State v. Keodara

• Decision Date: 02 November 2015
• Docket Number: No. 70518–1–I.,70518–1–I.
• Citation: 364 P.3d 777,191 Wash.App. 305
• Parties: STATE of Washington, Respondent, v. Say Sulin KEODARA, Appellant.
• Court: Washington Court of Appeals

191 Wash.App. 305

364 P.3d 777

STATE of Washington, Respondent,

v.Say Sulin KEODARA, Appellant.

No. 70518–1–I.

Court of Appeals of Washington, Division 1.

Nov. 2, 2015.

Publication Ordered Dec. 7, 2015.

Nancy P. Collins, Washington Appellate Project, Seattle, WA, for Appellant.

Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, Deborah A. Dwyer, King Co. Pros. Ofc./Appellate Unit, Seattle, WA, for Respondent.

OPINION

SPEARMAN, C.J.

¶ 1 Seventeen-year-old Say Sulin Keodara was involved in a fatal shooting at a bus stop in 2011. He was apprehended for an unrelated incident and the police seized his cell phone. The State obtained a warrant to search the phone based on an officer's generalized statements about gang members commonly using their phones to take and store photos of illegal activity. Text messages and photos from the phone were submitted at trial. Keodara was convicted and sentenced to a standard range sentence of 831 months, based on the statutory presumptive minimum term for all charges. He appeals, arguing that the evidence from his phone should have been suppressed because the search warrant violated the Fourth Amendment to the United States Constitution and art. I, § 7 of the Washington State Constitution. He also appeals his sentence, arguing that pursuant to Miller v. Alabama, –––U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) it violates the Eighth Amendment to the United States Constitution. He further argues that his counsel was ineffective for failing to assert this claim during his sentencing hearing.

¶ 2 We hold that although the search of Keodara's phone violated the federal constitution, the failure to suppress the evidence obtained thereby was harmless. We also hold that the sentence imposed below violated the constitutional mandate of Miller because the court failed to take into account Keodara's youth and other age-related factors. Accordingly, we affirm Keodara's conviction but remand for a new sentencing hearing.¹

FACTS

¶ 3 On September 12, 2011, a fatal shooting occurred at a bus stop on Rainier Avenue. Four people were inside the bus shelter located at the southwest corner of Rainier Avenue South and South McClellan Street. A vehicle pulled up and some Asian males, appearing to be in their teens or early twenties, asked the group if they were looking for any "soft." Verbatim Report of Proceedings (VRP) (May 8, 2013) at 135–36. "Soft" was known as a street term for crack cocaine. One of the persons inside the shelter, Victor Lee Parker, approached the vehicle and may have made a purchase. Parker then returned to the bus stop and the vehicle drove south on Rainier and then turned.

¶ 4 Later, three of the men from the vehicle approached the bus stop from the north on foot. One of them had a gun and demanded money from the group. The gunman fired on the group after one person tried to run. All four people were hit. Parker had been shot once and was lying on the ground when the shooter walked up to him and shot him in the head. Surveillance cameras from a nearby store showed images of a similar vehicle and of a man in a blue sleeveless jersey with writing on it.

¶ 5 The State arrested Keodara for an unrelated incident about five weeks after the shooting. On October 20, 2011, Renton police officers apprehended him in a silver, four-door Mitsubishi Galant. The car was impounded and the police obtained a warrant to search the car on October 21, 2011. In the car, the police found mushrooms in a bag belonging to the driver, other drug packaging paraphernalia, and a backpack containing a cell phone.

¶ 6 The police obtained a second warrant to search the cell phone. This warrant authorized search and seizure of the following:

Stored phone contact numbers, all call history logs, all text messages, all picture messages, chat logs, voicemail messages, photographs, and information contained in any saved address databases or SIM cards within the cell phone, pictures, videos, a forensic image of the storage media, all documents, chat and internet activity and electronic data that identifies the owner or users of the cell phone.

Any and all other evidence suggesting the crimes listed above [Assault in the Fourth Degree, Unlawful Possession of Firearms, Possession with Intent to Deliver or Sell Narcotics].

Clerk's Papers (CP) at 172.

¶ 7 The Affidavit in support of the warrant stated:

I am the current Gang Information Officer for the Renton Police Department and a member of the South King County Violent Gang Initiative Task Force. I have been the Gang Information Officer since 2008 and a member of the Task Force since August of 2011. Prior to being employed by the Renton Police Department I was employed by the Department of Defense as a Detective where I investigated gangs. I have attended and instructed gang training since 2002 for [a] total of over 500 hours. I have traveled around the Country attending gang conferences where I learn the current trends of gang members that are widely used. I am currently on the Board of Directors for the International Latino Gang Investigators Association. I have held this position since 2006 and prior to this position I was the regional representative for the Pacific Northwest. I have interviewed over 400 gang members and have identified over 100 gang members residing in the City of Renton, over the last 5 years.

It is this Officer's belief that there is significant evidence contained within the cell phone seized. Based off of my training and experience I know it to be common for gang members to take pictures of themselves where they pose with firearms. Gang members also take pictures of themselves prior to, and after they have committed gang related crimes. Additionally, it appears likely there is evidence of firearms contained within said electronic devices. I believe there is evidence of gang affiliation contained within their electronic devices, as this shooting was gang involved. Additionally, criminals often text each other or their buyers photographs of the drugs intended to be sold or recently purchased. Gang members will often take pictures of themselves or fellow gang members with their cell phones which show them using drugs.

CP at 175.

¶ 8 Keodara was charged several months later for the Rainier Avenue shooting after being identified from the surveillance video images. One of the victims, Sharon McMillon, described the gunman and later testified that the car in the video appeared to be the same one that stopped at the shelter, and that the person in the blue basketball jersey appeared to be the shooter. Keodara was also identified in the video by Lacana Long, who had dated Keodara in 2011.

¶ 9 Nathan Smallbeck told police that Keodara called him after the shooting and told him that he had "just shot at a bus station." VRP (May 13, 2013) at 34–35. He provided a statement to police about a call from Keodara around 3:18 a.m. and that he called Keodara later around 11:00 a.m. Id. at 36. The State presented Keodara's telephone records showing call records and texts from the day of the shooting. The State also obtained location data for Keodara's phone that showed it was in the area near the time of the shooting.

¶ 10 At trial, the State presented images from the phone that showed Keodara wearing clothing similar to that worn by the shooter, as well as text messages sent between him and Long. Keodara argued that the police lacked probable cause to search his phone and moved to suppress all evidence seized under the warrant. The trial court denied the motion without holding an evidentiary hearing.

¶ 11 Keodara was charged with and convicted of first degree murder and three counts of first degree assault, each with a separate firearm enhancement, and unlawful possession of a firearm in the first degree. The standard ranges for first degree murder and first degree assault were 312–416 months and 93–123 months, respectively, plus a deadly weapon enhancement of 60 months was added to each count. By statute, the terms for each count are required to be served consecutively and no good time is allowed on the deadly weapon enhancements. See RCW 9.94A.589(1)(b) and 9.94A.533(3)(e). Defense counsel joined in the State's request that the trial court impose the presumptive minimum sentence for each count. The court did so, resulting in imposition of a total term of 831 months (69.25 years).

DISCUSSION

Search Warrant

¶ 12 Keodara argues that the warrant violated the particularity requirements of the Fourth Amendment of the United States Constitution and the protections of Article I, Section 7 of the Washington Constitution. According to him, the warrant was invalid because there was no specific nexus between the events alleged to have occurred and the items authorized to be searched. The State argues that the warrant was sufficiently particular because it specified the individual crimes for which evidence was being sought. The State also contends it would be unreasonable to impose additional limits on the scope of the search, because information related to firearms or drugs could be found any place on the phone and pertain to any time period.

¶ 13 We review the issuance of a search warrant under an abuse of discretion standard. State v. Maddox, 152 Wash.2d 499, 509, 98 P.3d 1199 (2004). We give great deference to the magistrate or issuing judge's decision. State v. Cole, 128 Wash.2d 262, 286, 906 P.2d 925 (1995). We review de novo, however, the trial court's probable cause and particularity determinations on a motion to suppress. State v. Higgs, 177 Wash.App. 414, 426, 311 P.3d 1266 (2013)review denied, 179 Wash.2d 1024, 320 P.3d 719 (2014).

¶ 14 A warrant is overbroad if it fails to describe with particularity items for which probable cause exists to search.

State v. Maddox, 116 Wash.App. 796, 805, 67 P.3d 1135 (2003). While the degree of particularity required depends on the nature of the materials sought and the facts of each case, we evaluate search warrants "in a common...