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Washington v. Kern

filed: April 15, 1996.

STATE OF WASHINGTON, RESPONDENT,
v.
MICHAEL KERN, APPELLANT.



Superior Court County: Snohomish. Superior Court Cause No: 93-1-00290-9. Date filed in Superior Court: November 30, 1993 and February 23, 1994. Superior Court Judge Signing: Paul Hansen and Larry McKeeman.

Written by: Ellington, J., Concurred by: Kennedy, A.c.j., Coleman, J.

Author: Ellington

ELLINGTON, J. -- Michael Kern appeals his conviction for first degree theft, arguing that the trial court erred by denying his motion to suppress his bank records. Kern contends suppression is required because of defects in execution of the search warrant used to obtain the records. Specifically, he alleges that the search was not timely completed, that he did not receive notice of the search, and that the searching officer delegated the search to non-officers, modified the terms of the warrant, and failed to file a proper inventory and warrant return form. We hold

that the search warrant for Kern's bank records was executed when served. We further hold that Kern was not entitled to notice of the search, that the delegation was not improper, and that any procedural error was ministerial only and did not prejudice Kern. We therefore affirm.

I. FACTS

Michael Kern was the district manager of the Seattle office of Thorn Automated Systems (Thorn), a business providing security services for commercial entities. As district manager, Kern had authority to employ subcontractors, and "employed" Applied Security Concepts (ASC) as a subcontractor on several jobs. Unbeknownst to Thorn, Kern was the owner of ASC. In fact, Thorn received neither equipment nor services from ASC.

Thorn received bills from ASC amounting to thousands of dollars, supposedly for equipment installed and services rendered. On behalf of Thorn, Kern approved the bills for payment. Thorn's checks were endorsed by ASC and were deposited in the Marysville Branch of Sea-First Bank. The account had been opened by Kern as a "sole ownership" account, and Kern was the only authorized signatory.

Deputy Sheriff Phil Sisk of the Snohomish County Sheriff's Office (SCSO) commenced an investigation against Kern and obtained a search warrant for the bank's records on the ASC account for the relevant time period. In accordance with CrRLJ 2.3(c), the warrant commanded that the "premises" be searched within 10 days.

Sisk served the search warrant on the bank on the same day it was issued. Sisk included with the warrant an inventory and return form, on which Sisk had typed the following: "Documents to be provided as soon as possible, within thirty (30) days, to SCSO." On the same day, despite the fact that no records had yet been seized, Sisk filed with the court an "Inventory and Return of Search Warrant," describing the items purportedly seized.

Sisk was not present during the search. The bank mailed

the records to Sisk, who received them 17 days after the date of issuance of the warrant. Kern was not given notice of the search until charges were filed some nine months later.

At trial, Kern moved to suppress the bank records on the basis of several alleged procedural defects in the execution of the search warrant. His motion was denied, the bank records were admitted as ...


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