State v. Friedrich

• Decision Date: 23 August 2018
• Docket Number: No. 35099-1-III,35099-1-III
• Citation: 425 P.3d 518
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Jay Karl FRIEDRICH, Appellant.

425 P.3d 518

STATE of Washington, Respondent,

v.Jay Karl FRIEDRICH, Appellant.

No. 35099-1-III

Court of Appeals of Washington, Division 3.

FILED AUGUST 23, 2018

Jodi R. Backlund, Manek R. Mistry, Backlund & Mistry, P.O. Box 6490, Olympia, WA, 98507-6490, for Appellant(s).

James Lyle Nagle, Office of the Pros. Attorney, 240 W. Alder St., Ste. 201, Walla Walla, WA, 99362-2807, Teresa Jeanne Chen, Attorney at Law, P.O. Box 4242, Pasco, WA, 99302-4242, for Respondent(s).

PUBLISHED OPINION

Siddoway, J.

¶ 1 Anyone engaged in "providing an electronic communication service or a remote computing service" to the public in interstate commerce is required to report any known child pornography violation to an electronic tip line, where it is made available to law enforcement. See 18 U.S.C. § 2258A. Jay Friedrich was convicted of five counts of dealing with or possessing depictions of a minor engaged in sexually explicit conduct after Microsoft filed such a report, which was investigated by the Walla Walla County sheriff.

¶ 2 Mr. Friedrich appeals denial of his motion to suppress the critical evidence against him. He argues that the information reported by Microsoft and the warrant affidavit's generalizations about collectors of child pornography did not provide probable cause for a search of his residence and that the affidavit failed to satisfy the particularity required by the Fourth Amendment to the United States Constitution.

¶ 3 The totality of information provided by the affidavit, including commonsense inferences about where and how long child pornography is likely to be retained, provided probable cause to issue the warrant. For that reason, and because any issue of overbreadth is avoided by the severability doctrine, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶ 4 On March 30, 2016, Microsoft reported to the National Center for Missing and Exploited Children (NCMEC)¹ that it became aware that a user of Skype,² user name "jkf6418," uploaded a media file believed to contain a depiction of a minor engaging in sexually explicit conduct. Clerk's Papers (CP) at 23. Microsoft's report indicated that a search of Skype for the username "jkf6418" yielded three results, all belonging to a "Jay Friedrich." Id. The one result identifying "Jay Friedrich['s]" city of residence identified it as Walla Walla, Washington. The NCMEC report indicated that a search of the username "jkf6418" on Spokeo, a people search website that aggregates data from other services, also yielded three results. One, a dating profile on an online dating site, described "jkf6418" as a 51-year-old bisexual single male from Walla Walla and as 6'1? and of average build.

¶ 5 After it was determined that the Internet Protocol (IP) address most likely came from Walla Walla, the information was passed along to the Walla Walla County Sheriff's Department and investigation of the report was referred to Detective Eric Knudson on April 12. Detective Knudson viewed the media file, a picture of what appeared to be an approximately 9- to 11-year-old girl engaged in "sexually explicit ... conduct" as defined by RCW 9.68A.011(4). CP at 24.

¶ 6 On April 13, Detective Knudson obtained a search warrant to locate the subscriber information for the IP address, which was registered to Charter Communications. Charter Communications responded to the warrant on April 21, identifying the service subscriber as Jay Jensen. Detective Knudson learned from a search of police records that in 2012 Jay Jensen reported finding child pornography on his roommate's computer. The report listed Mr. Jensen's roommate as Jay Friedrich. Mr. Friedrich was not charged as a result of that report, as the investigation produced insufficient evidence for prosecution. Detective Knudson nonetheless reviewed the pictures obtained in the investigation and determined that they were of teenage and preteen girls. Detective Knudson's research also revealed that Mr. Friedrich is a registered sex offender.

¶ 7 Detective Knudson learned from police records that Mr. Friedrich lived in Walla Walla and was described as 52 years of age, 6'1? in height, and as weighing 155 pounds. His birthdate was recorded as 04/18/1964, which, along with his initials, jkf, correlated to the "jkf6418" account (04/18/19 64 ).

¶ 8 A month after NCMEC received the report from Microsoft, on April 27, Detective Knudson applied for a warrant to search Mr. Friedrich's residence. In his 24-page supporting affidavit, Detective Knudson provided his background and training, the foregoing information, and information on the typical operational practices of electronic and internet service providers (collectively "ISPs"). He testified that pursuant to terms of their user agreements, ISPs "typically monitor their services utilized by subscribers[ t]o prevent their communication networks from serving as conduits for illicit activity" and "routinely and systematically attempt to identify suspected child pornography that may be sent through [the ISP's] facilities." CP at 17. He testified that when an image or video file is believed by an ISP to be child pornography as defined by 18 U.S.C. § 2256, a "hash value" of the file can be generated by operation of a mathematical algorithm that is unique to the file—"in essence, the unique fingerprint of that file." CP at 17. A database of hash values for files suspected to be child pornography enables ISPs to automatically detect when files that have been identified as illicit pass through their system. He testified that reports to NCMEC by ISPs are often made solely on the basis of detection of a file's hash value.

¶ 9 In addition to describing these practices (although in more detail), Detective Knudson's affidavit stated that under federal law, an ISP "has a duty to report to NCMEC any apparent child pornography it discovers ‘as soon as reasonably possible.’ " CP at 18 (quoting 18 U.S.C. § 2258A(a)(1) ).

¶ 10 The items that Detective Knudson sought to search for and seize were identified in two single-spaced pages of an attachment to his affidavit. They consisted of two categories: "Records, Documents, and Visual Depictions," and "Digital Evidence." CP at 32-33.

¶ 11 The requested search warrant was issued by District Court Judge Kristian Hedine on April 27. The last, freestanding provision of its digital evidence section authorized the seizure of records and things evidencing the use of nine IP addresses that were unrelated to Microsoft's report to NCMEC. They were not identified or explained by Detective Knudson's affidavit or its attachments.

¶ 12 In executing the search warrant the next day, law enforcement seized a Hewlett Packard laptop, a Toshiba laptop, a Micron tower computer, flash drives, compact disks, and floppy disks—all found in Mr. Friedrich's bedroom. They seized a Samsung smartphone from Mr. Friedrich's person. During an interview with officers, Mr. Friedrich admitted that the electronics seized were his and that they would contain images of underage girls. The Hewlett Packard computer and the Samsung smartphone proved to contain depictions of minors engaged in sexually explicit conduct, including the image Microsoft reported. The Toshiba laptop and Micron tower computer also contained such depictions.

¶ 13 The State eventually charged Mr. Friedrich with one count of second degree dealing in depictions of a minor engaged in sexually explicit conduct, three counts of first degree possession of depictions of a minor engaged in sexually explicit conduct, and one count of second degree possession of depictions of a minor engaged in sexually explicit conduct, all in violation of RCW 9.68A.050 and .070. For simplicity's sake hereafter, and unless indicated otherwise, our references to "child pornography" are to depictions of minors whose possession or dealings with which violate provisions of chapter 9.68A RCW or federal law.

¶ 14 Mr. Friedrich moved the court to suppress all of the State's evidence, arguing that Detective Knudson's affidavit supporting his application did not meet the particularity requirement of the Fourth Amendment. The superior court, the Hon. John Lohrmann, denied the motion without a hearing. The parties then proceeded to a stipulated facts trial, with Mr. Friedrich preserving his right to appeal the trial court's suppression decision. Mr. Friedrich was convicted on all remaining counts. He appeals.

ANALYSIS

¶ 15 Mr. Friedrich's assignments of error present two challenges to the trial court's suppression decision. He contends first, that the warrant application failed to provide facts supporting a determination that what was at least month-old evidence of criminal activity could still be found at his residence. His second contention is that the search warrant failed to satisfy the particularity requirement of the Fourth Amendment.

I. THE DISTRICT COURT COULD REASONABLY CONCLUDE THAT THE EVIDENCE OF CRIMINAL ACTIVITY WAS NOT STALE

¶ 16 Mr. Friedrich does not question that the warrant affidavit provided probable cause that he engaged in criminal activity at some time. But he cites two aspects of Detective Knudson's affidavit that he argues undermine probable cause that evidence of the criminal activity existed at Mr. Friedrich's residence at the time the detective applied for the search warrant. The first is the fact that the March 30, 2016 date of Microsoft's report to the CyberTipline was the date Microsoft "became aware that a user uploaded a media file," not the date of the upload itself. CP at 23 (emphasis added). The second is that four weeks had passed between Microsoft's report and the application for the warrant, and the detective's contention that the evidence would still be at the residence depended on unreliable generalizations about the habits of child pornography collectors.

¶ 17 The Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution require that the issuance of a search warrant be based on a determination of probable...