State v. Glant
| Decision Date | 14 April 2020 |
| Docket Number | No. 52142-3-II,52142-3-II |
| Citation | 465 P.3d 382,13 Wash.App.2d 356 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Bryan Earle GLANT, Appellant. |
Michael D. McKay, Peter Anthony Talevich, K&L Gates LLP, 925 4th Ave. Ste. 2900, Seattle, WA, Suzanne Lee Elliott, Attorney at Law, 705 2nd Ave. Ste. 1300, Seattle, WA, for Appellant.
Joseph James Anthony Jackson, Thurston County Prosecutor's Office, 2000 Lakeridge Dr. Sw Bldg. 2, Olympia, WA, Respondent.
PUBLISHED OPINION
Worswick, J. ¶1 Bryan Earle Glant appeals his convictions for two counts of attempted first degree rape of a child arising from an online sting operation.1 Before trial, Glant moved to suppress his e-mail and text messages and moved to dismiss the case based on outrageous government conduct. The trial court denied both motions. The trial court found Glant guilty of both counts of attempted first degree rape of a child and sentenced Glant within the standard range.
¶2 On appeal, Glant argues that the trial court erred when it denied his motion to suppress and motion to dismiss. Glant also argues that the trial court abused its discretion when it imposed a standard range sentence.
¶3 We hold that the trial court did not err when it denied Glant's motion to suppress and motion to dismiss. Further, we hold that Glant cannot appeal his standard range sentence. Thus, we affirm.
FACTS
¶4 The Washington State Patrol Missing and Exploited Children Task Force (MECTF) investigates sex crimes against children. RCW 13.60.110. Many MECTF investigations involve the internet and are dubbed "Net Nanny" operations. Sergeant Carlos Rodriguez manages MECTF and oversees its undercover operations.
¶5 RCW 13.60.110(4) states, "The chief of the state patrol shall seek public and private grants and gifts to support the work of the task force." MECTF receives donations from private citizens and organizations. One such donor is Operation Underground Railroad (O.U.R.). O.U.R. has contributed tens of thousands of dollars to support various Net Nanny operations across the State. Following each Net Nanny operation, the Washington State Patrol issues a press release. Some of these press releases acknowledge O.U.R.’s support of the Net Nanny operation. E-mails show that Sergeant Rodriguez coordinated the financial donations from O.U.R. on behalf of MECTF. Sergeant Rodriguez collected overtime pay while conducting Net Nanny operations.
¶6 In September 2016, MECTF conducted a Net Nanny operation in Thurston County. As part of the undercover operation, MECTF posted an advertisement on the Casual Encounters section of Craigslist. "Family Play Time!?!?—w4m," the advertisement stated, Clerk's Papers (CP) at 772-73.
¶7 Glant responded to the advertisement by e-mail. Glant then began texting with a person whom he believed was Hannah, a mother of three children. "Hannah"2 told Glant that her son was 13 years old and her daughters were 6 and 11 years old. Glant stated he was "primarily interested in the daughters." CP at 773. Glant stated that he wanted to "use some toys with them and introduce some touching and then work towards oral." CP at 773. Hannah stated that her rules were "no pain, no anal." CP at 773. She asked Glant if he wanted to perform oral on the daughters or if he wanted the daughters to perform oral on him. Glant agreed to the rules and stated that he wanted both methods of oral. Glant asked, "What about like a finger in the bum though?" CP at 773. Hannah responded that this was acceptable if Glant brought lubricant.3
¶8 Glant drove from Mercer Island to Thurston County to meet Hannah and her daughters. When Glant arrived at the apartment, he had a bottle of lubricant in his pocket. Law enforcement officers arrested Glant, and the State charged him with two counts of attempted first degree rape of a child. Glant was 20 years old.
¶9 Glant made two pretrial motions. First, Glant moved to suppress his e-mails and text messages based on the Washington Privacy Act (WPA), chapter 9.73 RCW, and article I, section 7 of the Washington Constitution. The trial court found that the e-mail and text message communications between Glant and Hannah were private, that the messages were recorded on the devices used to communicate the messages, and that Glant impliedly consented to the recording because Glant knew that these messages would be preserved. The trial court also found that Glant voluntarily disclosed information to the intended recipient. Consequently, the trial court ruled that law enforcement officers did not violate the WPA or article I, section 7 of the Washington Constitution, and denied Glant's motion to suppress.
¶10 Second, Glant moved to dismiss his case based on outrageous government conduct. Glant alleged financial wrongdoing in managing and funding MECTF's Net Nanny operations. Specifically, Glant argued that law enforcement officers’ conduct toward Glant in the sting, along with this financial arrangement with O.U.R., amounted to outrageous government conduct which violated Glant's right to due process. Glant argued that the Net Nanny operations were improperly funded through an alliance with O.U.R. Glant argued that this arrangement violated the law because Sergeant Rodriguez solicited donations instead of the WSP chief. Glant alleged that Sergeant Rodriguez solicited donations from O.U.R. for the purpose of funding officer overtime pay that resulted from the Net Nanny operations. Glant argued that the relationship between MECTF, WSP, and O.U.R. caused MECTF to generate more arrests and push the individuals targeted by the stings into more severe crimes that MECTF then used to solicit higher O.U.R. donations.
¶11 The trial court entered detailed findings of fact and conclusions of law regarding the motion to dismiss. The trial court concluded that the motion involved two issues: (1) the alleged misconduct regarding MECTF's acquisition of funds and how that acquisition was connected to Glant's charges, and (2) the nature of the interactions between Hannah and Glant. The trial court examined these issues in the totality of the circumstances and weighed all Lively4 factors. The trial court denied Glant's motion to dismiss for outrageous government conduct.
¶12 The case was tried to the bench based on stipulated facts. The trial court found Glant guilty of both counts of attempted first degree rape of a child.
¶13 At sentencing, Glant sought an exceptional downward sentence based on his youth. Dr. Richard Packard, a certified sex offender treatment provider, testified regarding the impact of Glant's youth on his decision-making abilities and impulsivity. The trial court considered Dr. Packard's testimony "helpful." Verbatim Report of Proceedings (VRP) (July 17, 2018) at 89. However, the trial court stated, VRP (July 17, 2018) at 89-90. The trial court imposed a sentence of 108 months to life, a sentence within the standard range.
¶14 Glant appeals his convictions and his sentence.
ANALYSIS
¶15 Glant argues that the trial court erred when it denied his motion to suppress his e-mail and text messages because an interception or recording authorization was required prior to intercepting Glant's messages, and that the interception of these messages violated the WPA and article I, section 7 of the Washington Constitution. We disagree.
¶16 When reviewing a suppression order, we consider whether substantial evidence supports the trial court's findings of fact and whether those findings of fact support the conclusions of law. State v. Garvin , 166 Wash.2d 242, 249, 207 P.3d 1266 (2009). Substantial evidence exists when a fair-minded person is persuaded of the truth of the stated premise. Garvin , 166 Wash.2d at. 249, 207 P.3d 1266. On a motion to suppress, we review a trial court's conclusions of law de novo. State v. Baird , 187 Wash.2d 210, 218, 386 P.3d 239 (2016). We review questions of law de novo. State v. Kipp , 179 Wash.2d 718, 726, 317 P.3d 1029 (2014).
¶17 Glant argues that the trial court erred when it denied his motion to suppress because law enforcement officers violated his right to privacy under the WPA. Specifically, he argues that an interception or recording authorization was required before intercepting or recording his messages to Hannah. Glant also argues that he did not impliedly consent to the recording of his messages. We hold that law enforcement officers did not violate Glant's right to privacy under the WPA.
¶18 The WPA prohibits a person or agency from obtaining communications between individuals if (1) a private communication transmitted by a device was (2) recorded or intercepted by (3) a recording or transmittal device (4) without the consent of all parties. RCW 9.73.030 ; State v. Townsend , 147 Wash.2d 666, 672-73, 57 P.3d 255 (2002). Private communications include conversations transmitted through telephones, computers, and other devices that are designed to record or transmit communication. RCW 9.73.030(1)(a) ; Townsend , 147 Wash.2d at 672, 57 P.3d 255. A person consents when they explicitly announce their intention to engage in the communication. RCW 9.73.030(3). A person also consents by choosing to communicate through a device in which the person knows the information will be recorded. State v. Racus , 7 Wash. App. 2d 287, 299-300, 433 P.3d 830, review denied , 193 Wash.2d 1014, 441 P.3d 828 (2019). When a person sends e-mail or text messages they do so with the understanding that the messages would be available to the receiving ...
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