State v. Nordlund, 26222-3-II.

• Decision Date: 30 August 2002
• Docket Number: No. 26222-3-II.,26222-3-II.
• Citation: 113 Wash.App. 171,53 P.3d 520
• Parties: STATE of Washington, Respondent, v. Frank Reed NORDLUND, Appellant.
• Court: Washington Court of Appeals

53 P.3d 520

113 Wash.App. 171

STATE of Washington, Respondent, v. Frank Reed NORDLUND, Appellant.

No. 26222-3-II.

Court of Appeals of Washington, Division 2.

August 30, 2002.

Linda J. King, Attorney At Law, Steilacoom, WA, for Appellant.

Barbara L. Corey-Boulet, Pierce Co. Deputy Pros. Atty, Tacoma, WA, for Respondent.

PART PUBLISHED OPINION

SEINFELD, P.J.

Frank Reed Nordlund appeals multiple convictions arising out of attacks against two young women. Holding that an affiant's general statements about the habits of sex offenders are insufficient to support the issuance of a search warrant for a personal computer but concluding that the admission of the evidence from the search in this case was harmless as to the counts involving one of the victims, we affirm in part and reverse in part. Further holding that reliance on an anticipatory crime to support application of the Persistent Offender Accountability Act did not violate ex post facto protections, we affirm Nordlund's sentence.

FACTS

A jury found Nordlund guilty of indecent liberties by forcible compulsion, count I; two counts of unlawful imprisonment, counts II and IV; and second degree attempted rape, count III. The crimes involved two separate attacks against two separate victims on the same day.

Counts III and IV arose out of a July 2, 1999, attack against 13-year-old D.T. D.T. was pushing her 2-year-old sister in a stroller around 11:25 a.m. when she noticed a man walking behind her. As she struggled to get out of the man's way, he put his arm around her neck and a hand over her mouth.

The man told D.T. to be quiet but she screamed. He then hit her in the mouth, lifted her and the stroller over the fence of a nearby home, dragged her behind some bushes, and told her to take off her shoes, pants and underwear. When D.T. refused, the man removed the garments.

The homeowner, Wallace Black, heard noises and came outside. D.T.'s attacker told him: "`This is my girlfriend. We're having a fight.'" 3 Report of Proceedings (RP) at 205. The man then ran away. Black later described the attacker as wearing dark nylon sweat pants and a reddish, maroon ski mask with holes for the eyes and mouth.

D.T. told the police that her attacker had pulled a green ski mask out of his pocket or from the side of his pants when he first pinned her down. She said that the mask had holes for the eyes and mouth and that the man wore a pair of big, rounded, dark-rimmed glasses over the mask's eyeholes. D.T. also observed that her attacker was wearing green cloth sweat pants, dirty white sneakers, and a gray-sleeved sweatshirt with raised lettering. Although D.T. was unable to identify Nordlund as her attacker, she was able to identify the glasses her attacker was wearing in photographs of items that the police took from Nordlund's home.

Counts I and II arose out of an attack against 16-year-old R.P. that occurred at about 8 p.m. on July 2. R.P. was walking with her nieces and nephew when a man walked up to her and forcefully grabbed her breasts. R.P. struggled but the man grabbed her wrist and pushed her backwards. Eventually, the man started laughing, let R.P. go, and walked away down a nearby alley.

R.P. described her attacker as a white male, medium to heavy build, with short dark hair and a "5:00 shadow." 4 RP at 327. He was wearing a reddish brown knit cap rolled up to the top of his ears, a navy blue or purple shirt with a sports logo on it, green nylon warm-up pants, black and white tennis shoes, and glasses with thick black rims. R.P. first identified Nordlund as her attacker at a "show-up" on the night of the attack, again in a photo montage several days later, and again at trial. 5 RP at 526.

At about 9:30 p.m. on July 2, police officer John Otis observed Nordlund in an alley. When Nordlund saw the police car, he went behind a garage. Otis then turned into a dirt Laundromat parking lot and saw Nordlund walking toward the Laundromat doors. Nordlund was wearing green nylon warm-up pants, a purplish T-shirt with a logo or writing on the front, and holding a pair of large-framed glasses in his hand.

Otis contacted Nordlund and asked if he lived in the area. Nordlund responded that he was visiting a friend but he could not provide the friend's address. He first said that he had been riding around with a friend but he later told Otis that he had been at his brother's house.

An officer brought R.P. to the Laundromat to view Nordlund; she immediately identified him as her attacker. Police then found a reddish ski mask in the parking lot near the Laundromat door. The mask looked like it had just been dropped because it was not dirty and had not been run over. At trial, the State's forensic expert opined that Nordlund was "possibly" the source of two of the hairs found on the mask. 8 RP at 676.

The police arrested Nordlund but he was released on bail on July 3. On July 6, the State charged him with the four counts involved in this appeal and that same day Nordlund prepared a "Statement of Day" document on his personal computer, which described his whereabouts on July 2, from noon until his arrest sometime after 9:30 p.m.

On July 10, the police executed a King County search warrant at Nordlund's home and seized, among other items, his personal computer. Pursuant to a later Pierce County search warrant, the police searched Nordlund's computer and discovered the "Statement of Day" document.

Following trial, the jury convicted Nordlund as charged. The trial court then sentenced him as a persistent offender to life imprisonment without the possibility of parole.

DISCUSSION

I. MOTION TO SUPPRESS—SEARCH WARRANTS

Nordlund challenges two search warrants: (1) the King County warrant authorizing the search of his residence and the seizure of any computer equipment; and (2) the later Pierce County warrant authorizing the search of the computer seized pursuant to the King County warrant. Nordlund argued below that the affiant failed to establish the reliability of anonymous informants referenced in one of the affidavits, and that the affidavit did not show that the computer was an instrumentality of the alleged crimes or that it would contain evidence of those crimes.

On appeal, Nordlund presents a constitutional claim of ineffective assistance of counsel. To support this claim, he alleges trial counsel's failure to raise two additional challenges at the suppression hearing: (1) that the warrants were insufficiently particular; and (2) that the Pierce County warrant was invalid because the affidavit supporting it was unsigned. To establish ineffective assistance, Nordlund must show deficient performance and actual prejudice, i.e., that a motion to suppress would likely have been granted. State v. McFarland, 127 Wash.2d 322, 333-35, 899 P.2d 1251 (1995).

The fourth amendment¹ requires that an affidavit supporting a warrant establish probable cause, i.e., it must contain "facts and circumstances sufficient to establish a reasonable inference that the defendant is probably involved in criminal activity and that evidence of the crime can be found at the place to be searched." State v. Thein, 138 Wash.2d 133, 140, 977 P.2d 582 (1999); State v. Cole, 128 Wash.2d 262, 286, 906 P.2d 925 (1995). The fourth amendment also contains a particularity requirement that prevents general searches and "the issuance of warrants on loose, vague, or doubtful bases of fact." State v. Perrone, 119 Wash.2d 538, 545, 834 P.2d 611 (1992). We review a challenge to a search warrant for an abuse of discretion. Cole, 128 Wash.2d at 286,906 P.2d 925.

A. THE PARTICULARITY REQUIREMENT

To satisfy the particularity requirement, the warrant must be sufficiently definite to allow the searching officer to identify the objects sought with reasonable certainty. State v. Stenson, 132 Wash.2d 668, 691-92, 940 P.2d 1239 (1997); Perrone, 119 Wash.2d at 546, 834 P.2d 611. The degree of required specificity turns on the circumstances and the type of items involved. Stenson, 132 Wash.2d at 692, 940 P.2d 1239; Perrone, 119 Wash.2d at 546, 834 P.2d 611. "A description is valid if it is as specific as the circumstances and the nature of the activity, or crime, under investigation permits." Stenson, 132 Wash.2d at 692, 940 P.2d 1239. We review de novo whether a search warrant meets the particularity requirement but we interpret warrants "in a commonsense, practical manner, rather than in a hypertechnical sense." Perrone, 119 Wash.2d at 549, 834 P.2d 611.

The King County search warrant lists numerous very specifically described items, and the accounts in the supporting affidavits support those descriptions. Nordlund challenges the seizure of a photo album but the warrant authorizes the seizure of photos of another alleged victim, A.J., and the supporting affidavit explains that A.J.'s attacker took her purse, which contained photos of A.J. and her family. Thus, Nordlund has not demonstrated that a motion to suppress on particularity grounds probably would have been successful. Consequently, he has not shown ineffective assistance on this basis. See McFarland, 127 Wash.2d at 337 n. 4, 899 P.2d 1251.

B. THE SIGNED AFFIDAVIT OR SWORN TESTIMONY REQUIREMENT

Nordlund also challenges the Pierce County search warrant as being unsupported by a signed affidavit. A search warrant must be supported by either a signed affidavit that meets the requirements of RCW 9A.72.085 or by sworn testimony. CrR 2.3(c). Here, although the Pierce County affidavit is unsigned, the magistrate signed the affidavit as being "[a]cknowledged and sworn to before me this 14 day of July, 1999." Clerk's Papers (CP) at 372. Thus, Nordlund has not shown that the Pierce County warrant was defective and that a motion to suppress on this ground probably would have been successful. See McFarland, 127 Wash.2d at 337 n. 4, 899 P.2d 1251. Consequently, his ineffective assistance claim regarding the affidavit fails.

C. RELIABILITY OF INFORMANTS

Nordlund...