State v. Denham

• Decision Date: 01 July 2021
• Docket Number: No. 98591-0,98591-0
• Citation: 489 P.3d 1138,197 Wash.2d 759
• Court: Washington Supreme Court
• Parties: STATE of Washington, Petitioner, v. Lynell Avery DENHAM, Respondent.

197 Wash.2d 759

489 P.3d 1138

STATE of Washington, Petitioner,

v.Lynell Avery DENHAM, Respondent.

No. 98591-0

Supreme Court of Washington.

Filed: July 1, 2021

Dennis John McCurdy, King County Prosecutor's Office, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, for Petitioner.

David Bruce Koch, Mary Swift, Nielsen Koch PLLC, 1908 E. Madison St., Seattle, WA, 98122-2842, for Respondent.

John Randall Tyler, Perkins Coie LLP, 1201 3rd Ave. Ste. 4900, Seattle, WA, 98101-3099, Anna Mouw Thompson, Perkins Coie LLP, Rachel Susan Dallal, Attorney at Law, 1201 3rd Ave. Ste. 4900, Seattle, WA, 98101-3095, Mark Bruns Middaugh, Attorney at Law, 600 University St. Ste. 3020, Seattle, WA, 98101-4105, for Amicus Curiae Washington Association of Criminal Defense Lawyers.

Antoinette M. Davis, Nancy Lynn Talner, American Civil Liberties Union of Washington, P.O. Box 2728, Seattle, WA, 98111-2728, for Amicus Curiae American Civil Liberties Union of Washington.

La Rond Baker, Katherine Elizabeth Hurley, King County Department of Public Defense, 710 2nd Ave. Ste. 200, Seattle, WA, 98104-1703, Brian Richard Flaherty, King County Department of Public Defense, 420 W. Harrison St. Ste. 202, Kent, WA, 98032-4491, for Amicus Curiae King County Department of Public Defense.

Alexandria Marie Hohman, The Washington Defender Association, 110 Prefontaine Pl. S. Ste. 610, Seattle, WA, 98104-2626, for Amicus Curiae Washington Defender Association.

González, C.J. ¶ 1 A valuable diamond was stolen from a jewelry store. Within days, Lynell Avery Denham sold that diamond. Police suspected Denham committed the burglary and got a warrant for his cell phone records. Cell site location information included in those records placed Denham's phone near the jewelry store around the time of the burglary. Denham contends that the affidavits supporting the warrant for his phone records lacked specific facts that would suggest evidence of a crime would be found in those records. He also contends a video interview where he discussed sophisticated burglary techniques was improperly admitted. We reverse the Court of Appeals and affirm Denham's conviction.

FACTS

¶ 2 Someone burgled Mallinak Designs Jewelers over Veterans Day weekend in 2016. Mallinak Designs had an elaborate security system and stored a great deal of valuable jewelry in a large, heavy safe. Before the burglary, someone had removed an interior lock on a utility room that was accessible through a roof hatch, and the burglar entered through that roof hatch while the store was closed. Doors were cut or sabotaged, the alarm system was deactivated, and the safe's locking mechanisms were disabled.¹ The burglar made off with a great deal of jewels and jewelry, including a 5.29 carat diamond with certification papers from the Gemological Institute of America. No suspect fingerprints were left, but Frank Mallinak, the store owner, did find a small plastic piece that he did not recognize.

¶ 3 Within days of the burglary, Denham sold the stolen 5.29 carat diamond, along with its certification paper work. This sale was the basis of a trafficking charge. Denham used one of his own cell phones several times to negotiate the sale of the diamond. Over the next few weeks Denham pawned or sold jewels and jewelry stolen from Mallinak Designs at various jewelry and pawn shops and purchased a new Range Rover with a large cash down payment. He also took to wearing "a huge blue stone gem necklace" that matched one taken in the burglary. Clerk's Papers (CP) at 6.

¶ 4 Meanwhile, Allan O'Neill, a Kirkland police detective, ran a search through a database that tracked sales at pawn shops and saw Denham had been pawning jewelry stolen from Mallinak Designs. Based on discussions with Frank Mallinak, the shop operators, and one of Denham's probation officers, Detective O'Neill successfully applied for a search warrant for Denham's registered address in Tacoma. The original warrant application was very detailed about the burglary and the sale of stolen jewels. Detective O'Neill also successfully sought authority to seize the Range Rover and to seize and image cell phones for a later search.

¶ 5 Denham was not home when the warrant was served. Police found drawings and schematics of safes, and new headlamps, one of which was missing a piece similar to that found at Mallinak Designs. They also seized the Range Rover. They did not find any cell phones.

¶ 6 After the search, the detective wrote an addendum to the warrant affidavit seeking five months of records associated with two phone numbers Denham had given to his probation officers and to the purchaser of the diamond. According to the original affidavit, the purchaser of the diamond had reached Denham at one of those numbers. The addendum sought subscriber information, payment details, billing records, inbound and outbound call records, stored communications, stored images, location data, physical addresses of cell towers used by the phones, connection logs, and much more. The State acknowledges, correctly, that this was overbroad both in time and scope. Both the original warrant application and the addendum contained what appeared to be boilerplate language describing the role of cell phones in people's lives and the information that can be gleaned from the phones and the phone records. The expanded warrant was granted.

¶ 7 The phone company's records included cell site location information that established multiple calls to or from Denham's phone were relayed through a cell phone tower that was about 550 feet from Mallinak's store around the time of the burglary. Denham lived in Tacoma, some distance away.

¶ 8 Denham was arrested and charged with second degree burglary and first degree trafficking in stolen property. Prior to trial, the State sought to admit recordings of two lengthy 2008 interviews with police where Denham discussed sophisticated methods of breaking into safes. These interviews explored the techniques Denham had previously used, including how he bypassed alarms, cut through Sheetrock, cracked safes, and avoided leaving evidence. The State sought to admit recordings of these interviews for identity, knowledge, and modus operandi.

¶ 9 The trial court did "not admit[ ] the various bank robberies as 404(b), but [did] admit[ ] the knowledge that [Denham] admitted to." 3 Verbatim Tr. of Proceedings (VTP) (Feb. 20, 2018) at 226. Specifically, the court admitted Denham's "admissions as to his skill set, which would make it possible for him to do these burglaries." Id. at 229.

¶ 10 Denham was convicted of second degree burglary and first degree trafficking in stolen property at a bench trial. The trial judge specifically cited the fact that Denham had made phone calls that were routed through the cell tower in the parking lot of Mallinak Designs around the time of the burglary. She also cited the lengthy interviews Denham had given on burglary techniques and his specialized knowledge on burglary.

¶ 11 For the first time on appeal, Denham challenged the sufficiency of the nexus between the cell phone and the crimes. The Court of Appeals found that the question was appropriate for review under RAP 2.5(a)(3) and that the warrant applications did not establish a sufficient nexus between the phone records and the crime. State v. Denham , No. 78704-7-I, slip op. at 5, 13, 2020 WL 2026799 (Wash. Ct. App. Apr. 27, 2020) (unpublished), https://www.courts.wa.gov/opinions/pdf/787047.pdf. The Court of Appeals also held that despite the fact the trial judge rejected the State's attempt to admit the 2008 recordings for identity or modus operandi, it used the recordings for that purpose without establishing that the crimes were specific enough for those purposes. Id. at 17. It found the errors were not harmless and reversed Denham's convictions. Id. at 18. We granted review. The Washington Association of Criminal Defense Lawyers, the American Civil Liberties Union of Washington, the King County Department of Public Defense, and the Washington Defender Association submitted an amici brief in support of Denham.

1. CELL PHONE RECORDS ²

¶ 12 Our constitutions protect individual privacy against state intrusion. U.S. CONST . amend IV ; WASH. CONST. art. I, § 7. State agents must have either the authority of a warrant or a well-established exception to the warrant requirement to lawfully intrude into an individual's private affairs. State v. Ladson , 138 Wash.2d 343, 350, 979 P.2d 833 (1999) (quoting City of Seattle v. McCready , 123 Wash.2d 260, 273, 868 P.2d 134 (1994) ). This constitutional protection extends to cell phone location information held by cell phone companies. See State v. Muhammad , 194 Wash.2d 577, 580, 451 P.3d 1060 (2019) ; Carpenter v. United States , ––– U.S. ––––, 138 S. Ct. 2206, 2220, 201 L. Ed. 2d 507 (2018). As the United States Supreme Court observed, "[T]he time-stamped data provides an intimate window into a person's life, revealing not only his particular movements, but through them his ‘familial, political, professional, religious, and sexual associations.’ " Carpenter , 138 S. Ct. at 2217 (quoting United States v. Jones , 565 U.S. 400, 415, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012) (Sotomayor, J., concurring)); see also Muhammad , 194 Wash.2d at 596, 451 P.3d 1060 (Wiggins, J., lead opinion) & 612 (Gordon-McCloud, J., opinion)

¶ 13 Here, officers had a search warrant. Denham challenges the adequacy of the affidavits supporting the application for that warrant. He contends the affidavits were based on generalizations and did not establish that evidence of wrongdoing would likely be found in his phone records.

¶ 14 "A search warrant should be issued only if the application shows probable cause that the defendant is involved in criminal activity and that evidence of the criminal activity will be found in the place to be searched." State v. Neth , 165 Wash.2d 177, 182, 196 P.3d 658 (2008) (citing State v. Thein , 138 Wash.2d 133, 140, 977 P.2d 582 (1999) ). There...