State v. Thomas
| Decision Date | 28 May 2019 |
| Docket Number | No. 78045-0-I,78045-0-I |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. ERIC SHAWN THOMAS, Appellant. |
UNPUBLISHED OPINION
CHUN, J. — The State originally charged Eric Thomas with one count of voyeurism. After obtaining a search warrant for Thomas's cell phone, police found video showing a separate incident of voyeurism, which gave rise to a second charge. Thomas moved to suppress the video, claiming the warrant was overbroad. The trial court denied the motion. Thomas appeals his conviction on both counts of voyeurism, renewing the warrant issue and claiming ineffective assistance of counsel and prosecutorial misconduct. Thomas also appeals the imposition of certain community custody conditions. Because the warrant provision provided clear parameters to the executing officer, and Thomas fails to establish his other claims, we affirm.
I.
BACKGROUND
On May 1, 2017, K.H. and D.C. were engaging in sexual intercourse inside the bedroom of K.H.'s apartment when K.H. saw someone looking through her partially-closed blinds. K.H. screamed and D.C. pulled on pants and ran out the door. D.C. ran into the alley behind the apartment. D.C. looked over the seven-foot fence adjacent to the apartment building, and saw Thomas crouching on the other side with a cell phone in hand. Seeing the cell phone, D.C. assumed Thomas had been filming them. D.C. told Thomas to jump over the fence and Thomas complied. Thomas told D.C. he had been urinating behind the building. The two had a verbal altercation.
K.H. came outside and called 911. During the call, D.C. provided a physical description to the police. Thomas walked down the street and into another apartment complex.
Seattle Police Officer Christopher Shoul responded to the call. Officer Shoul took statements from D.C. and K.H., while another police unit patrolled the area looking for Thomas. After Officer Shoul finished investigating at the scene, he located Thomas sitting at a nearby bus stop. Thomas told Officer Shoul he had been watching basketball playoffs and drinking at a bar with some friends. After being told one of the victims would come by to identify him, Thomas eventually told Officer Shoul that he had gone around the building to urinate and heard two people "having sex." Thomas said he looked and said "wow."
Officer Shoul returned to the apartment and took D.C to the bus stop to identify Thomas. D.C. positively identified Thomas. Another officer arrested and transported Thomas to the police station, where his cell phone was placed into evidence.
Seattle Police assigned Detective Scott Hatzenbuehler to the case. Thomas told Detective Hatzenbuehler the following version of events: He hadbeen drinking beers and watching a playoff game with some friends at a bar in the area. He walked to the bus stop after the game, but missed the bus. While sitting at the bus stop, Thomas had to use the restroom and walked around the back of an apartment building to relieve himself. While relieving himself, Thomas heard "some sex going on." Then Thomas heard someone at the window yelling. Soon after, a man came running out and accused Thomas of watching them. Thomas was not video recording and there was nothing of that nature on the phone.
Detective Hatzenbuehler applied for and obtained a search warrant for Thomas's cell phone. The search warrant permitted a search of Thomas's phone to find evidence related to its use on May 1, 2017 including calls, messages, photographs, videos, and location data. The warrant also allowed for a search for "[p]hotographs of [K.H.] or [D.C.], or any parts of a male or female that could be [K.H.] or [D.C.], or of [K.H.'s] apartment building, whether the interior or exterior of that building," and "any other information that is evidence of the above-listed crime(s)," without date restriction.
A specially-trained detective extracted the data from the cell phone. Upon receiving the data, Detective Hatzenbuehler began looking for video1 or images pursuant to the warrant. Looking for evidence of voyeurism, Detective Hatzenbuehler first scrolled through the videos and saw a thumbnail image fromvideo 19 showing window blinds with what looked like a light on inside and darkness outside. Detective Hatzenbuehler played the short, 20-second video. The video, dated April 4, 2017 appeared to show voyeuristic activity on the part of the person recording.
Although Detective Hatzenbuehler believed the evidence was within the scope of the warrant, he decided to obtain an addendum to the warrant in case he found additional evidence.2 Upon examination, video 19 appeared to be shot through a window and showed a woman sitting at a computer. The woman never looked in the direction of the recording. Detective Hatzenbuehler later determined the woman in the video was C.W., who lived in the same apartment building as, and just next door to, K.H.
The State originally charged Thomas with one count of voyeurism. After discovery of the video of C.W., the State amended the information to include a second count of voyeurism.
In pretrial motions, Thomas attempted to suppress the video of C.W., arguing Detective Hatzenbuehler exceeded the scope of the warrant and obtained the video pursuant to an overbroad warrant. The trial court denied the motion.
During trial, Thomas moved for a mistrial due to admission of an audio recording of the 911 call. The trial court also denied this motion. The jury found Thomas guilty on both counts.3 Thomas now appeals.
II.
ANALYSIS
Thomas argues the trial court erroneously admitted the video of C.W., because police obtained it through an overbroad search warrant.4 Thomas claims this results in insufficient evidence to convict on Count II and prejudice as to Count I, requiring reversal for both counts. The State contends police found the video of C.W. pursuant to a sufficiently particular search warrant. Because the warrant provided clear parameters to the executing officer, we agree with the State.
Cell phones are "private affairs" under article I, section 7 of the Washington State Constitution, requiring a warrant or an applicable exception for a lawful search. State v. Samalia, 186 Wn.2d 262, 268, 375 P.3d 1082 (2016). The Fourth Amendment to the United States Constitution requires a warrant to describe with particularity the things to be seized. State v. Higgins, 136 Wn. App. 87, 91, 147 P.3d 659 (2006). This requirement exists to "make a general search 'impossible and prevent[ ] the seizure of one thing under a warrant describing another.'" State v. McKee, 3 Wn. App. 2d 11, 22, 413 P.3d 1049 (2018) (quoting Marron v. United States, 275 U.S. 192, 196, 48 S. Ct. 74, 72 L. Ed. 231 (1927)), rev'd on other grounds, No. 96035-6 (Wash. Apr. 22, 2019), http://www.courts.wa.gov/opinions/pdf/960356.pdf). Particularity also eliminatesunlimited discretion in the executing officer's determination of what to seize, and informs the person subject to the search of what items the officer may seize. State v. Besola, 184 Wn.2d 605, 610-11, 359 P.3d 799 (2015). The degree of particularity depends on the nature of the materials sought and the facts of the case. State v. Keodara, 191 Wn. App. 305, 313, 364 P.3d 777 (2015).
"In general, Washington courts have recognized that the search of computers or other electronic storage devices gives rise to heightened particularity concerns." Keodara, 191 Wn. App. at 314. This heightened particularity arises because "advances in technology and the centrality of computers in the lives of average people have rendered the computer hard drive akin to a residence in terms of the scope and quantity of private information it may contain." United States v. Galpin, 720 F.3d 436, 446 (2nd Cir. 2013).
"A properly issued warrant 'distinguishes those items the State has probable cause to seize from those it does not,' particularly for a search of computers or digital storage devices." Keodara, 191 Wn. App. at 314 (quoting State v. Askham, 120 Wn. App. 872, 879, 86 P.3d 1224 (2004)). An overbroad warrant lacks the requisite particularity. See Keodara, 191 Wn. App. at 312. Three factors assist in determining whether a warrant suffers from overbreadth:
"(1) whether probable cause exists to seize all items of a particular type described in the warrant, (2) whether the warrant sets out objective standards by which executing officers can differentiate items subject to seizure from those which are not, and (3) whether the government was able to describe the items more particularly in light of the information available to it at the time the warrant was issued."5
Higgins, 136 Wn. App. at 91-92 (internal quotation marks omitted) (quoting United States v. Mann, 389 F.3d 869, 878 (9th Cir. 2004)).
Courts evaluate search warrants "in a commonsense, practical manner, rather than in a hypertechnical sense." State v. Perrone, 119 Wn.2d 538, 549, 834 P.2d 611 (1992) (). "The underlying measure of adequacy in a description is whether, given the specificity of the warrant, a violation of personal rights is likely." Keodara, 191 Wn. App. at 313. "A search warrant must be definite enough that the executing officer can identify the property sought with reasonable clarity and eliminate the chance that the executing officer will exceed the permissible scope of the search." State v. McKee, 3 Wn. App.2d at 28-29.
Appellate courts review de novo a trial court's probable cause and particularity determinations on a motion to suppress. Keodara, 191 Wn. App. at 312. Admission of evidence obtained in violation of the state or federal constitution amounts to an error of constitutional magnitude. Keodara, 191 Wn. App. at 317.
Here, Thomas alleges overbreadth based on the provision of the original warrant authorizing a search of Thomas's cell phone for "[p]hotographs of [K.H.] or [D.C.], or any parts of a male or female...
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