State Of Washington v. Gaspar Ortiz-ortiz ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
) No. 77436-1-1
Respondent, )
) DIVISION ONE
v. )
)
GASPAR ORTIZ-ORTIZ ) UNPUBLISHED OPINION
)
Appellant. ) FILED: March 11,2019
)
SMITH, J. — Gaspar Ortiz-Ortiz appeals his voyeurism conviction and a
condition of community custody. Citing article I, section 7 of the Washington
Constitution, he argues that the trial court erred by failing to suppress evidence
collected pursuant to a second search warrant after the first warrant was found
illegal. Because the State did not seek the second warrant based on the first
illegal search, the independent source exception to the exclusionary rule applies
and we affirm the conviction. However, we agree that the sentencing court
exceeded its authority by ordering the challenged community custody condition
and reverse and remand for the court to strike that condition.
FACTS
On August 13, 2016, J.M. went to a WinCo grocery store. Soon after
entering, she noticed Ortiz-Ortiz staring at her. Unbeknownst to J.M., Ortiz-Ortiz
followed her around the store, taking pictures of her with his cell phone. At one
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point, he bent down close to J.M., placed his phone underneath her dress, and
took a video of her upper thighs. Another shopper noticed and confronted Ortiz-
Ortiz. WinCo employees stopped Ortiz-Ortiz from leaving the store and called
the police.
While they waited, Ortiz-Ortiz kept putting his hand in his pocket, handling
his phone. It appeared as though he was trying to delete pictures from his
phone. The police arrived, interviewed witnesses, and arrested Ortiz-Ortiz. They
seized his cell phone and impounded it into evidence.
On August 15, 2016, police obtained a warrant to search the cell phone for
"[a]ny and all (including deleted) photos or videos related to this investigation of
voyeurism." Officers seized 585 photos and video files, and Ortiz-Ortiz was
charged with voyeurism. Ortiz-Ortiz moved to suppress the evidence collected
from his cell phone. On June 5, 2017, the court granted the motion and
suppressed the cell phone evidence, reasoning that the search warrant lacked
sufficient particularity. On the same day, police obtained a warrant to search
Ortiz-Ortiz's phone for "[p]hotos or videos related to this investigation of
voyeurism at WinCo in Bellingham, Washington, taken of[J.M.](17 year old
female wearing a maroon striped dress) on August 13th, 2016." A search of the
phone revealed 18 photos of J.M. stored in a folder, where data can remain after
it is deleted. The defendant again moved to suppress the evidence collected in
the second search. The trial court denied the motion.
A jury found Ortiz-Ortiz guilty of voyeurism. In sentencing, the court
ordered that Ortiz-Ortiz "[c]omplete a mental health evaluation and comply with
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any recommended treatment" as a community custody condition. Ortiz-Ortiz
appeals the denial of his motion to suppress the second search and the mental
health community custody condition.
DISCUSSION
Ortiz-Ortiz argues that the trial court erred by declining to suppress the
evidence obtained in the second search. He contends that the evidence should
be suppressed because the independent source exception to the exclusionary
rule does not apply in these circumstances.
We review de novo conclusions of law relating to the suppression of
evidence. State v. Gaines, 154 Wash. 2d 711, 716, 116 P.3d 993 (2005). The
exclusionary rule generally requires that evidence obtained from an illegal search
and seizure be suppressed. Gaines, 154 Wash. 2d at 716-17. This includes the
initially seized evidence and any fruit of the poisonous tree. Gaines, 154 Wash. 2d
at 716-17; Wong Sun v. United States, 371 U.S. 471,484-85, 83 S. Ct. 407, 9 L.
Ed. 2d 441 (1963). "The independent source doctrine is a well-established
exception to the exclusionary rule." State v. Betancourth, 190 Wash. 2d 357, 364,
413 P.3d 566 (2018). "Under the independent source doctrine, evidence tainted
by unlawful police action is not subject to exclusion 'provided that it ultimately is
obtained pursuant to a valid warrant or other lawful means independent of the
unlawful action." Betancourth, 190 Wash. 2d at 364-65 (quoting Gaines, 154
Wash. 2d at 718).
When applying the independent source doctrine, the determinative
question is whether the challenged evidence was discovered through a source
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independent from the initial illegality. Betancourth, 190 Wash. 2d at 365 (citing
Murray v. United States, 487 U.S. 533, 542, 108 S. Ct. 2529, 101 L. Ed. 2d 472
(1988)). "To determine whether challenged evidence truly has an independent
source, courts ask whether illegally obtained information affected (1) the
magistrate's decision to issue the warrant or (2) the decision of the state agents
to seek the warrant." Betancourth, 190 Wash. 2d at 365. If the illegal search did not
contribute to the issuance of the warrant, "then the evidence is admissible
through the lawful warrant under the independent source doctrine." Betancourth,
190 Wash. 2d at 365.
Under Betancourth, the independent source doctrine applies here. 190
Wash. 2d at 364. In Betancourth, a district court granted a search warrant, ordering
an out-of-state cell phone carrier to provide records. The carrier provided the
records. Later, the superior court ruled that it alone had jurisdiction to issue out-
of-state warrants. So a detective requested and obtained a warrant from the
superior court, using an affidavit that was essentially identical to that used for the
district court warrant. The detective sent the new warrant to the cell phone
carrier. Because it did not request any new information, the carrier did not
produce any records. Betancourth, 190 Wash. 2d at 362.
The Washington Supreme Court held that the independent source
doctrine applied, and the cell phone records were admissible under the new,
lawful warrant. It reasoned that the new warrant was "untainted by any prior
illegality" because the "decision to issue the 2013 superior court warrant[was
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not] affected by, or made in reliance on, information obtained from the illegal
search." Betancourth, 190 Wash. 2d at 370.
Here, the second warrant application to search Ortiz-Ortiz's phone did not
contain any information regarding the results of the first invalid search. It merely
added details regarding the crime: "Photos or videos related to this investigation
of voyeurism at WinCo in Bellingham, Washington, taken of [J.M.](17 year old
female wearing a maroon striped dress) on August 13th, 2016." The police
learned these details from their initial investigation, not from the illegal search of
the cell phone. When officers arrived at the WinCo on August 13, 2016, a
witness reported seeing Ortiz-Ortiz take a video up J.M.'s skirt. And the initial
police report reflected that J.M. was wearing a maroon striped dress. The
independent source doctrine applies because officers did not gain any
information from the phone records supplied in response to the illegal warrant
that led them to seek the second warrant. Nor was the trial court's decision to
issue the second warrant affected by, or made in reliance on, information from
the illegal search.
Ortiz-Ortiz argues that the second warrant is not a truly independent
source because it would not have been sought but for the invalid first warrant.
State v. Mayfield, No. 95632-4, slip. op. at(Wash. Feb. 7, 2019),
http://www.courts.wa.gov/opinions/pdf/956324.pdf, expressly rejected this
argument. Mayfield, discussing Betancourth, reasons that
[a]rguably, the original defective warrant was a distant "but for"
cause of discovering the evidence because the State did not seek
the second warrant until it discovered the defect in the first one.
However the evidence itself was untainted because the second,
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valid warrant was a truly independent source. "[T]he illegal search
[pursuant to the defective warrant] in no way contributed to the
issuance of the [valid] warrant and police would have sought the
warrant even absent the initial illegality." Therefore, the State
derived no benefit from the defective first warrant, and the evidence
was admissible.
Mayfield, slip. op. at 22(most alterations in original)(citations omitted)(quoting
Betancourth, 190 Wash. 2d at 365). Under Mayfield and Betancourth, the
independent source doctrine applies even though the State would not have
sought the second warrant but for the first warrant's initial illegality.
The trial court did not err by admitting the evidence collected pursuant to
the second lawful search of Ortiz-Ortiz's phone.
Conditions of Community Custody
Ortiz-Ortiz argues that the trial court exceeded its authority by ordering
mental health evaluation and treatment as a condition of community custody.
The State concedes that this condition of community custody must be stricken
because the sentencing court did not find that Ortiz-Ortiz suffered from mental
illness. A sentencing court may not order mental health evaluation or treatment
unless it makes specific findings that the defendant meets the statutory definition
of a "mentally ill person" and that the mental health condition influenced the
offense. RCW 71.24.025; State v. Brooks, 142 Wash. App. 842, 851, 176 P.3d 549
(2008). The sentencing court made no such findings, so we accept the State's
concession.
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We affirm in part, reverse in part, and remand to the superior court to
strike the challenged community custody condition.
WE CONCUR:
-0Am44%-iL-
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