State v. Clark

• Decision Date: 22 June 2021
• Docket Number: 54069-0-II
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. NICOLAS AARON CLARK, Appellant.

STATE OF WASHINGTON, Respondent, v. NICOLAS AARON CLARK, Appellant.

No. 54069-0-II

Court of Appeals of Washington, Division 2

June 22, 2021

UNPUBLISHED OPINION

WORSWICK, J.

Nicolas Aaron Clark appeals his convictions and sentence for three counts of sexual exploitation of a minor, two counts of first degree child molestation, and six counts of first degree possession of depictions of a minor engaged in sexually explicit conduct. Clark argues that the trial court erred when it denied his motion to suppress evidence seized from his electronic devices. He argues that the affidavit in support of a search warrant was insufficient to establish probable cause. Clark also argues that the independent source doctrine does not apply to another warrant police officers later obtained to cure any defects in the first warrant. Clark also raises several additional arguments in a statement of additional grounds for review (SAG).

We hold that the first warrant was supported by probable cause and accordingly, we do not reach whether the independent source doctrine applies to the later warrant. We further hold that Clark's SAG claims fail to raise any meritorious issues. Thus, we affirm.

FACTS

I NCMEC Tip And First Warrant

On August 30, 2018, Vancouver Police Department Sergeant Joe Graaff assigned Detective Chadd Nolan an investigative tip from the National Center for Missing and Exploited Children (NCMEC). The tip explained that Tumblr.com, an electronic service provider, submitted information to the NCMEC tip line that an image of suspected child pornography had been uploaded through its servers.^[1] Tumblr.com reported "that on or about June 23, 2018, a subject using the Uniform Resource Locator (URL) funrufus.tumblr.com attempted to, or did, pass an image identified as child pornography through their servers." Clerk's Papers (CP) at 235. The tip included two Internet Protocol (IP) addresses of the subject at the time of the incident. Based on the IP addresses police officers were able to verify that the subject spent time in Vancouver.

Based on this tip, Detective Nolan filed an affidavit for a search warrant on September 26, 2018. The affidavit requested subscriber information from Verizon and Comcast related to the IP addresses, as well as information from Tumblr.com and Yahoo related to the URL and e-mail accounts provided in the tip. Detective Nolan included information describing his experience and training in cybercrime, facts about Tumblr.com and the "funrufus" account, and the IP addresses. Detective Nolan's affidavit described the image:

The suspect image contains a single pre-pubescent female being directed to pose for the camera. The child is clothed in underwear. However the child has been instructed to pull aside her underwear exposing her vagina. The child's legs are separated making the focal point of the picture the vagina area.

CP at 132. The image was not attached to the affidavit.

Based on this affidavit, the trial court granted a search warrant (September 2018 warrant) to collect subscriber information from Verizon related to the suspect IP addresses. Verizon provided responsive data that showed accounts connected to the IP addresses were registered to a Camas address owned by Clark and his wife, and a business in Vancouver owned and operated by Clark. Verizon also provided a cellular telephone number associated with the suspect cell phone that matched Clark's number.

II. Second Warrant and Arrest

On October 1, 2018, based on the information collected from Verizon, police officers sought and received a second search warrant (October 2018 warrant) to search Clark's residence and business. The October 2018 warrant included permission to search any electronic devices discovered at the house or business.

On October 5, 2018, one team of police officers searched Clark's home while another team searched his business. Police officers rang the doorbell at Clark's home, and Clark answered the door. Officers explained to Clark that they had a search warrant and asked him to step outside, which he did. Clark had an iPhone on his belt that officers seized. Officers examined the phone and determined that the number matched the one provided by Verizon. A search of the contents of the phone revealed more than 1, 000 images depicting children engaged in sexual conduct. The phone also contained stored accounts, including a Tumblr.com application, with "funrufus" as the user name. Officers arrested Clark.

Subsequent analysis of other electronic devices registered to Clark and seized from the home, revealed other caches of child pornography. On October 9, 2018, the State charged Clark with five counts of first degree possession of depictions of a minor engaged in sexually explicit conduct and one count of second degree possession of depiction of a minor engaged in sexually explicit conduct.

Some images found on Clark's devices depicted a female child in a pink nightgown touching an adult penis, and other images depicted the hand of an adult male. By comparing bed sheets and underwear located in Clark's house to those depicted in the photographs, police determined that these images were created at Clark's residence.

III. Third Warrant and Amended Information

On December 4, 2018, Detective Nolan requested and received a third warrant (December 2018 warrant), based on the comparisons of the photographs, to re-enter the Clark residence to seize clothing and bed sheets observed in the images. Police officers also obtained photographs of Clark's exposed body. During the search, officers seized bed sheets and a nightgown matching those in the images. Clark's wife then identified a child in the images as someone she knew and was closely associated with.

On December 6, 2018, the State filed an amended information. In addition to the charges of possession of depictions of a minor engaged in sexually explicit conduct, the State added one count of first degree rape of a child, three counts of sexual exploitation of a minor, and two counts of first degree child molestation. The State also alleged sentencing aggravators of using a position of trust or confidence to facilitate the commission of the crimes, RCW 9.94A.535(3)(n), and the free crime aggravator under RCW 9.94A.535(2)(c).

IV. Motion to Suppress Evidence and Fourth Warrant

On February 15, 2019, Clark filed a motion to suppress all evidence collected during the course of the police investigation, arguing that Detective Nolan's affidavit in support of the September 2018 warrant failed to establish probable cause. In response to Clark's motion, Sergeant Graaff sought an additional warrant (April 2019 warrant) based on an affidavit signed by Sergeant Graaff that did not include any information gained as a result of the first warrant. Clark stipulated that none of the evidence seized following the first warrant was used in Sergeant Graaff's affidavit.

Sergeant Graaff's affidavit, filed in April 2019, again requested subscriber information from Verizon. The affidavit also included information from the tip regarding NCMEC and Tumblr.com, the information about the "funrufus" account, and the IP address information. Sergeant Graaff's affidavit contained a more graphic description of the image provided in the tip and did not refer to the child being directed or instructed to pose in any particular manner. The trial court signed the April 2019 search warrant. However, police did not serve the warrant on or seek the information from Verizon.

The trial court held a CrR 3.6 hearing on Clark's motion to suppress on August 19, 2019. The State argued that both the September 2018 warrant and the April 2019 warrant were supported by probable cause and that if the trial court disagreed, the evidence would still be admissible under the independent source doctrine. The trial court agreed with the State. In its conclusions of law regarding the September 2018 warrant's probable cause, the trial court concluded:

3.3 The description of the image of the juvenile female in question meets the definition of sexually explicit conduct found in RCW 9.68A.870.

3.4 The affidavit's description that suspected child pornography had been uploaded and that the URL funrufus.tumblr.com passed or attempted to pass an image identified as child pornography through their servers is a sufficient description of the defendant's alleged criminal activity.

3.5 While the use of the term "child pornography" may not satisfy the particularity requirement of the Fourteenth Amendment, the detailed description of the photograph found in the search warrant affidavit satisfies the particularity requirement.

. . . .

3.7. . . In the case at bench, the focus of the image is on a minor female's vagina with legs spread and underwear pulled aside. The inference is that the child was posed for sexual stimulation.

3.8 The search warrant affidavit establishes probable cause.

CP at 235-36.

Likewise, regarding the April 2019 warrant's probable cause, the trial court concluded:

4.1 Washington [S]tate recognizes the independent source doctrine as an exception to the exclusionary rule. State v. Coates, 107 Wn.2d 882, 887 (1987) (explaining that a search warrant may be upheld if the affidavit contains sufficient facts to establish probable cause independent of any illegally obtained information in the affidavit).

4.2 The second search warrant affidavit establishes probable cause.

CP at 236 (citation omitted).

V. Trial and Sentence

Clark waived his right to a trial by jury and the case proceeded to a bench trial on September 10, 2019. In Clark's waiver he stated, "I understand that by waiving my right to a jury trial, I am still presumed innocent but that the Judge alone will decide whether the State has proven my guilt...