of methamphetamine and/or heroin to a person under age 18 in violation of
RCW 69.50.406(1) and .401(2), and one count of violation of a no-contact order in
violation of RCW 26.50.110(1).
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No. 73947-6-1/7
Motion to Suppress
McKee filed a motion to suppress the evidence the police seized from his cell
phone. McKee asserted the search warrant violated the Fourth Amendment
requirement to describe with particularity the "things to be seized." McKee argued the
warrant allowed the police to search an "overbroad list of items" unrelated to the
identified crimes under investigation. McKee also argued probable cause did not
support issuing a search warrant of the cell phone for the crime of dealing in depictions
of a minor engaged in sexually explicit conduct.
The court entered an order denying the motion to suppress.3 The court found the
allegations in the Affidavit support probable cause that McKee committed the crimes of
sexual exploitation of a minor and dealing in depictions of minors engaged in sexually
explicit conduct. The court concluded the citation to the criminal statutes established
particularity and the search warrant was not overbroad. The order states:
[T]he information came to law enforcement from a known citizen informant
who had actually viewed the materials sought on the cell phone. She had
observed naked minors, sexual activity, and the [defendant]. There was
[probable cause]to investigate the phone to ascertain whether the images
had been distributed. It was very clear that some identifiable criminal
activity would be found on the phone. The statutes were referenced with
particularity. The [search warrant] is not overbroad.
The jury found McKee not guilty of distribution of methamphetamine and/or
heroin to M.G. The jury found McKee guilty as charged on all other counts.
Fourth Amendment
McKee asserts because the search warrant violates the Fourth Amendment, he
is entitled to dismissal of the four convictions of possession of depictions of a minor
engaged in sexually explicit conduct.
3 The court did not enter CrR 3.6 findings of fact and conclusions of law.
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No. 73947-6-1/8
The Fourth Amendment protects privacy interests against an unreasonable
search and seizure.
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be
violated, and no warrants shall issue, but upon probable cause, supported
by oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
U.S. CONST. amend. 1V.4
The Fourth Amendment was adopted in response to "indiscriminate searches
and seizures conducted under the authority of 'general warrants.'" Payton v. New York,
445 U.S. 573, 583, 100 S. Ct. 1371,63 L. Ed. 2d 639(1980)(quoting Boyd v. United
States, 116 U.S. 616, 625,6 S. Ct. 524,29 L. Ed. 746 (1886)). The "specific evil" was
the "'general warrant' abhorred by the colonists." Coolidge v. New Hampshire,403
U.S. 443, 467, 91 S. Ct. 2022,29 L. Ed, 2d 564(1971)(citing Boyd, 116 U.S. at 624-
30); State v. Perrone, 119 Wash. 2d 538, 545, 834 P.2d 611 (1992). "1[T]he problem
[posed by the general warrant] is not that of intrusion per se, but of a general,
exploratory rummaging in a person's belongings.. . .[The Fourth Amendment
addresses the problem] by requiring a "particular description" of the things to be
seized.'" Andresen v. Maryland, 427 U.S. 463, 480, 96 S. Ct. 2737,49 L.Ed.2d 627
(1976)5 (quoting Coolidge, 403 U.S. at 467).
[T]he Fourth Amendment categorically prohibits the issuance of any
warrant except one "particularly describing the place to be searched and
the persons or things to be seized." The manifest purpose of this
particularity requirement was to prevent general searches. By limiting the
authorization to search to the specific areas and things for which there is
probable cause to search, the requirement ensures that the search will be
4(Emphasis added.) Article I, section 7 of the state constitution prohibits government intrusion
upon "private affairs. .. without authority of law."
5 (Italics omitted)(alterations in original).
8
No. 73947-6-1/9
carefully tailored to its justifications, and will not take on the character of
the wide-ranging exploratory searches the Framers intended to prohibit.
Maryland v. Garrison, 480 U.S. 79, 84, 107 S. Ct. 1013, 94 L. Ed. 2d 72(1987).
The Fourth Amendment, as applied to the states through the Fourteenth
Amendment, imposes two express requirements on the government. Kentucky v. King,
563 U.S. 452, 459, 131 S. Ct. 1849, 179 L. Ed. 2d 865 (2011). "First, all searches and
seizures must be reasonable. Second, a warrant may not be issued unless probable
cause is properly established and the scope of the authorized search is set out with
particularity." Kentucky, 563 U.S. at 459; see also State v. Besola, 184 Wash. 2d 605, 359
P.3d 799 (2015).
The warrant in this case was based on probable cause and supported by a sworn
Affidavit.6 McKee contends the warrant to search his cell phone is overbroad and
violates the particularity requirement of the Fourth Amendment.
The purpose of the requirement to describe particularly "the place to be
searched" and the "things to be seized" is to make a general search "impossible and
prevent[]the seizure of one thing under a warrant describing another." U.S. CONST.
amend. IV; Marron v. United States, 275 U.S. 192, 196, 48 S. Ct. 74, 72 L. Ed. 231
(1927). The other purpose of the particularity requirement is to eliminate "the danger of
unlimited discretion in the executing officer's determination of what to seize" and to
prevent the issuance of a warrant "on loose, vague, or doubtful bases of fact." Perrone,
119 Wash. 2d at 546 (citing United States v. Blakeney, 942 F.2d 1001, 1026 (6th Cir.
1991); State v. Gronlund, 356 N.W.2d 144, 146 (N.D. 1984)), 548.
6 McKee concedes there was probable cause to support issuing a warrant for sexual exploitation
of a minor but asserts nothing in the Affidavit supported probable cause for dealing in the depictions of a
minor engaged in sexually explicit conduct.
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No. 73947-6-1/10
The Fourth Amendment requires particularity "[a]s to what is to be taken, nothing
is left to the discretion of the officer executing the warrant." Marron, 275 U.S. at 196.
"'The warrant must enable the searcher to reasonably ascertain and identify the things
which are authorized to be seized.'" Perrone, 119 Wash. 2d at 546 (quoting United States
v. Cook, 657 F.2d 730, 733(5th Cir. 1981)).
We review de novo whether the warrant authorizing the search and seizure of
McKee's cell phone meets the particularity requirement of the Fourth Amendment.
Perrone, 119 Wash. 2d at 549; State v. Reep, 161 Wash. 2d 808, 813, 167 P.3d 1156 (2007).
To determine whether a warrant lacks specificity, we examine particularity and breadth.
United States v. Kow, 58 F.3d 423, 426(9th Cir. 1995).
"Specificity has two aspects: particularity and breadth. Particularity is the
requirement that the warrant must clearly state what is sought. Breadth
deals with the requirement that the scope of the warrant be limited by the
probable cause on which the warrant is based."
United States v. Towne, 997 F.2d 537, 544(9th Cir. 1993)(quoting In re Grand Jury
Subpoenas Dated Dec. 10, 1987, 926 F.2d 847, 856-57 (9th Cir. 1991)). We construe
the language of the warrant in a "commonsense, practical manner, rather than in a
hypertechnical sense." Perrone, 119 Wash. 2d at 549.
The degree of specificity required varies depending on the circumstances of the
case and the types of items. States v. Spilotro, 800 F.2d 959, 963(9th Cir. 1986);
Perrone, 119 Wash. 2d at 546; State v. Stenson, 132 Wash. 2d 668, 692, 940 P.2d 1239
(1997). The advent of devices such as cell phones that store vast amounts of personal
information makes the particularity requirement of the Fourth Amendment that much
more important.
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No. 73947-6-1/11
In Riley v. California, U.S. —, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014),
the United States Supreme Court unambiguously held that a warrantless search of a
cell phone violates the Fourth Amendment. The Supreme Court describes cell phones
as "minicomputers" that collect in one place many distinct types of private information.
Riley, 134 S. Ct. at 2489. "The term 'cell phone' is itself misleading shorthand; many of
these devices are in fact minicomputers that also happen to have the capacity to be
used as a telephone." Riley, 134 S. Ct. at 2489. "Modern cell phones are not just
another technological convenience. With all they contain and all they may reveal, they
hold for many Americans 'the privacies of life.'" Riley, 134 S. Ct. at 2494-95 (quoting
Boyd, 116 U.S. at 630). The Court recognizes that the scope of the search of a cell
phone "would typically expose to the government far more than the most exhaustive
search of a house." Riley, 134 S. Ct. at 2491.7 In addition to the extraordinary amount
of information accessible through a cell phone, the Court noted the types of information
a cell phone might contain or be used to access. "A phone not only contains in digital
form many sensitive records previously found in the home; it also contains a broad array
of private information never found in a home in any form—unless the phone is." Riley,
134 S. Ct. at 2491.
In State v. Samalia, 186 Wash. 2d 262, 269, 375 P.3d 1082(2016), our Supreme
Court held that "cell phones and the information contained therein are private affairs
because they may contain intimate details about individuals' lives, which we have
previously held are protected under article 1, section 7" of the Washington Constitution.
"[A]n intrusion upon the occupant's expectation of privacy in those
premises should extend no further than is necessary to find particular
7 Emphasis in original.
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No. 73947-6-1/12
objects, and this is reflected in the rule that the described premises may
only be searched as long and as intensely as is reasonable to find the
things described in the warrant."
Perrone, 119 Wash. 2d at 545-468 (quoting 2 WAYNE R. LAFAVE, SEARCH AND SEIZURE §
4.6(a), at 605 (4th ed. 2004)). A warrant that implicates materials protected by the First
Amendment requires a heightened degree of particularity. Perrone, 119 Wash. 2d at 547
(citing Stanford v. Texas, 379 U.S. 476, 483, 85 S. Ct. 506, 13 L. Ed. 2d 431 (1965)).
The particularity requirement in such cases must be "accorded the most scrupulous
exactitude." Stanford, 379 U.S. at 485.
McKee contends the warrant violates the particularity requirement of the Fourth
Amendment by authorizing the police to search broad categories of data stored on the
cell phone without limitation. The State claims the warrant meets the particularity
requirement by limiting the search to the crimes that are cited on the first page of the
warrant, "Sexual Exploitation of a Minor RCW 9.68A.040" and "Dealing in depictions of
minor engaged in sexually explicit conduct RCW 9.68A.050," and to "evidence of said
crime. . . located" on the "LG cell phone with model VX9100." We disagree with the
State.
In Besola, the Washington Supreme Court held the citation to a statute did not
"modify or limit the items listed in the warrant" that "contained broad descriptions of the
items to be seized." Besola, 184 Wash. 2d at 609-10. The warrant in Besola identified the
crime of"'Possession of Child Pornography R.C.W. 9.68A.070.'" Besola, 184 Wash. 2d
8 Alteration in original.
12
No. 73947-6-1/13
at 608. The search warrant authorized the police to seize and search broad categories
of:
"1. Any and all video tapes, CDs,[91 DVDs,[10]or any other visual and or
audio recordings;
2. Any and all printed pornographic materials;
3. Any photographs, but particularly of minors;
4. Any and all computer hard drives or laptop computers and any
memory storage devices;
5. Any and all documents demonstrating purchase, sale or transfer of
pornographic material."
Besola, 184 Wash. 2d at 608-09. The court rejected the argument that the citation to the
statute modified or limited the list of items to be seized or provided guidance to the
officers executing the search. Besola, 184 Wash. 2d at 614-15. The court held, "[T]hese
descriptions were overbroad because they allowed officers to seize lawfully possessed
materials, such as adult pornography, when the descriptions could easily have been
made more particular" by using the precise statutory language to describe the materials
sought. Besola, 184 Wn.2d at 610,613.
Here, as in Besola, the warrant cites and identifies the crimes under investigation
but does not use the language in the statutes to describe the data sought from the cell
phone. The warrant lists the crimes under investigation on page one but separately lists
the "Items Wanted" on page two. As in Besola, the description of the "Items Wanted" is
overbroad and allowed the police to search and seize lawful data when the warrant
9 Compact discs.
10 Digital versatile discs.
13
No. 73947-6-1/14
could have been made more particular."
Next, the State claims that because detailed particularity was not possible, use of
the general identification of the data to be searched is permissible. "[T]he use of a
generic term or a general description is not per se a violation of the particularity
requirement." Perrone, 119 Wash. 2d at 547. Warrants that describe generic categories of
items are not invalid "if a more precise description of the items subject to seizure is not
possible" and "a more particular description of the items to be seized is not available at
the time the warrant issues." Spilotro, 800 F.2d at 963; Perrone, 119 Wash. 2d at 547.
11 RCW 9.68A.040 provides, in pertinent part:
Sexual exploitation of a minor—Elements of crime—Penalty. (1) A person is guilty of
sexual exploitation of a minor if the person:
(a) Compels a minor by threat or force to engage in sexually explicit conduct,
knowing that such conduct will be photographed or part of a live performance;
(b) Aids, invites, employs, authorizes, or causes a minor to engage in sexually
explicit conduct, knowing that such conduct will be photographed or part of a live
performance.
(Boldface omitted.)
Former RCW 9.68A.050 (2010) provides, in pertinent part:
Dealing in depictions of minor engaged in sexually explicit conduct. (1)(a) A person
commits the crime of dealing in depictions of a minor engaged in sexually explicit conduct
in the first degree when he or she:
(i) Knowingly develops, duplicates, publishes, prints, disseminates, exchanges,
finances, attempts to finance, or sells a visual or printed matter that depicts a minor
engaged in an act of sexually explicit conduct as defined in RCW 9.68A.011(4)(a)
through (e); or
(ii) Possesses with intent to develop, duplicate, publish, print, disseminate,
exchange, or sell any visual or printed matter that depicts a minor engaged in an act of
sexually explicit conduct as defined in RCW 9.68A.011(4)(a)through (e).
..
(2)(a) A person commits the crime of dealing in depictions of a minor engaged in
sexually explicit conduct in the second degree when he or she:
(i) Knowingly develops, duplicates, publishes, prints, disseminates, exchanges,
finances, attempts to finance, or sells any visual or printed matter that depicts a minor
engaged in an act of sexually explicit conduct as defined in RCW 9.68A.011(4)(f) or (g);
or
(ii) Possesses with intent to develop, duplicate, publish, print, disseminate,
exchange, or sell any visual or printed matter that depicts a minor engaged in an act of
sexually explicit conduct as defined in RCW 9.68A.011(4)(f) or (g).
(Boldface omitted.) The legislature amended RCW 9.68A.050 in 2017 to make dealing in depictions of a
minor engaged in sexually explicit conduct in the second degree a class B felony instead of a class C
felony. LAWS OF 2017, ch. 126,§ 3; RCW 9.68A.050(2)(b).
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No. 73947-6-1/15
"[Al description is valid if it is as specific as the circumstances and the nature of
the activity under investigation permit." Perrone, 119 Wash. 2d at 547; Stenson, 132
Wash. 2d at 692. We consider"'whether the government was able to describe the items
more particularly in light of the information available to it at the time the warrant was
issued.'" United States v. Mann, 389 F.3d 869, 878 (9th Cir. 2004)(quoting Spilotro,
800 F.2d at 963). In other words, whether the warrant could have been more specific
considering the information known to police officers at the time the warrant was issued.
See Perrone, 119 Wash. 2d at 553.
The detailed allegations in the Affidavit submitted in support of the search
warrant could easily meet the particularity requirement. The Affidavit described the
allegations related to the crimes under investigation, the video clips and photographs
located on the phone, and the time frame. But "an affidavit may only cure an overbroad
warrant where the affidavit and the search warrant are physically attached, and the
warrant expressly refers to the affidavit and incorporates it with 'suitable words of
reference.'" State v. Riley, 121 Wash. 2d 22, 29, 846 P.2d 1365(1993)(quoting Bloom v.
State, 283 So. 2d 134, 136 (Fla. Dist. Ct. App. 1973)); see also Groh v. Ramirez, 540
U.S. 551, 557-58, 124 S. Ct. 1284, 157 L. Ed. 2d 1068(2004)(A court may construe a
warrant with reference to a supporting application or affidavit only if the warrant attaches
and incorporates the documents by reference.). Because the Affidavit was not attached
or incorporated by reference, our determination of the particularity requirement is limited
15
No. 73947-6-1/16
to the warrant.12
We consider"'whether the warrant sets out objective standards by which
executing officers can differentiate items subject to seizure from those which are not.'"
Mann, 389 F.3d at 878 (quoting Spilotro, 800 F.2d at 963). A search warrant must be
definite enough that the executing officer can identify the property sought with
reasonable clarity and eliminate the chance that the executing officer will exceed the
permissible scope of the search. Stenson, 132 Wash. 2d at 691-92; Perrone, 119 Wash. 2d
at 546; see also State v. Keodara, 191 Wash. App. 305, 313, 364 P.3d 777(2015).
The warrant in this case was not carefully tailored to the justification to search
and was not limited to data for which there was probable cause. The warrant
authorized the police to search all images, videos, documents, calendars, text
messages, data, Internet usage, and "any other electronic data" and to conduct a
"physical dump" of "all of the memory of the phone for examination." The language of
the search warrant clearly allows search and seizure of data without regard to whether
the data is connected to the crime. The warrant gives the police the right to search the
contents of the cell phone and seize private information with no temporal or other
limitation. As in Keodara, "[t]here was no limit on the topics of information for which the
police could search. Nor did the warrant limit the search to information generated close
in time to incidents for which the police had probable cause." Keodara, 191 Wash. App. at
316.
12 The State cites a number of cases to argue a generic description of the data to be seized
meets the particularity requirement. See United States v. Schesso, 730 F.3d 1040 (9th Cir. 2013); United
States v. Triplett, 684 F.3d 500 (5th Cir. 2012); United States v. Richards, 659 F.3d 527(6th Cir. 2011);
United States v. Burgess, 576 F.3d 1078 (10th Cir. 2009). But in all of these cases, the warrant attaches
and incorporates the affidavit. At oral argument, the State conceded the Affidavit was neither attached
nor incorporated by suitable words of reference.
16
No. 73947-6-1/17
The warrant allowed the police to search general categories of data on the cell
phone with no objective standard or guidance to the police executing the warrant. The
language of the search warrant left to the discretion of the police what to seize. We
hold the search warrant violated the particularity requirement of the Fourth Amendment.
"'[A] search conducted pursuant to a warrant that fails to conform to the particularity
requirement of the Fourth Amendment is unconstitutional.'" Groh, 540 U.S. at 559
(quoting Massachusetts v. Sheppard, 468 U.S. 981, 988 n.5, 104 S. Ct. 3424, 82 L. Ed.
2d 737 (1984)).13
We reverse and remand to dismiss the four convictions of possession of
depictions of a minor engaging in sexually explicit conduct.14
s.cSbui\i ca,‘ scsi/
WE CONCUR:
13 Where a search warrant is an unconstitutional general warrant, the doctrine of severance does
not apply. Perrone, 119 Wash. 2d at 556-57.
14 Accordingly, we need not address McKee's argument that probable cause did not support
issuing the warrant for dealing in depictions of a minor engaged in sexually explicit conduct in violation of
ROW 9.68A.050.
17