Personal Restraint Petition Of Martin David Pietz, Jr. ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Personal ) No. 76716-0-1
Restraint of )
) DIVISION ONE
MARTIN DAVID PIETZ JR., )
) UNPUBLISHED OPINION
Petitioner. )
) FILED: August 12, 2019
LEACH, J. — Martin David Pietz collaterally challenges his 2013 conviction
for murder in the second degree. He claims that the trial court's denial of his
request to suppress evidence violated his constitutional protections against
unlawful search and seizure. While the exclusionary rule generally requires the
suppression of evidence seized during an illegal search, an independent source
exception to this rule applies if (1) the magistrate did not base his decision to
issue a warrant on illegally obtained information included in the affidavit and (2)
the State would have sought a warrant regardless of the illegal search. Because
the trial court did not make an express finding about the investigating officer's
motivation as Murray v. United States1 requires, we remand to the trial court for a
reference hearing to resolve this limited issue.
1 487 U.S. 533, 539-40, 108 S. Ct. 2529, 101.L. Ed. 2d 472(1988).
No. 76716-0 -I / 2
FACTS
On January 28, 2006, at 10:20 p.m., Pietz reported his wife, Nicole Pietz,
as a missing person.2 He told a responding officer that she had been asleep
when he got home the night before. And when he woke up that morning, she
was gone. He stated that Nicole could have been wearing a white gold tennis
bracelet when she went missing. Nicole's sister testified that Nicole always wore
a tennis bracelet that Pietz gave her.
On February 6, 2006, someone found Nicole's body in a wooded area in
Burien. Forensic pathologist Brian Mazrim went to the scene. He determined
that Nicole had likely been dead for a week. She had bruises on her face,
elbows, thighs, knee, calves, feet, pelvis, and neck caused by blunt force. She
also had hemorrhaging on both sides of her spine and in her neck and eyes.
Mazrim concluded that Nicole had died due to manual strangulation. No tennis
bracelet was recovered from the scene.
On March 21, 2012, police arrested Pietz on his way into work at Chase
Bank. On March 23, Amber Cowart, Pietz's coworker, called Detective Mike
Mellis. She told Mellis that in October 2011, Pietz had asked her to appraise his
deceased wife's tennis bracelet. Cowart stated that when she placed the
bracelet on her wrist to get an idea of the length of it, Pietz stated, "Oh, my
2 For purposes of clarity, this opinion refers to Martin David Pietz as Pietz
and Nicole Pietz as Nicole.
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No. 76716-0 -I/ 3
gosh. . . . That's so weird. . . . You're wearing my dead wife's bracelet." Cowart
took the bracelet home, made some notes about its description and value on a
sticky note, and then returned the bracelet to Pietz with the note. Cowart called
Mellis again the next day to say that she had spoken with the assistant manager
of the bank, Karla Hansen, that morning. Cowart had asked Hansen about the
note because Cowart knew that Hansen had boxed up Pietz's belongings from
his desk after his arrest. Hansen told Cowart that the sticky note was among
Pietz's belongings in his desk.
Mellis states in his follow-up report that he went to Chase Bank on March
24, 2012, to speak with Hansen. His affidavit for a search warrant states that
Hansen confirmed she had found a sticky note with Cowart's handwriting on it in
Pietz's desk. In a pretrial interview, Hansen stated she did not remember
whether she had the note waiting for Mellis or whether she retrieved it from the
boxes of Pietz's belongings after Mellis arrived at the bank. Mellis reported that
he asked Hansen to show him the note, which she did, offered to photocopy it,
and gave him the copy. "[He] took the photocopy and went to [his] van to start
writing a search warrant affidavit. [He] quickly knew that [he] would not have
enough time to get a warrant and serve it before the branch closed for the day
(1330 hrs on Saturday)."
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Mellis reported that he returned to the bank, and Hansen confirmed that
she had placed all of Pietz's property into three or four boxes. She took him back
to the employee-only area and showed him the stack of boxes. He asked her
whether she was aware of what Cowart had told him about the appraisal of a
bracelet belonging to Pietz. Hansen responded that she did not know, and
Cowart had asked her to look only for a sticky note that morning. He then asked
Hansen whether Pietz had ever talked with her about a woman's bracelet. She
said he had not, but when she was cleaning out his desk, she had found what
she thought was a man's bracelet. Mellis asked if she was sure it was a man's
bracelet and, "without [his] prompting," she opened one of the boxes with Pietz's
property and retrieved a bracelet that she showed Mellis. She then returned the
bracelet to the box. He told her that he would be applying for a search warrant.
When Pietz's trial counsel interviewed Hansen before trial, Hansen's
account of her meeting with Mellis differed from Mellis's in one critical respect.
Hansen stated that when she told Mellis she had seen a bracelet among Pietz's
belongings, Mellis "asked if he could see it." Consistent with Mellis's report, she
stated that she showed him the bracelet and then returned it to the box.
Mellis completed his affidavit for a search warrant on March 25. It
included the information that Cowart and Hansen told him and that he had seen
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No. 76716-0 -I / 5
the sticky note and bracelet. A judge issued a warrant that same day. Mellis
executed the warrant on March 26.
The State charged Pietz with second degree murder. Before trial, Pietz
asked the court for a Franks3 hearing and to suppress the bracelet from
evidence. He did not ask the court to suppress the sticky note. The trial court
denied his request for a Franks hearing and did not rule on the suppression
issue. It explained that even if it held a Franks hearing, decided that Mellis
intentionally misled the court about Hansen offering to show him the bracelet,
and struck from the affidavit that Mellis saw the bracelet, the affidavit would still
establish probable cause.
A jury convicted Pietz as charged. Pietz appealed to this court. In an
unpublished opinion, this court affirmed Pietz's conviction on grounds Pietz does
not raise in this personal restraint petition (PRP).4 The Washington Supreme
Court denied his petition for review. He then filed his PRP, which this court
denied. Our Supreme Court granted discretionary review of this court's decision
and remanded for this court to consider the merits of his PRP.
3Franks v. Delaware, 438 U.S. 154, 171-72, 98 S. Ct. 2674, 57 L. Ed. 2d
667 (1978) (holding that falsehoods in a warrant affidavit may invalidate the
warrant if the defendant shows that they are material and made in reckless
disregard for the truth).
4 State v. Pietz, No. 71162-8-1, slip op. at 1 (Wash. Ct. App. Oct. 12, 2015)
(unpublished), http://www.courts.wa.gov/opinions/pdf/711628.pdf, review denied,
185 Wash. 2d 1020 (2016).
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No. 76716-0-I /6
STANDARD OF REVIEW
An appellate court will reach the merits of a PRP only after the petitioner
makes a threshold showing of either (1) constitutional error that caused him
actual and substantial prejudice or (2) nonconstitutional error constituting a
fundamental defect that resulted in a complete miscarriage of justice.5 The
petitioner must make these showings by a preponderance of the evidence.6
Claims of unlawful search or seizure and ineffective assistance of counsel are
claimed constitutional errors.
ANALYSIS
Suppression of Evidence
First, Pietz contends that the trial court should have suppressed evidence
of the sticky note and the bracelet because Mellis seized them as the result of an
unlawful search. Assuming that the search and seizure of the sticky note and
bracelet were unlawful, the State has satisfied the first prong of the independent
source exception to the exclusionary rule. But resolution of the second prong
requires remand.
A warrantless seizure is per se unreasonable under the Fourth
Amendment to the United States Constitution and article I, section 7 of the
5 In re Pers. Restraint of Davis, 152 Wash. 2d 647, 671-72, 101 P.3d 1
(2004).
6 In re Pers. Restraint of Yates, 177 Wash. 2d 1, 17, 296 P.3d 872(2013).
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No. 76716-0 -I / 7
Washington Constitution unless one of the exceptions to the warrant requirement
applies.7 Generally, evidence seized during an illegal search is suppressed
under the exclusionary rule. In addition, "[w]hen an unconstitutional search or
seizure occurs, all subsequently uncovered evidence becomes fruit of the
poisonous tree and must be suppressed."8 But the United States Supreme Court
and the Washington Supreme Court have recognized an independent source
exception to the exclusionary rule.8
Under this exception, "evidence tainted by unlawful governmental action is
not subject to suppression under the exclusionary rule, provided that it ultimately
is obtained pursuant to a valid warrant or other lawful means independent of the
unlawful action."10 The exception applies if (1) the magistrate did not base a
decision to issue a warrant on illegally obtained information included in the
7 State v. Williams, 102 Wash. 2d 733, 736, 689 P.2d 1065 (1984) (citing
Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564
(1971)). The Fourth Amendment, made applicable to the states through the
Fourteenth Amendment, provides that "(tThe right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated." Article I, section 7 of the Washington
Constitution states that "[n]o person shall be disturbed in his private affairs, or his
home invaded, without authority of law." Article I, section 7 places a greater
emphasis on the right to privacy than the Fourth Amendment. State v. Young,
123 Wash. 2d 173, 179, 867 P.2d 593(1994).
8 State v. Ladson, 138 Wash. 2d 343, 359, 979 P.2d 833(1999).
9 State v. Gaines, 154 Wash. 2d 711, 717, 116 P.3d 993(2005).
19 Gaines, 154 Wash. 2d at 718.
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No. 76716-0 -1/8
affidavit and (2) the State would have sought a warrant regardless of the illegal
search.11
Pietz contends that the State must satisfy the prongs of the independent
source doctrine by clear and convincing evidence. He asserts that although the
federal courts require that the State must prove an independent source by a
preponderance of the evidence, Washington, like New Jersey, requires that the
State prove an independent source by clear and convincing evidence. The only
Washington case that Pietz cites to support this proposition is State v.
Redmond.12 There, on direct appeal, our Supreme Court examined whether
clear and convincing evidence showed a witness was able to make an in-court
identification of Redmond independently of the police lineup.13 But because
Pietz has the burden in this PRP of proving a constitutional error that caused him
actual and substantial prejudice, we do not consider what the State must prove at
trial or on direct appeal to establish an independent source.
A. The Magistrate's Decision To Issue a Warrant
Pietz contends that the magistrate would not have issued a warrant but for
the unlawful information in Mellis's affidavit for a search warrant. We disagree.
11 State v. Miles, 159 Wash. App. 282, 294, 296-97, 244 P.3d 1030 (2011).
12 75 Wash. 2d 62, 448 P.2d 938 (1968).
13 Redmond, 75 Wash. 2d at 64-66.
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No. 76716-0-I / 9
A warrant affidavit that contains illegally obtained information is not per se
invalid if it contains facts independent of the illegally obtained information
sufficient to establish probable cause.14 This inquiry under the first prong of the
independent source doctrine is similar to that under Franks, which allows a court
to consider whether probable cause exists only after striking any reference to
information gained from any illegal search.15 "Probable cause exists where the
facts and circumstances within the arresting officer's knowledge and of which the
officer has reasonably trustworthy information are sufficient to warrant a person
of reasonable caution in a belief that an offense has been committed. Probable
cause is not a technical inquiry."16 This determination rests on "the totality of
facts and circumstances within the officer's knowledge at the time of the arrest."17
Cowart called Mellis on March 24, 2012, and told him that bank employee
Hansen had seen among Pietz's personal belongings at the bank the sticky note
on which she had written her appraisal conclusions about the bracelet. And
before Mellis asked Hansen to see the note during their meeting at the bank, she
told him that she had found a sticky note with Cowart's handwriting in Pietz's
desk. This is sufficient to establish probable cause for a warrant to seize the
14 Gaines, 154 Wash. 2d at 718.
15 State v. Spring, 128 Wash. App. 398, 405, 115 P.3d 1052(2005).
16 State v. Terrovona, 105 Wash. 2d 632, 643, 716 P.2d 295 (1986).
17 State v. Fricks, 91 Wash. 2d 391, 398, 588 P.2d 1328 (1979).
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No. 76716-0-I / 10
sticky note. Thus, whether Hansen had the note waiting for Mellis or whether
she retrieved it after he arrived at the bank does not require suppression of the
note. If the fact that Mellis read the note was stricken from the affidavit, the
affidavit would still contain sufficient evidence to allow the magistrate to find
probable cause for a warrant to seize it.
Similarly, before Hansen showed Mellis the bracelet, she told Mellis that
she had found a bracelet among Pietz's belongings. This is sufficient to establish
probable cause for a warrant to seize the bracelet. Whether Hansen showed
Mellis the bracelet without prompting or whether Mellis asked Hansen to show it
to him does not require suppression of the bracelet. If the fact that Mellis saw the
bracelet was stricken from the affidavit, the affidavit would still contain sufficient
evidence to allow the magistrate to find probable cause for a warrant to seize it.
Pietz does not show that the State presented insufficient evidence to
satisfy the first prong of the independent source doctrine.
B. Mellis's Decision To Seek a Warrant Regardless of Any Alleged Illegal Search
Pietz next asserts that because the trial court did not explicitly find that
Mellis would have sought a search warrant regardless of his alleged unlawful
search of the sticky note and the bracelet, the State did not meet its burden to
show application of the independent source doctrine. We agree.
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No. 76716-0 -I/ 11
Our Supreme Court has stated that Murray "'is [the] controlling authority'
defining the contours of the independent source exception."18 In Murray, the
United States Supreme Court stated, "[In addition] to the normal burden of
convincing a magistrate that there is probable cause," the independent source
doctrine requires that the State satisfy "the much more onerous burden of
convincing a trial court that no information gained from the illegal [search]
affected either the law enforcement officers' decision to seek a warrant or the
magistrate's decision to grant it."19 The Court remanded because the district
court did not "explicitly find that the agents would have sought a warrant if they
had not earlier entered the warehouse [and thus conducted an unlawful
search]."29 It instructed the appellate court to remand to the district court with
instructions to make a determination about this issue.21
As a preliminary issue, Pietz asserts a single articulation of the motivation
prong of the independent source doctrine, claiming a court must look to what did
happen as opposed to what would have happened. By contrast, he contends
that the inevitable discovery doctrine, which our Supreme Court has held is
incompatible with Washington's constitution,22 involves speculative
18Miles, 159 Wash. App. at 292 (alteration in original) (quoting Gaines, 154
Wash. 2d at 721).
19 Murray, 487 U.S. at 540.
20 Murray, 487 U.S. at 543.
21 Murray, 487 U.S. at 543-44.
22 State v. Winterstein, 167 Wash. 2d 620, 624, 220 P.3d 1226 (2009).
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No. 76716-0 -1/12
determinations about what would have happened. He claims that for the State to
prevail, the State must establish that Mellis's "decision to seek the warrant [was]
not motivated by the previous unlawful search." He maintains that in this court's
order dismissing his PRP, it erroneously used the standard applicable to the
inevitable discovery doctrine because it examined whether "Mellis would have
sought the warrant even without the information from the allegedly unlawful
search."23 He asserts this standard is incompatible with this court's holding in
State v. Miles.24 There, this court remanded for the trial court to determine
whether the motivation prong of the independent source doctrine was satisfied.25
But Miles explained that "Murray uses two different formulations of the motivation
prong: (1) whether 'the agents' decision to seek the warrant was prompted by
what they had seen during the initial entry,' and (2) whether 'the agents would
have sought a warrant if they had not earlier entered the warehouse.'"26 While
Pietz advocates for one articulation of the standard, Miles allows for either. This
court did not incorrectly articulate the standard in its order dismissing Pietz's
PRP.
Pietz also asserts that this court cannot make the factual finding the
motivation prong requires. Similar to Murray, here, the trial court did not make a
23 Miles, 159 Wash. App. at 284.
24 159 Wash. App. 282, 244 P.3d 1030(2011).
26 Miles, 159 Wash. App. at 298.
26 Miles, 159 Wash. App. at 296 (quoting Murray, 487 U.S. at 542-43).
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No. 76716-0 -I/ 13
finding about whether Mellis would have sought a warrant if he had not seen the
sticky note or the bracelet. The State contends that because Mellis was in the
process of seeking a warrant before he saw the bracelet, "it is inconceivable that
he would not have sought a warrant after learning that a [sticky] note confirming
an appraisal of a bracelet was in the boxes when the dead victim's bracelet was
still missing and such evidence could establish that Pietz had that bracelet after
Nicole's murder." But "[t]he function of ultimate fact finding is exclusively vested
in the trial court."27 And Murray holds that application of the independent source
exception to the exclusionary rule requires that a trial court make an explicit
finding that the officer would have sought a warrant regardless of the unlawful
search or seizure. We remand with instruction to the trial court to consider the
limited issue of whether Mellis would have sought a warrant even if he had not
seen the sticky note or the bracelet.
Ineffective Assistance of Appellate Counsel
Last, Pietz asserts that his appellate counsel provided ineffective
assistance because he did not raise suppression of the sticky note and bracelet
on appeal.
The Sixth Amendment to the United States Constitution and article I,
section 22 of the Washington Constitution guarantee the right to effective
27 Edwards v. Morrison-Knudsen Co., 61 Wash. 2d 593, 598, 379 P.2d 735
(1963).
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No. 76716-0 -I/ 14
assistance of counsel to help ensure a fair tria1.28 This includes the right to
effective assistance of counsel on a defendant's first appeal of right.29 "In order
to prevail on an appellate ineffective assistance of counsel claim, petitioners
must show that the legal issue which appellate counsel failed to raise had merit
and that they were actually prejudiced by the failure to raise or adequately raise
the issue."39 If a defendant submitting a PRP meets this burden, then he has
necessarily met his burden to show a constitutional error that caused actual
prejudice.31 Counsel's performance is not deficient for failing to object to
admissible evidence.32 Because the trial court must make a factual finding on
remand related to the admissibility of the sticky note and bracelet, we cannot
resolve Pietz's ineffective assistance claim in this PRP. But if the trial court
decides Mellis would have sought a warrant regardless of any allegedly unlawful
search, making the independent source exception to the exclusionary rule
applicable, Pietz's appellate counsel was not ineffective for not challenging the
admission of admissible evidence.
28 See State v. Grier, 171 Wash. 2d 17, 32, 246 P.3d 1260 (2011); see also
State v. Coristine, 177 Wash. 2d 370, 375, 300 P.3d 400 (2013).
29 In re Pers. Restraint of Dalluge, 152 Wash. 2d 772, 787, 100 P.3d 279
(2004).
30 In re Pers. Restraint of Maxfield, 133 Wash. 2d 332, 344, 945 P.2d 196
(1997).
31 In re Pers. Restraint of Crace, 174 Wash. 2d 835, 846-47, 280 P.3d 1102
(2012).
32 Grier, 171 Wash. 2d at 32.
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No. 76716-0-I / 15
CONCLUSION
We remand this case to the trial court for a reference hearing to resolve
the limited issue of whether Mellis would have sought a search warrant
regardless of his alleged unlawful search of the sticky note and bracelet.
WE CONCUR:
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