Evidence collected from an unlawful search is generally not admissible in a Washington criminal case. If, however, the evidence is ultimately obtained pursuant to lawful means independent of the lawful search, it may be admissible. When considering this “independent source doctrine,” the court must consider whether the illegally obtained evidence affected the decision to seek or issue the warrant. The independent source doctrine applies if the illegal search did not contribute to the otherwise lawful warrant being issued.
A defendant recently challenged evidence that was collected from his phone pursuant to a second warrant after the original warrant had been found to be improper. According to the appeal court’s opinion, the defendant was arrested after a shopper noticed him taking “upskirt” photos of a teenage girl at a grocery store. The police seized his phone at the time of the arrest and subsequently obtained a warrant to search the phone. The warrant covered all photos and videos on the phone “related to this investigation of voyeurism. The officers seized more than 500 files and charged the defendant with voyeurism.
The trial court granted a motion to suppress the phone evidence, finding the warrant lacked sufficient particularity. That day, the police obtained another warrant that again covered photos or videos related to the voyeurism investigation, but this time added the name of the store, the city, the name and age of the alleged victim, what the alleged victim was wearing, and the date the photos were taken. Eighteen photos of the girl were found on the phone. The trial court denied the defendant’s motion to suppress the evidence from the second search.
The defendant was ultimately found guilty of voyeurism. As a condition of community custody, he was ordered to complete a mental health evaluation and comply with the recommended treatment. The defendant appealed.
The defendant argued that the independent source doctrine did not apply because the police would not have sought a second warrant if not for the invalid first warrant. Washington courts have rejected this argument, instead focusing on whether the police derived benefit from the illegal search and whether the information obtained in the original search contributed to the issuance of the valid warrant.
The appeals court found that the application for the second warrant did not contain information related to the evidence found in the illegal search. The only information added to the second warrant application was details of the crime that the police had gathered from their original investigation. The appeals court found the police did not gain information from the original search that caused them to seek a second warrant. The appeals court further found the trial court’s decision was not affected by the original search. The appeals court found the independent source doctrine applied, even though the second warrant would not have been sought if not for the determination that the search under the original warrant was improper.
The defendant also challenged the court’s order that he obtain a mental health evaluation and treatment. The trial court had not found the defendant suffered from mental illness. A sentencing court can only order mental health evaluation or treatment if it finds the defendant is a “mentally ill person” under RCW 71.24.025 and that the mental health illness or condition influenced the criminal act. The trial court had not made specific findings, so the state agreed that this condition should be stricken.
The appeals court affirmed in part, and reversed in part, and remanded to the trial court to strike the mental health evaluation and treatment condition.
This case shows the importance of challenging improper searches. The evidence from the second search was admitted and the defendant was convicted of the charges related to his actions in the grocery store on the day of his arrest. However, in the second warrant, the police limited the evidence covered to that related to the specific victim, location, and time of the incident. They were not able to use any other evidence against the defendant. So much information is now stored on our phones. A warrant to search a phone that does not include the required particularity could allow police to obtain a variety of information, so it is important to challenge a warrant that is too broad.
If you are facing a criminal case, an experienced Washington criminal defense attorney can fight to protect you from the consequences of illegal searches. Schedule an appointment with Blair & Kim, PLLC, by calling (206) 622-6562.
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