State v. Denham ( 2021 )

FILE
THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
JULY 1, 2021
IN CLERK’S OFFICE
SUPREME COURT, STATE OF WASHINGTON
JULY 1, 2021
ERIN L. LENNON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
)
STATE OF WASHINGTON, )
)
Petitioner, ) No. 98591-0
)
v. )
)
LYNELL AVERY DENHAM, )
)
Respondent. ) Filed: July 1, 2021
_______________________________)
GONZÁLEZ, C.J.— A valuable diamond was stolen from a jewelry store.
Within days, Lynell Avery Denham sold that diamond. Police suspected Denham
committed the burglary and got a warrant for his cell phone records. Cell site
location information included in those records placed Denham’s phone near the
jewelry store around the time of the burglary. Denham contends that the affidavits
supporting the warrant for his phone records lacked specific facts that would
suggest evidence of a crime would be found in those records. He also contends a
video interview where he discussed sophisticated burglary techniques was
improperly admitted. We reverse the Court of Appeals and affirm Denham’s
conviction.
State v. Denham, No. 98591-0
FACTS
Someone burgled Mallinak Designs Jewelers over Veterans Day weekend in
2016. Mallinak Designs had an elaborate security system and stored a great deal of
valuable jewelry in a large, heavy safe. Before the burglary, someone had
removed an interior lock on a utility room that was accessible through a roof hatch,
and the burglar entered through that roof hatch while the store was closed. Doors
were cut or sabotaged, the alarm system was deactivated, and the safe’s locking
mechanisms were disabled. 1 The burglar made off with a great deal of jewels and
jewelry, including a 5.29 carat diamond with certification papers from the
Gemological Institute of America. No suspect fingerprints were left, but Frank
Mallinak, the store owner, did find a small plastic piece that he did not recognize.
Within days of the burglary, Denham sold the stolen 5.29 carat diamond,
along with its certification paper work. This sale was the basis of a trafficking
charge. Denham used one of his own cell phones several times to negotiate the
sale of the diamond. Over the next few weeks Denham pawned or sold jewels and
jewelry stolen from Mallinak Designs at various jewelry and pawn shops and
purchased a new Range Rover with a large cash down payment. He also took to
1
Police later determined that an alarm went off at the jewelry store over the weekend, but the
particular alarm system in place required two alarms before the police would be summoned.
Two alarms were required to cut down on false alarms.
2
State v. Denham, No. 98591-0
wearing “a huge blue stone gem necklace” that matched one taken in the burglary.
Clerk’s Papers (CP) at 6.
Meanwhile, Allan O’Neill, a Kirkland police detective, ran a search through
a database that tracked sales at pawn shops and saw Denham had been pawning
jewelry stolen from Mallinak Designs. Based on discussions with Frank Mallinak,
the shop operators, and one of Denham’s probation officers, Detective O’Neill
successfully applied for a search warrant for Denham’s registered address in
Tacoma. The original warrant application was very detailed about the burglary and
the sale of stolen jewels. Detective O’Neill also successfully sought authority to
seize the Range Rover and to seize and image cell phones for a later search.
Denham was not home when the warrant was served. Police found drawings
and schematics of safes, and new headlamps, one of which was missing a piece
similar to that found at Mallinak Designs. They also seized the Range Rover.
They did not find any cell phones.
After the search, the detective wrote an addendum to the warrant affidavit
seeking five months of records associated with two phone numbers Denham had
given to his probation officers and to the purchaser of the diamond. According to
the original affidavit, the purchaser of the diamond had reached Denham at one of
those numbers. The addendum sought subscriber information, payment details,
billing records, inbound and outbound call records, stored communications, stored
3
State v. Denham, No. 98591-0
images, location data, physical addresses of cell towers used by the phones,
connection logs, and much more. The State acknowledges, correctly, that this was
overbroad both in time and scope. Both the original warrant application and the
addendum contained what appeared to be boilerplate language describing the role
of cell phones in people’s lives and the information that can be gleaned from the
phones and the phone records. The expanded warrant was granted.
The phone company’s records included cell site location information that
established multiple calls to or from Denham’s phone were relayed through a cell
phone tower that was about 550 feet from Mallinak’s store around the time of the
burglary. Denham lived in Tacoma, some distance away.
Denham was arrested and charged with second degree burglary and first
degree trafficking in stolen property. Prior to trial, the State sought to admit
recordings of two lengthy 2008 interviews with police where Denham discussed
sophisticated methods of breaking into safes. These interviews explored the
techniques Denham had previously used, including how he bypassed alarms, cut
through Sheetrock, cracked safes, and avoided leaving evidence. The State sought
to admit recordings of these interviews for identity, knowledge, and modus
operandi.
The trial court did “not admit[] the various bank robberies as 404(b), but
[did] admit[] the knowledge that [Denham] admitted to.” 3 Verbatim Tr. of
4
State v. Denham, No. 98591-0
Proceedings (VTP) (Feb. 20, 2018) at 226. Specifically, the court admitted
Denham’s “admissions as to his skill set, which would make it possible for him to
do these burglaries.” Id. at 229.
Denham was convicted of second degree burglary and first degree
trafficking in stolen property at a bench trial. The trial judge specifically cited the
fact that Denham had made phone calls that were routed through the cell tower in
the parking lot of Mallinak Designs around the time of the burglary. She also cited
the lengthy interviews Denham had given on burglary techniques and his
specialized knowledge on burglary.
For the first time on appeal, Denham challenged the sufficiency of the nexus
between the cell phone and the crimes. The Court of Appeals found that the
question was appropriate for review under RAP 2.5(a)(3) and that the warrant
applications did not establish a sufficient nexus between the phone records and the
crime. State v. Denham, No. 78704-7-I, slip op. at 5, 13 (Wash. Ct. App. Apr. 27,
2020) (unpublished), https://www.courts.wa.gov/opinions/pdf/787047.pdf. The
Court of Appeals also held that despite the fact the trial judge rejected the State’s
attempt to admit the 2008 recordings for identity or modus operandi, it used the
recordings for that purpose without establishing that the crimes were specific
enough for those purposes. Id. at 17. It found the errors were not harmless and
reversed Denham’s convictions. Id. at 18. We granted review. The Washington
5
State v. Denham, No. 98591-0
Association of Criminal Defense Lawyers, the American Civil Liberties Union of
Washington, the King County Department of Public Defense, and the Washington
Defender Association submitted an amici brief in support of Denham.
1. CELL PHONE RECORDS 2
Our constitutions protect individual privacy against state intrusion. U.S.
CONST. amend IV; WASH. CONST. art. I, § 7. State agents must have either the
authority of a warrant or a well-established exception to the warrant requirement to
lawfully intrude into an individual’s private affairs. State v. Ladson, 138 Wn.2d
343, 350, 979 P.2d 833 (1999) (quoting City of Seattle v. McCready, 123 Wn.2d
260, 273, 868 P.2d 134 (1994)). This constitutional protection extends to cell
phone location information held by cell phone companies. See State v.
Muhammad, 194 Wn.2d 577, 580, 451 P.3d 1060 (2019); Carpenter v. United
States, __ U.S. __, 138 S. Ct. 2206, 2220, 201 L. Ed. 2d 507 (2018). As the United
States Supreme Court observed, “[T]he time-stamped data provides an intimate
window into a person’s life, revealing not only his particular movements, but
2
The State properly concedes that the warrant was overbroad because there was no probable
cause supporting the conclusion that evidence of a crime would be found in all of the categories
of information listed. Suppl. Br. of Pet’r at 10 n.2. There is nothing in the affidavits that
suggests billing records, pictures, or location data acquired after the charging period, for
example, would be germane to any criminal activity. But Denham has not challenged the
warrant as overbroad and does not contend that evidence seized under the overbroad portions of
the warrant was admitted. If it had been, the remedy would have been suppression of any
evidence seized due to the overbreadth. See State v. Perrone, 119 Wn.2d 538, 556, 834 P.2d 611(1992) (citing United States v. Fitzgerald, 724 F.2d 633, 637 (8th Cir. 1983)).
6
State v. Denham, No. 98591-0
through them his ‘familial, political, professional, religious, and sexual
associations.’” Carpenter, 138 S. Ct. at 2217 (quoting United States v. Jones, 565
U.S. 400, 415, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012) (Sotomayor, J.,
concurring)); see also Muhammad, 194 Wn.2d at 596 (Wiggins, J., lead opinion) &
612 (Gordon-McCloud, J., opinion)
Here, officers had a search warrant. Denham challenges the adequacy of the
affidavits supporting the application for that warrant. He contends the affidavits
were based on generalizations and did not establish that evidence of wrongdoing
would likely be found in his phone records.
“A search warrant should be issued only if the application shows probable
cause that the defendant is involved in criminal activity and that evidence of the
criminal activity will be found in the place to be searched.” State v. Neth, 165
Wn.2d 177, 182, 196 P.3d 658 (2008) (citing State v. Thein, 138 Wn.2d 133, 140,
977 P.2d 582 (1999)). There must be “a nexus between criminal activity and the
item to be seized and between that item and the place to be searched.” Id. at 183
(citing Thein, 138 Wn.2d at 140). The warrant must also describe with
particularity the place to be searched and the things to be seized. Perrone, 119
Wn.2d at 546-47 (citing U.S. CONST. amend IV). A trial judge’s decision to
authorize a search warrant is normally reviewed for abuse of discretion. Neth, 165
Wn.2d at 182 (citing State v. Maddox, 152 Wn.2d 499, 509, 98 P.3d 1199 (2004)).
7
State v. Denham, No. 98591-0
“Although we defer to the magistrate’s determination, the trial court’s assessment
of probable cause is a legal conclusion we review de novo.” Id. (citing State v.
Chamberlin, 161 Wn.2d 30, 40-41, 162 P.3d 389 (2007)).
Search warrants may not be based only on generalizations. Instead,
our precedent requires probable cause be based on more than conclusory
predictions. Blanket inferences of this kind substitute generalities for the
required showing of reasonably specific “underlying circumstances” that
establish evidence of illegal activity will likely be found in the place to be
searched in any particular case. We reiterate that “[p]robable cause to
believe that a man has committed a crime . . . does not necessarily give rise
to probable cause to search his home.”
Thein, 138 Wn.2d at 147-48 (alterations in original) (quoting State v. Dalton, 73
Wn. App. 132, 140, 868 P.2d 873 (1994)); see also State v. Keodara, 191 Wn.
App. 305, 310, 316, 364 P.3d 777 (2015) (generalized statements that gang
members take inculpatory pictures of themselves not sufficient to search a
suspect’s seized telephone).
Denham contends that the search warrant affidavits supporting the seizure of
Denham’s phone records relied on the same sort of generalizations rejected in
Thein. We disagree.
These affidavits present reasonable grounds to believe that the phones
associated with the phone numbers belonged to Denham based on Denham’s own
use of the numbers with his probation officers and with various businesses, that
Denham had the phones around the time of the burglary because of specific facts
8
State v. Denham, No. 98591-0
suggesting he had the phones days before and after the date in question, that
Denham burgled the store, and that Denham trafficked distinctive pieces stolen
from the store. They also allege that Denham had both phones at the time of the
burglary and used one to arrange the sale of the diamond that was the basis of the
trafficking charge. 3 Taken together, this is sufficient to raise a reasonable
inference that evidence of burglary would be found in the cell site location
information under Neth, 165 Wn.2d at 182 (citing Thein, 138 Wn.2d 140). The
fact that there are some generalizations in the inferential chain does not defeat the
reasonableness of the inference. 4
We find illustrative Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L.
Ed. 2d 527 (1983). In Gates, Illinois police had received an anonymous letter
accusing a couple of dealing drugs. Id. at 225. The letter contained a great deal of
specifics about the couple’s methodology. Id. Police surveilled the couple,
confirmed many of the seemingly innocuous details in the letter, and, based on
3
We respectfully disagree with the dissent that there is nothing in the affidavits linking the cell
site location information to the crime. The warrant affidavits support an inference that Denham
had at least one of the cell phones on him when he committed the burglary. CP at 437-38. That
in turn supports an inference that evidence would be found in the cell site location information
for the weekend of the burglary.
4
We also respectfully disagree with the dissent that this opinion overrules Thein. Thein remains
good law and stands for the proposition that a search warrant cannot be based on generalizations
about the supposed common habits of drug dealers. Thein, 138 Wn.2d at 147-48. There must
be “a factual nexus between the evidence sought and the place to be searched.” Id. at 148 (citing
State v. Olson, 73 Wn. App. 348, 357, 869 P.2d 110 (1994)). There was such a nexus between
Denham’s location on the weekend of the burglary and his cell site location information.
9
State v. Denham, No. 98591-0
both the letter and the investigation, successfully applied for a warrant to search
the couple’s car. Id. at 225-26. The United States Supreme Court affirmed. While
it suggested the anonymous letter alone would likely not be enough, the totality of
the circumstances created probable cause to believe evidence of a crime would be
found in the car. Id. at 227, 230. It observed:
“In dealing with probable cause, . . . as the very name implies, we deal with
probabilities. These are not technical; they are the factual and practical
considerations of everyday life on which reasonable and prudent men, not
legal technicians, act.” [Brinegar v. United States, 338 U.S. 160], 175[, 69
S. Ct. 1302, 93 L. Ed. 1879 (1949)]. Our observation in United States v.
Cortez, 449 U.S. 411, 418[, 101 S. Ct. 690, 66 L. Ed. 2d 621] (1981),
regarding “particularized suspicion,” is also applicable to the probable cause
standard:
“The process [of determining the existence of probable cause] does
not deal with hard certainties, but with probabilities. Long before the
law of probabilities was articulated as such, practical people
formulated certain common-sense conclusions about human behavior;
jurors as factfinders are permitted to do the same—and so are law
enforcement officers.”
Gates, 462 U.S. at 231-32 (first alteration in original).
The judge did not abuse her discretion in approving the warrant. Reading
the affidavits as a whole, the judge could reasonably infer that evidence of the
burglary would be found in Denham’s cell site location information. While we do
not countenance how overbroad this warrant was, no overbreadth challenge is
before us, and nothing in the trial judge’s findings of fact suggests she relied on
10
State v. Denham, No. 98591-0
evidence seized under overbroad portions of the warrant. 5 The phone records were
not improperly used to show Denham’s associations, pictures, musical tastes, or
the content of his communications. See State v. Juarez DeLeon, 185 Wn.2d 478,
489, 374 P.3d 95 (2016) (admission of music found on cell phone to show gang
affiliation improper).6 Accordingly, we reverse the Court of Appeals.
2. PRIOR BAD ACTS
The trial court admitted two video recordings of interviews with Denham
that established he had the sort of sophisticated knowledge about how to bypass
alarms and drill into safes that would have been required to commit this burglary.
Denham argues that the recordings were not properly admitted because knowledge
of sophisticated burglary techniques is not an element of either burglary or
trafficking.
5
If it was properly before us, we might be inclined to agree with our dissenting colleague that
the admission of evidence that most of Denham’s calls were relayed through the cell tower
closest to his Tacoma residence was error. See 8 VTP (Mar. 29, 2018) at 638. Denham,
however, has not brought this challenge, perhaps because the trial judge did not mention the fact
in her oral ruling and the written rulings (prepared by the prosecutor’s office) did not make it a
central fact but simply one of 39 findings of fact. CP at 319-23.
6
Amici contend that cell phones and cell phone records often contain material that is protected
by the First Amendment and ask us to impose the scrupulous exactitude standard used for
warrants on warrants seeking to seize such material. Items presumptively entitled to First
Amendment protection must be described with exacting scrutiny in warrants. Perrone, 119
Wn.2d at 550 (citing United States v. Hale, 784 F.2d 1465, 1469 (9th Cir. 1986)); see also
Charles W. Johnson & Debra L. Stephens, Survey of Washington Search and Seizure Law: 2019
Update, 42 SEATTLE U. L. REV. 1277, 1362 (2019). But given that Denham has not challenged
the warrant on this ground, the record and argument for extending the scrupulous exactitude
standard has not been developed. We decline to consider it here and await a case where it is
more fully presented.
11
State v. Denham, No. 98591-0
“Under ER 404(b) evidence of other crimes, wrongs, or acts is
presumptively inadmissible to prove character and show action in conformity
therewith.” State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995) (citing
Carson v. Fine, 123 Wn.2d 206, 221, 867 P.2d 610 (1994)). However, “such
evidence may be admissible for other purposes ‘such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
or accident.’” Id. (quoting ER 404(b)). Specifically,
[t]o admit evidence of other crimes or wrongs under Washington law, the
trial court must (1) identify the purpose for which the evidence is sought to
be introduced, (2) determine whether the evidence is relevant to prove an
element of the crime charged and (3) weigh the probative value of the
evidence against its prejudicial effect. Additionally, the party offering the
evidence of prior misconduct has the burden of proving by a preponderance
of the evidence that the misconduct actually occurred.
State v. Lough, 125 Wn.2d 847, 853, 889 P.2d 487 (1995) (footnote omitted)
(citing State v. Dennison, 115 Wn.2d 609, 628, 801 P.2d 193 (1990); State v. Benn,
120 Wn.2d 631, 653, 845 P.2d 289 (1993)). Evidence is relevant if it makes a fact
of consequence more probable. Powell, 126 Wn.2d at 259 (citing Dennison, 115
Wn.2d at 628). A trial court’s decision to admit evidence of prior bad acts is
reviewed for abuse of discretion. Id. at 258 (citing Washburn v. Beatt Equip. Co.,
120 Wn.2d 246, 283, 840 P.2d 860 (1992)).
The trial judge properly declined to admit these videos for identity or modus
operandi. Evidence of prior bad acts admitted for modus operandi or identity
12
State v. Denham, No. 98591-0
“must be so unique that mere proof that an accused acted in a certain way at a
certain time creates a high probability that he also committed the act charged.”
State v. Coe, 101 Wn.2d 772, 777, 684 P.2d 668 (1984) (citing United States v.
Silva, 580 F.2d 144, 148 (5th Cir. 1978)). ‘“The device used must be so unusual
and distinctive as to be like a signature.’” Id. (quoting MCCORMICK ON EVIDENCE
§ 190, at 449 (Edward W. Cleary ed., 2d ed. 1972)). Nothing in this record
suggests that entering through a roof hatch, disabling alarms, or drilling through
safes are particularly unusual or distinctive.
Denham analogizes this case to Powell. Powell considered whether the trial
court erred in admitting prior spousal assaults, including attempts to strangle the
victim, in a murder case where the victim was strangled to death. 126 Wn.2d at
247-48. This court found that much of the evidence was properly admitted to show
motive. Id. at 260. We found, however, that the prior bad acts were not admissible
to show intent because intent was not a disputed issue. “Proof of the act of manual
strangulation as well as the other evidence presented in this case established an
intent to kill. Thus, intent is implicit in the doing of the act. The trial court erred
in admitting evidence on this basis.” Id. at 262.
But in Powell, the question was whether the probative value of highly
inflammatory evidence (including prior assaults on the same victim) outweighed
its prejudicial effect in the context of the mens rea element. Here, this evidence
13
State v. Denham, No. 98591-0
was not offered to establish mens rea. The fact Denham had the skills to pull off a
sophisticated burglary has some tendency to make a fact of consequence—that he
did commit this sophisticated burglary—considerably more likely.
We recognize that narrowly read, our case law sometimes suggests that prior
bad act evidence has to be relevant to an element of the crime charged and
sometimes that it merely has to make a fact of consequence more likely. Compare
Powell, 126 Wn.2d at 258, with State v. Vy Thang, 145 Wn.2d 630, 642, 41 P.3d
1159 (2002). That appears to be an artifact of the way the issues were presented
in the individual cases. Evidence is relevant if it makes a fact of consequence
more likely. That is not limited to specific elements.
We hold that the trial court did not abuse its discretion in admitting these
videos. They tended to make a fact of consequence more likely, and they were not
so inflammatory that their prejudicial effect outweighed their probative value.
CONCLUSION
We hold that the warrant application contained sufficient detail to conclude
that evidence of a crime would more likely than not be found in the cell site
location information in telephone company records of Denham’s cell phones and
that the video recordings were properly admitted. Accordingly, we reverse the
Court of Appeals and affirm Denham’s convictions.
14
State v. Denham, No. 98591-0
____________________________
WE CONCUR:
_____________________________ ____________________________
_____________________________ ____________________________
_____________________________ ____________________________
_____________________________ ____________________________
15
State v. Denham (Lynell Avery)
Whitener, J., dissenting
No. 98591-0
WHITENER, J. (dissenting)—Historical cell site location information (CSLI)
is protected by article I, section 7 of our constitution and the Fourth Amendment of
the United States Constitution. State v. Muhammad, 194 Wn.2d 577, 580, 451 P.3d
1060 (2019) (Wiggins, J., lead opinion), 628 (Gordon McCloud, J., opinion);
Carpenter v. United States, ___ U.S. ___, 138 S. Ct. 2206, 2220, 201 L. Ed. 2d 507(2018). Any search of CSLI violates article I, section 7 absent authority of law and
violates the Fourth Amendment when it is unreasonable; both requirements are
satisfied by a valid warrant. State v. Olsen, 189 Wn.2d 118, 126, 399 P.3d 1141(2017); Carpenter, 138 S. Ct. at 2221.
“The warrant requirement is not a mere formality; it ensures that necessary
judgment calls are made ‘by a neutral and detached magistrate,’ not ‘by the officer
engaged in the often competitive enterprise of ferreting out crime.’” Mitchell v.
Wisconsin, __ U.S. __, 139 S. Ct. 2525, 2543, 204 L. Ed. 2d 1040 (2019) (internal
quotation marks omitted) (quoting Schmerber v. California, 384 U.S. 757, 770, 86
S. Ct. 1826, 16 L. Ed. 2d 908 (1966)). This holds truer still in Washington state,
where “[w]e have repeatedly recognized that the[ ] ‘privacy protections [provided
State v. Denham (Lynell Avery), No. 98591-0
Whitener, J., dissenting
by article I, section 7 of our constitution] are more extensive than those provided
under the Fourth Amendment.’” State v. Peck, 194 Wn.2d 148, 169, 449 P.3d 235(2019) (quoting State v. Valdez, 167 Wn.2d 761, 772, 224 P.3d 751 (2009)). For a
warrant to properly issue in Washington, we have long required that warrant
applications demonstrate specific factual nexus between the alleged criminal activity
and the target of a search. State v. Thein, 138 Wn.2d 133, 140, 147-48, 977 P.2d 582(1999).
Today, the majority upholds the issuance of a warrant to search CSLI based
on the assumption that cell phone owners typically keep their phones on them at all
times. Under this rule, it appears that the only facts needed to support a warrant for
a search of CSLI are that someone owned a cell phone and that there is probable
cause to believe that they committed a crime around the time they owned that phone.
With this rule in place, a warrant to search CSLI issues almost automatically,
transforming the warrant requirement into a “mere formality,” Mitchell, 139 S. Ct.
at 2543, and making cell phones into “‘24-hour’ surveillance tool[s].” Muhammad,
194 Wn.2d at 585 (Wiggins, J., lead opinion). Such limited protection is not what
the state and federal constitutions demand.
Precedent requires the opposite conclusion. In Lynell Avery Denham’s case,
the affidavits supporting the application for the warrant lacked probable cause to
search the CSLI because they lacked the required nexus between the crime of
2
State v. Denham (Lynell Avery), No. 98591-0
Whitener, J., dissenting
burglary and the CSLI—or, indeed, between burglary and the cell phones
themselves. The affidavits instead dealt only in generalities and lacked particularity
and, thus, were insufficient to establish probable cause. See Thein, 138 Wn.2d at
147-48. The search therefore violated article I, section 7 and the Fourth Amendment.
Allowing this evidence in was not harmless; I therefore would affirm the Court of
Appeals in part: we must vacate Denham’s convictions and remand for a new trial
with the CSLI evidence suppressed.1
ANALYSIS
The privacy concerns posed by cell phones emerged as the technology
developed over the past decades. When the first cell phones were introduced to the
public, in the 1980s, they were expensive and ungainly. Kimberly L. Rhodes & Brian
Kunis, Walking the Wire in the Wireless World: Legal and Policy Implications of
Mobile Computing, 16 J. TECH. L. & POL’Y 25, 27. (2011). It took further decades of
innovations, including the introduction of e-mail and other online connectivity, for
cell phones to become the items they are now. See id. at 28-29. Today, cell phones
are ubiquitous. Muhammad, 194 Wn.2d at 584 (Wiggins, J., lead opinion). When the
Carpenter decision published, in 2018, there were “396 million cell phone service
accounts in the United States—for a Nation of 326 million people.” 138 S. Ct. at1
I agree with the majority as to Part II of its opinion. Nevertheless, I would vacate the trial
verdict and remand for a new trial with the CSLI suppressed for reasons discussed below.
3
State v. Denham (Lynell Avery), No. 98591-0
Whitener, J., dissenting
2211. Their modern functions pose great threats to constitutional privacy. See
Muhammad, 194 Wn.2d at 584 (Wiggins, J., lead opinion). “Of particular concern
is a phone’s ability to operate as a ‘24-hour’ surveillance tool, collecting and
transmitting information about the location of the phone and its user.” Id. at 584-85.
“‘Cell phones continuously scan their environment looking for the best signal, which
generally comes from the closest cell site. Most modern devices, such as
smartphones, tap into the wireless network several times a minute whenever their
signal is on, even if the owner is not using one of the phone’s features. Each time
the phone connects to a cell site, it generates a time-stamped record known as cell-
site location information (CSLI).’” Id. at 585 (quoting Carpenter, 138 S. Ct. at
2211).
In this case, historical CSLI, obtained via warrant, was used at trial to show
that Denham was in the vicinity of Mallinak Designs Jewelers the night it was
burglarized. Under the rules set forth in our precedent, the CSLI was improperly
admitted because the application for the warrant dealt in generalities, lacking
particularized facts. Additionally, the warrant was overbroad because it sought CSLI
for months after the date of the crime. These errors were not harmless and demand
vacation of the trial verdict.
4
State v. Denham (Lynell Avery), No. 98591-0
Whitener, J., dissenting
I. The trial verdict must be vacated because of the lack of nexus between the
CSLI and the crime
A. The CSLI was improperly admitted
A search warrant must be based on probable cause. Thein, 138 Wn.2d at 140.
“An application for a warrant must state the underlying facts and circumstances on
which it is based in order to facilitate a detached and independent evaluation of the
evidence by the issuing magistrate.” Id. “Probable cause exists if the affidavit in
support of the warrant sets forth 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.” Id.“Accordingly, ‘probable cause requires a nexus between criminal activity and the
item to be seized, and also a nexus between the item to be seized and the place to be
searched.’” Id. (quoting State v. Goble, 88 Wn. App. 503, 509, 945 P.2d 263 (1997)).
“Although we defer to the magistrate’s determination, the trial court’s assessment of
probable cause is a legal conclusion we review de novo.” State v. Neth, 165 Wn.2d
177, 182, 196 P.3d 658 (2008).
Warrant applications must contain a “sufficient basis in fact from which to
conclude [that] evidence of illegal activity will likely be found at the place to be
searched.” Thein, 138 Wn.2d at 147. Without a sufficient basis in fact, “a reasonable
nexus is not established as a matter of law,” rendering the warrant invalid. Id. Thus
“probable cause [must] be based on more than conclusory predictions,” and there is
5
State v. Denham (Lynell Avery), No. 98591-0
Whitener, J., dissenting
a “required showing of reasonably specific ‘underlying circumstances’ that establish
evidence of illegal activity will likely be found in the place to be searched in any
particular case.” Id. at 147-48.
Nexus is absent here due to a lack of sufficient specific basis in fact necessary
to conclude that there was a connection between the CSLI and Denham’s crime. At
no point in the affidavit in support of the warrant, or its supplement, can be found
any factual statement linking the CSLI to the crime. Specific references to Denham’s
cell phones and his usage of them are scant. We are told that Denham gave his phone
number to a man to whom he was trying to sell some (allegedly stolen) jewelry—
but that says nothing about his having the phone on him at the time of the crime.
Suppl. Clerk’s Papers (CP) at 421. We learn that in “prior arrests of Denham, he
used two way radios to communicate with other suspects during the commission of
his crimes,” and that “cellular phones being easier to obtain and Denham having two
cellular phones, . . . evidence of the above listed crimes may be on his cellular
phones.” Id. at 423-24. It goes without saying that two-way radios, harder to obtain
or not, are not cell phones. His prior use of two-way radios better supports the
inference that Denham would use radios instead of cell phones, not an inference that
he used a cell phone during the crime.
The applications also contain boilerplate language regarding cell phone
location data, which discusses at length the commonly known fact that people have
6
State v. Denham (Lynell Avery), No. 98591-0
Whitener, J., dissenting
cell phones on their persons often and that therefore the location data can be used to
determine where a person was when a particular crime was committed. Id. at 424.
This boilerplate language repeats, in slightly expanded form, in the addendum to the
application for the search warrant, where it discusses how CSLI is tracked by cell
phone towers. Id. at 439.
Nothing in the applications for the warrant provides nexus between the
information sought and the thing to be searched. We know only that Denham may
have committed a crime, owns cell phones, that cell phones track location data, and
that people often keep their cell phones nearby. “Blanket inferences of this kind
substitute generalities for the required showing of reasonably specific ‘underlying
circumstances’” and cannot establish probable cause in this case. Thein, 138 Wn.2d
at 147-48.
Yet the only way to conclude from the affidavits that the CSLI was linked to
the crime is to make use of just such “blanket inferences,” to rely on “broad
generalizations”—that is, to revive the very arguments we rejected in Thein. Id. at
148-49. That is precisely the path the majority takes. It asserts that “[r]eading the
affidavits as a whole, the judge could reasonably infer that evidence of the burglary
would be found in Denham’s cell site location information.” Majority at 10. It cites
the fact that Denham provided the phone numbers to various businesses to show he
owned the phones. Id. at 9. It invokes “specific facts suggesting he had the phones
7
State v. Denham (Lynell Avery), No. 98591-0
Whitener, J., dissenting
days before and after the date in question.” Id. at 8-9. However, there appears to be
only the somewhat general fact of Denham’s providing his phone numbers to his
probation officers—without any indication of when this happened, when these
phones were used or when he actually possessed the phones—and his giving a
number to one of the jewelry store owners, though the affidavit is unclear about what
number this is. Suppl. CP at 421, 423. In sum, the information the majority relies on
establishes only that around the time of the crime, Denham had cell phones—like
many people in the second decade of the 21st century. The majority fails to link
them, and the CSLI, to the crime.
The majority’s troubling reasoning is applicable to more than cell phones.
Providing no limiting principle, the majority not only permits search of cell phone
location data based on generalities, it opens the door to basing any search warrant
on generalities. Indeed, the majority makes this consequence of its opinion explicit.
The majority asserts that Thein merely held “that a search warrant cannot be based
on generalizations about the supposed common habits of drug dealers.” Majority at
9 n.4 (emphasis added). But Thein was not limited to generalizations about drug
dealers; it dealt with generalizations in any circumstance. 138 Wn.2d at 148-49. It
commands that “[a]lthough common sense and experience inform the inferences
reasonably to be drawn from the facts, broad generalizations do not alone establish
probable cause.” Id. By holding that probable cause for a search warrant can be
8
State v. Denham (Lynell Avery), No. 98591-0
Whitener, J., dissenting
shown through such generalizations—except, apparently, in the case of drug
dealers—the majority effectively overrules Thein.
Thein itself was nearly identical to this case. Were the majority to follow
Thein, it would be precluded from reaching its current outcome. In Thein, the police
submitted affidavits to obtain a search warrant of Thein’s residence; the warrant
issued. 138 Wn.2d at 139-40. The affidavits “contained generalized statements of
belief regarding the common habits of drug dealers.” Id. at 138. These “generalized
statements of belief” were, in substance and form, essentially the same as the
generalized statements regarding criminals and their use of cell phones in this case.
Id. They read:
“Based on my experience and training, as well as the
corporate knowledge and experience of other fellow law
enforcement officers, I am aware that it is generally a common
practice for drug traffickers to store at least a portion of their
drug inventory and drug related paraphernalia in their common
residences. It is generally a common practice for drug traffickers
to maintain in their residences records relating to drug trafficking
activities, including records maintained on personal computers.
Because drug traffickers will in many instances ‘front’ (i.e., sell on
consignment) controlled substances in full or partial quantities to
their distributors or from their suppliers, such record keeping is
necessary to keep track of amounts paid and owed. These records
will also be maintained close at hand so as to readily ascertain
current balances. Telephone/address listings of clients must
be maintained and immediately available in order to efficiently
conduct their drug trafficking business. Moreover, it is generally a
common practice for traffickers to conceal at their residences
large sums of money, either the proceeds of drug sales or to utilized
[sic] to purchase controlled substances. In this vein, drug traffickers
typically make use of currency, wire transfers, cashiers checks and
money orders to pay
9
State v. Denham (Lynell Avery), No. 98591-0
Whitener, J., dissenting
for controlled substances. Evidence of such financial transactions and
records related to incoming expenditures of money and wealth in
connection with drug trafficking would also typically be maintained in
residences.
“I know from previous training and experiences that it is
common practice for drug traffickers to maintain firearms, other
weapons and ammunition in their residences for the purpose of
protecting their drug inventory and drug proceeds[.] I am aware
from my own experience and training that it is common practice for
[sic] from law enforcement, but more commonly, from other drug
traffickers who may attempt to ‘rip them off.’ Firearms and
ammunition have been recovered in the majority of residence
searches in the drug investigations in which I have been involved.”
Id. at 138-39 (alterations in original) (quoting record). It was these generalizations,
combined with information indicating that Thein was involved with drug dealing
and that Thein had a residence, that the police used to apply for and obtain a search
warrant of Thein’s residence. Id. at 139.
The information supporting the search warrant here was essentially the
same—with cell phones replacing residences:
Through experience and training, I know that cellular service providers,
routinely, in the regular course of business, collect and retain
information related to their customer/subscriber accounts, for purposes
of billing; for diagnostic and maintenance reasons; for managing traffic
on their equipment; and for fraud detection and prevention. Telephone
service providers also maintain records identifying related accounts or
phone numbers, such as when an account uses multiple telephones, or
a person uses multiple accounts. The information collected and
maintained includes data related to subscriber information, account
registration, credit information, billing and airtime records, outbound
and inbound call/communication detail, location information for the
device (derived from signals to and from the device via cellular phone
towers and/or satellite), per call measurement data (PCMD), connection
10
State v. Denham (Lynell Avery), No. 98591-0
Whitener, J., dissenting
time and dates, Internet routing information (Internet Protocol
numbers), and message content, that may assist in the identification of
person/s accessing and utilizing the account; and the identification of
other persons who are associated with the person accessing the account
and who may be witnesses or conspirators, or that may in other ways
be evidence of or pertain to the above-listed crime(s). Cellular
telephone providers routinely store email and voice mail messages in
company servers, at least until the message has been retrieved by its
intended recipient. Some cellular telephone service providers also
provide “cloud storage” space for customers who want to save SMS
[short message service], pictures, and the like. Cellular telephone
service providers typically retain all records for their customer accounts
for the life of the account, and most retain records regarding the account
for some time after an account is closed.
I know from training and experience that people own cellular
telephones and other portable electronic devices for the purpose of
being able to use them wherever they are, and as such carry them
virtually constantly, or are nearly always within the near vicinity of
their cell phones and/or portable devices, Based on my experience,
those involved in criminal enterprises sometimes will use multiple
phones in the commission of crimes, to facilitate criminal activity,
and/or to avoid detection by law enforcement. They also sometimes
possess multiple phones to have a secondary means of communication
if a phone is lost or seized by law enforcement. I also know through my
training and experience that criminals also use cellular phones to
document criminal activities through photographs, videos, and digital
or voice memos, and that these cellular telephone users share this data
with others by sending it via one of the many ways that cellular
telephones can be used. For example, communication between suspects
and other involved parties or witnesses can occur through typical
cellular phone calls, instant messaging, text messages, chat sessions,
email, and social networking websites. These communications can
reveal evidence and/or facts pertaining to the above-listed crimes.
When a cellular telephone or other electronic device is turned on to
register its availability to receive communications on the network, or
when the device actually sends or receives communications, it will
communicate with a cell tower or satellite within its radio frequency
range. Cellular service providers maintain data that can be used to
11
State v. Denham (Lynell Avery), No. 98591-0
Whitener, J., dissenting
generally locate a cellular telephone at a particular point in time. These
include cell site maps, per call measurement data, and/or signal testing
results for their networks, including round trip signal testing data, that
show the geographical location of all cell sites within its service area.
Using the cell site geographical information or GPS information,
officers would be able to determine the physical location of the
individual using a particular cellular telephone. Some cell phones or
other electronic communication devices additionally communicate
their physical location, in precise terms (such as longitude and latitude),
to the provider via global positioning system (“GPS”) satellite or
multilateration (e.g. triangulated signals off three or more towers)
measurements that are shared with or accessible to the provider owing
to software settings and terms of service (TOS) agreements. This
information is often evidence of or pertaining to criminal activity in that
it enables law enforcement to locate a suspect at the time of a crime,
either at or away from a crime scene, and can be used to assist and
corroborate surveillance officers’ observations and anticipate future
movements and locations of the suspect and/or his or her criminal
associates, by establishing his or her communication and location habit
patterns over time. For example, if the telephone consistently signals
the same tower both late at night and in the early morning hours, it is
reasonable to conclude that the suspect is living, sleeping, hiding or
working at a night job in that vicinity.
Suppl. CP at 438-39. It was these generalizations, alongside the suspicion that
Denham burglarized the jewelry store and the fact that Denham owned cell phones,
that supported the application for the warrant for the CSLI. In other words, the
application for the warrant had the same form and structure as the application for the
warrant in Thein.
In Thein, as noted above, we held that the “generalized statements contained
in the affidavits in this case were, standing alone, insufficient to establish probable
cause to search Thein’s . . . residence.” 138 Wn.2d at 148. We specifically disagreed
12
State v. Denham (Lynell Avery), No. 98591-0
Whitener, J., dissenting
with the opposite conclusion reached by the Court of Appeals, characterizing it as
“a generalized conclusion that drug dealers are likely to keep evidence of illegal drug
dealing in their homes.” Id. at 150. Just as in Thein, the affidavits here lack anything
actually tying the cell phones to the crime beyond generalizations. Thus, we must
follow the precedent set by Thein rather than discard it, as the majority does. Indeed,
the majority does not just discard Thein: it presents essentially the same argument
we rejected in Thein, with minor modifications: “that a nexus is established between
the items . . . to be searched where there is sufficient evidence to believe a suspect
is probably involved in [criminal activity] and the suspect [owns] . . . the [phone] to
be searched.” Thein, 138 Wn.2d at 141. We rejected this decades ago, and so should
we reject it today.
Perhaps out of necessity—as Thein so clearly demands affirming the Court of
Appeals—the majority relies not on Thein but on a United States Supreme Court
case, Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), to
reach the opposite conclusion. Gates, however, is almost entirely inapposite. In
Gates, the police “received by mail an anonymous handwritten letter” regarding the
purported drug dealing of Gates and his wife. Id. at 225. The letter contained highly
specific details describing the next time the couple would obtain drugs from Florida
and drive them back to Illinois. Id. The police pursued this lead. Id. at 225-26.
13
State v. Denham (Lynell Avery), No. 98591-0
Whitener, J., dissenting
Through various investigations and observations, the police confirmed the contents
of the letter. Id. at 226-27.
The Supreme Court noted that the letter alone would likely not have been
enough to establish probable cause. Id. at 227. However, applying a totality of the
circumstances test, the Court held that there was probable cause, between the
anonymous letter and the affidavit describing investigations that corroborated the
contents of the letter, to obtain the search warrant. Id. at 241-46.
What Gates has to say about generalized statements in warrants is a mystery.
After all, Gates concerns corroborating an anonymous tip, a situation not before the
court today. Nor does Gates have anything to say about cell phones—it cannot, given
that Gates was decided in 1983, the same year that cell phones became publicly
available in the United States. Rhodes & Kunis, supra, at 27. Gates, applied here,
does not help the majority reach the result it prefers. Instead, the majority’s reliance
on Gates only furthers the evisceration of our precedent.
B. This error was not harmless
Admitting the CSLI evidence was not harmless. “[I]f trial error is of
constitutional magnitude, prejudice is presumed and the State bears the burden of
proving it was harmless beyond a reasonable doubt.” State v. Coristine, 177 Wn.2d
370, 380, 300 P.3d 400 (2013). “A constitutional error is harmless if ‘it appears
beyond a reasonable doubt that the error complained of did not contribute to the
14
State v. Denham (Lynell Avery), No. 98591-0
Whitener, J., dissenting
verdict obtained.’” State v. A.M., 194 Wn.2d 33, 41, 448 P.3d 35 (2019) (internal
quotation marks omitted) (quoting State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889(2002)). Thus, “‘[a]n error is not harmless beyond a reasonable doubt where there is
a reasonable probability that the outcome of the trial would have been different had
the error not occurred.’” Id. (quoting State v. Powell, 126 Wn.2d 244, 267, 893 P.2d
615 (1995)). “‘A reasonable probability exists when confidence in the outcome of
the trial is undermined.’” Id. (quoting Powell, 126 Wn.2d at 267).
The CSLI evidence should have been suppressed because it was obtained in
violation of the state constitution. See, e.g., State v. Schultz, 170 Wn.2d 746, 760 n.6,
248 P.3d 484 (2011) (discussing suppression for violations of article I, section 7 of
the state constitution). The question therefore becomes whether, absent the CSLI, is
there a “‘reasonable probability that the outcome of the trial would have been
different had’” that evidence not been admitted? A.M., 194 Wn.2d at 41 (quoting
Powell, 126 Wn.2d at 267).
The answer is yes. Without the CSLI, there is almost no evidence linking
Denham to the scene of the crime and, thus, to the crime itself. Without it, we are
left with the following: headlamps found at Denham’s residence that trial testimony
indicated was “basically an exact match to the plastic cap that was found in Mr.
Mallinak’s jewelry store,” 10 Verbatim Tr. of Proceedings (VTP) (April 3, 2018) at
930-31; photos of items found in Denham’s residence, including wire crimpers,
15
State v. Denham (Lynell Avery), No. 98591-0
Whitener, J., dissenting
cutting oil, drawings of electrical schematics and safes’ locking mechanisms,
devices to see through drilled holes, and books about electronics, id. at 941-46; and
Denham’s prior statements, from years before, about various burglary methods
similar to the one employed in this crime. That is not enough to conclude beyond a
reasonable doubt that the trial outcome would have been the same. See A.M., 194
Wn.2d at 41.
Denham did possess stolen property from the jewelry store. But “proof of
possession of recently stolen property, unless accompanied by other evidence of
guilt, is not prima facie evidence of burglary.” State v. Mace, 97 Wn.2d 840, 843,
650 P.2d 217 (1982). Such other evidence includes “flight or the presence of the
accused near the scene of the crime.” Id. It is precisely such evidence that is absent
without the CSLI. Nothing else connects Denham to the crime directly. No usable
prints of his or any DNA determined to belong to him were found at the crime scene.
10 VTP (Apr. 3, 2018) at 952-53. There was simply an array of items and facts that
loosely connect Denham to the crime—but only loosely. Indeed, the CSLI was
crucial to the trial court’s finding Denham guilty of second degree burglary. CP at
322-23. Without the CSLI, there is a reasonable probability that the trial outcome
would have been different. See A.M., 194 Wn.2d at 41.
But for this error, Denham’s conviction for first degree trafficking cannot be
affirmed, either. Although much of the evidence for this charge came from
16
State v. Denham (Lynell Avery), No. 98591-0
Whitener, J., dissenting
elsewhere, crucial to the trial court’s conclusion that Denham knew the property was
stolen was that “he was the one who stole it.” CP at 323. Without the CSLI, the
finding that Denham was the burglar cannot stand—and neither can the conclusion
that Denham was guilty of first degree trafficking. See A.M., 194 Wn.2d at 41.
II. The overbreadth of the warrant also demands vacating the trial verdict
Vacating the trial verdict is also necessary because of the overbreadth of the
warrant. Law enforcement sought CSLI for a vast amount of time: from November
11, 2016— around when the burglary occurred—until the present date of the warrant
application, April 20, 2017. Suppl. CP at 441-42. This warrant, which retroactively
surveilled Denham for months after the robbery, was overbroad. See Thein, 138
Wn.2d at 149 (“General, exploratory searches are unreasonable, unauthorized, and
invalid.”); State v. Riley, 121 Wn.2d 22, 28, 846 P.2d 1365 (1993) (holding a warrant
that “permitted the seizure of broad categories of material and was not limited by
reference to any specific criminal activity . . . was overbroad and invalid”).
When the warrant was issued for this search, the fears articulated by the
United States Supreme Court regarding historical CSLI were realized: Denham’s
phone was transformed into a device that provided the State with his constant
whereabouts for months at a time, without a constitutional basis to do so. See
Carpenter 138 S. Ct. at 2218 (“[W]hen the Government tracks the location of a cell
17
State v. Denham (Lynell Avery), No. 98591-0
Whitener, J., dissenting
phone it achieves near perfect surveillance, as if it had attached an ankle monitor to
the phone’s user.”).
The majority notes that “[t]he State properly concedes that the warrant was
overbroad because there was no probable cause supporting the conclusion that
evidence of a crime would be found in all of the categories of information listed.”
Majority at 6 n.2. Such overbroad material includes the— “location data acquired
after the charging period.” Id. Indeed, the majority even notes that any evidence
admitted from the overbroad portions of the warrant should have been suppressed.
Id. Yet the majority treats this as irrelevant, instead, asserting that “nothing in the
trial judge’s findings of fact suggests she relied on evidence seized under overbroad
portions of the warrant.” Majority at 10-11. Not so. The majority fails to
acknowledge that CSLI drawn from outside the charging period 2—obtained based
on the overbroad portions of the warrant application—was central to the trial court’s
conclusion that Denham committed the burglary. The trial court specifically noted
that “[a]ccording to the records, the phone had never utilized any other towers in
Kirkland at any time during those months” for which CSLI was obtained. CP at 322
(emphasis added); see also 8 VTP (Mar. 29, 2018) at 638 (noting that the “most
frequently used [cell phone] tower” was “in Tacoma . . . within a mile of the Denham
2
The charging period for burglary was November 11 through November 14, 2016; for
trafficking, the period was November 15 through November 19, 2016. CP at 1.
18
State v. Denham (Lynell Avery), No. 98591-0
Whitener, J., dissenting
residence”). It thus cannot be said that “nothing in the trial judge’s findings of fact
suggests she relied on evidence seized under overbroad portions of the warrant,” as
the majority claims. Majority at 10-11 (emphasis added).
Admission of this information was not harmless, due to the trial court’s
reliance on it to reach its verdict. See A.M., 194 Wn.2d at 41. As noted, “‘[a]n error
is not harmless beyond a reasonable doubt where there is a reasonable probability
that the outcome of the trial would have been different had the error not occurred.’”
Id. (quoting Powell, 126 Wn.2d at 267). “‘A reasonable probability exists when
confidence in the outcome of the trial is undermined.’” Id. (quoting Powell, 126
Wn.2d at 267). Here, confidence in the outcome of the trial is undermined because
the trial court relied on evidence obtained by the overbroad warrant to find Denham
guilty of burglary. It follows that there is a reasonable probability that the trial
outcome would have been different without the overbroad warrant, meaning that the
admission of evidence based on the overbroad warrant was not harmless beyond a
reasonable doubt. See id.For this reason as well, we should affirm the Court of Appeals, vacating the
trial verdict and remanding for a new trial with the direction to suppress the CSLI
evidence obtained by the overbroad warrant. 3
3
While the majority declines to reach this issue in part on the ground that Denham did not
raise it, it seems strange to refrain from doing so, especially when, as the majority notes,
19
State v. Denham (Lynell Avery), No. 98591-0
Whitener, J., dissenting
CONCLUSION
The Supreme Court has made clear that it “is obligated[,] as ‘[s]ubtler and
more far-reaching means of invading privacy have become available to the
Government[,]’ to ensure that the ‘progress of science’ does not erode Fourth
Amendment protections.” Carpenter, 138 S. Ct. at 2223 (quoting Olmstead v. United
States, 277 U.S. 438, 473-74, 48 S. Ct. 564, 72 L. Ed. 944 (1928) (Brandeis, J.,
dissenting), overruled in part by Katz v. United States, 389 U.S. 347, 88 S. Ct. 507,
19 L. Ed. 2d 576 (1967)). So, too, are we. As more and more people use increasingly
advanced technology that tracks their every movement in an “inescapable and
automatic” manner, we must not let our protections against governmental intrusion
into individuals’ privacy slacken. Id. Yet the majority risks just that: merely because
Denham had cell phones, and merely because cell phones track location information,
the majority holds that the issuance of the warrant for the CSLI was proper. Our
precedent does not permit warrants to issue based on such generalities. Nor does it
permit issuance of warrants with so broad of a reach.
We should affirm the Court of Appeals with respect to the improper admission
of the CSLI and remand for a new trial with the CSLI evidence suppressed.
the State itself conceded that these portions of the warrant were overbroad. Majority at 4,
6 n.2; see also Wash. Supreme Court oral argument, State v. Denham, No. 98591-0 (Jan.
21, 2021), at 17 min., 24 sec., video recording by TVW, Washington State’s Public Affairs
Network, www.tvw.org (State appearing to concede this point).
20
State v. Denham (Lynell Avery), No. 98591-0
Whitener, J., dissenting
I respectfully dissent.
21