Personal Restraint Petition Of Svein Arve Vik

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Personal Restraint ) No. 75984-1-I
of
) DIVISION ONE
SVEINARVEVIK, )
) UNPUBLISHED OPINION
Petitioner. )
___________________________________ ) FILED: August 5, 2019
HAZELRIGG-HERNANDEZ, J. — In a personal restraint petition, Svein A. Vik
argues that his counsel was ineffective when he failed to challenge the warrant
used to seize stolen property from his home. Search warrants must describe the
items to be seized with reasonable particularity. Vik argues that the victim’s
assistance in executing the search warrant demonstrated that it was insufficiently
particular. Because common law tradition permits third parties to aid in the
execution of a search warrant, Vik fails to demonstrate that his counsel was
ineffective for not challenging the warrant. Denied.
FACTS
The facts of this case are described in detail in Svein Vik’s direct appeal,
State v. Vik, No. 74803-3-I. Here we address only the facts relevant to the issue
argued in Vik’s personal restraint petition. Vik and several other men were
contacted during a suspected burglary of Sandra Davis’s Lynnwood home. Vik
voluntarily accompanied Detective Collin Ainsworth to the police station for an
No. 75984-1/2
interview. During Vik’s voluntary interview, he offered to let the detective search
his house. At the house, Detective Ainsworth saw a rolled up rug and took a picture
of it. Davis had reported that some rugs were stolen. After Davis confirmed that
the photographed rug was hers, Detective Ainsworth applied for and received a
search warrant. Detective Ainsworth searched Vik’s home pursuant to the warrant.
Sandra Davis was called to Vik’s house to help identify items stolen from her
property. Based in part on items recovered from his home, Vik was convicted of
Second Degree Possession of Stolen Property and Residential Burglary.
Vik filed a CR 7.8 motion during the pendency of his direct appeal. The trial
court transferred that motion to this court for review as a personal restraint petition.
DISCUSSION
In a personal restraint petition, the petitioner is entitled to full collateral
review of a conviction or sentence if the petitioner shows actual prejudice from a
constitutional error. In re Pers. Restraint of Light-Roth, 191 Wash. 2d 328, 333, 422
P.3d 444 (2018) (quoting In re Pers. Restraint of Gronguist, 138 Wash. 2d 388, 396,
978 P.2d 1083 (1999)). To prevail on an alleged constitutional violation, the
petitioner must establish by a preponderance of the evidence that the constitutional
error substantially prejudiced the petitioner. In re Pers. Restraint of Coggin, 182
Wash. 2d 115, 119, 340 P.3d 810 (2014) (citing In re Pers. Restraint of St. Pierre, 118
Wash. 2d 321, 328, 823 P.2d 492 (1992)). Vik argues that he was denied effective
assistance of counsel. Both the Sixth Amendment and article I, section 22
guarantee the right to the effective assistance of counsel in criminal proceedings.
2
No. 75984-1/3
In re Brett, 142 Wash. 2d 868, 873, 16 P.3d 601 (2001) (citing Strickland v. Wash.,
466 U.S. 668, 684-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
I. Vik fails to establish ineffective assistance of counsel because he fails to
demonstrate deficient performance by his attorney.
Vik argues that his counsel was ineffective because he failed to challenge
the search of Vik’s house authorized by the warrant. In order to reverse for
ineffective assistance of counsel, we apply the two pronged Strickland test. State
v. McFarland, 127 Wash. 2d 322, 334-35, 889 P.2d 1251 (1995); see Strickland 466
U.S. at 687. The defendant must show that the representation was deficient, and
that the deficient representation resulted in prejudice. In re Pers. Restraint of
Crace, 174 Wash. 2d 835, 840, 280 P.3d 1102 (2012) (quoting Strickland, 466 U.S.
668). In the ineffective assistance of counsel context, prejudice is a reasonable
probability that the results of the proceeding would have been different, i.e., a
probability sufficient to undermine confidence in the outcome. Crace, 174 Wash. 2d
at 840 (quoting Strickland, 466 U.S. at 694). Where an ineffective assistance claim
rests on the failure to competently litigate a motion to suppress evidence from an
unconstitutional search, the defendant must show that the search was
unconstitutional. Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 91
L. Ed. 2d 305 (1986). Because Vik cannot show that the warrant was insufficiently
particular or that the victim’s assistance in the execution of the warrant violated his
constitutional rights, his argument for suppression, claim of ineffective assistance,
and personal restraint petition all fail.
3
No. 75984-1/4
A. Vik has not shown that the warrant was not reasonably particular.
The Fourth Amendment requires warrants to particularly describe the things
to be seized. State v. Perrone, 119 Wash. 2d 538, 545, 834 P.2d 611(1992) (quoting
U.S. CONST. amend. IV). The purpose of the particularity clause is to prevent
general searches, prevent the mistaken seizure of objects not authorized by the
warrant, and to prevent the issuance of warrants on loose, vague, or doubtful
bases of fact. j.ç~ Reasonable particularity is to be evaluated in the light of
practicality, necessity, and common sense. ki. at 546. The degree of particularity
required will depend on the nature of the materials sought and the circumstances
of each case. j4~ at 547. A description is valid if it is as specific as the
circumstances and the nature of the activity under investigation permits. ki.
Whether a search warrant is sufficiently particular is reviewed de novo. jç~ at 549.
When allegations are based on matters outside the record, petitioners must
demonstrate that they have competent, admissible evidence to establish the facts
that entitle them to relief. In re Pers. Restraint of Rice, 118 Wash. 2d 876, 886, 828
P.2d 1086, cert. denied, 113 S. Ct. 421 (1992). Vik does not supply the court with
the item list that was attached to and incorporated by the search warrant. He
nevertheless challenges the particularity of the warrant on two bases. First, he
argues that the warrant was insufficiently particular because Officer Ainsworth
called the victim to help him identify which items were stolen from her home.
Second, he argues that because police seized items unrelated to the Davis
burglary, that the warrant must be a general, exploratory warrant. Neither claim
succeeds.
4
No. 75984-1/5
Descriptions in an application for search warrant that ultimately require a
victim of theft to identify the stolen items are not necessarily insufficiently particular.
The only item specifically described in the search warrant, rather than the
incorporated list, is a ‘primarily blue Persian style area rug with flowerish design
approximately 10’ x 12’.” That description allowed the officers to reasonably
distinguish the rug to be seized from most other rugs and any objects that are not
rugs in Vik’s house. If the officers had encountered a second large, blue Persian
rug with flowerish designs and called Davis to distinguish which of the two rugs
were hers, it would not have negated the particularity of the warrant.1
Vik claims that, because police seized items from his home that did not have
anything to do with the Davis burglary, the police must have executed an
exploratory search. But the record indicates that other property recovered from
his home was stolen during other burglaries. Vik has provided no information to
determine whether or not additional warrants supported seizure of those items.
Here, the warrant directed officers to seize items from an incorporated list of stolen
property. Even if the officers recovered property that fell outside the scope of the
warrant, the proper remedy would be to exclude the unconstitutionally seized
property, not to declare the entire warrant invalid. Given these circumstances, the
seizure of additional property does not support an inference that the warrant was
insufficiently particular.
1 In other circumstances, such as a search warrant executed on a store specializing in
Persian rugs, that description could be insufficient.
5
No. 75984-1/6
B. The presence of a third party assisting in the execution of a search
warrant does not violate article I, section 7.
Next, Vik argues that because RCW 10.79.020 requires warrants be
directed to law enforcement, we should hold that third party assistance in the
execution of a valid warrant violates state law and article I, section 7. Extensive
common law tradition and the explicit approval of the United States Supreme Court
permits third parties, including victims of theft, to assist the police in identifying
stolen property under the Fourth Amendment. Wilson v. Layne, 526 U.S. 603, 611-
12, 119 S. Ct. 1692, 143 L. Ed. 2d 818 (1999). Vik argues that article I, section 7
should provide additional protection from a third party assisting a warrant-
authorized search. In State v. Gunwall, our Supreme Court recognized that article
I, section 7 of the Washington State Constitution provides greater protection from
government intrusion than the Fourth Amendment to the United States Constitution
in some circumstances. 106 Wash. 2d 54, 63-64, 720 P.2d 808 (1986). While
Gunwall originally set out six criteria necessary to argue for a separate
interpretation on independent state constitutional grounds, that analysis is no
longer necessary to justify an independent state law analysis of article I, section 7
in new contexts. Statev. Mayfield, 192 Wash. 2d 871, 878, 434 P.3d 58(2019). Vik’s
article I, section 7 argument is grounded in his statutory interpretation of RCW
10.79.020.
We interpret statutes de novo, striving to ascertain and carry out the
legislature’s intent. State v. Yancey, 193 Wash. 2d 26, 30, 434 P.3d 518 (2019). We
start with the statute’s plain meaning, using the ordinary meaning of the language,
6
No. 75984-1/7
the context in which the statutory provision is found, related provisions, and the
statutory scheme as a whole. We start with the statute’s plain meaning, using the
ordinary meaning of the language, the context in which the statutory provision is
found, related provisions, and the statutory scheme as a whole. k~. at 30. We must
not add words where the legislature has chosen not to include them. Id.
Here, the plain language of RCW 10.79.020 only requires that warrants be
directed to law enforcement. It contains no references to third parties. While the
statute makes it clear that a warrant can only be issued to law enforcement, the
statute does not bar any third party from assisting in the execution of that warrant,
whether the party is emergency personnel, a locksmith, or a victim of theft, as is
the case here. Interpreting the statute to bar that participation would require
adding words to the statute.
The language of article I, section 7, gives us no other reason to deviate from
the common law in this case. Article I, section 7 requires authority of law before a
person’s private affairs may be disturbed. State v. Miles, 160 Wash. 2d 236, 243, 156
P.3d 864 (2007). That authority of law is generally satisfied by a valid warrant. ki.
at 244. Where, as here, a valid warrant authorizes the search, a third party
assisting in the execution of the warrant does not offend the protections of article
I, section 7.
Because Vik is unable to establish that the search warrant was insufficiently
particular, he is accordingly unable to demonstrate that counsel’s failure to
challenge the search warrant on that basis supports a finding of deficiency. As
7
No. 75984-1/8
such, Vik does not satisfy the first prong of the Strickland test and his claim of
ineffective assistance of counsel fails.
Denied.
‘-III —
,11
~ài1
WE CONCUR:
Pm”
~L~d
F
I