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State v. Ollivier

Supreme Court of Washington, En Banc

October 31, 2013

STATE of Washington, Respondent,
Brandon Gene OLLIVIER, Petitioner.

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Nancy P. Collins, Washington Appellate Project, Seattle, WA, for Petitioners.

James Morrissey Whisman, King County Prosecutor's Office, Seattle, WA, for Respondents.


¶ 1 [178 Wn.2d 819] Brandon Ollivier contends that his rights to a speedy trial under CrR 3.3, the Sixth Amendment to the United States Constitution, and article I, section 22 of the Washington State Constitution were violated by delay in bringing him to trial. He also maintains [178 Wn.2d 820] that evidence obtained in a search of his apartment must be suppressed because of misrepresentations and other defects in the affidavit in support of probable cause to issue the warrant, and CrR 2.3(d) was violated because he was not presented with a copy of the search warrant prior to commencement of the search. We conclude that the delay in bringing Ollivier to trial did not violate speedy trial rights when defendant's own counsel requested the continuances causing the delay and no claim of ineffective counsel is made related to those continuances, that probable cause for the search warrant was sufficiently established by qualifying information in the affidavit, and no violation of CrR 2.3(d) occurred because a copy of the search warrant was posted upon seizure of property pursuant to the warrant. We affirm the Court of Appeals' decision upholding Ollivier's conviction for possession of child pornography.


¶ 2 In March 2007, Brandon Ollivier, a registered sex offender, was living with roommates who also were registered sex offenders. When one of the roommates, Eugene Anderson, was arrested for a violation of community custody, he told his Community Corrections Officer (CCO) on March 8, 2007, that Ollivier had shown him child pornography on Ollivier's computer in their apartment. After this information was relayed to King County Sheriff's Office Detective Dena Saario, she took a taped statement from Anderson. Anderson told Saario that Ollivier had shown him a video of a young girl and boy having sexual relations. He also stated that Ollivier had shown him photographs of young girls about nine years old who were dressed but posed provocatively. In addition, Anderson told Saario that Ollivier kept a locked red box that contained pornography, including " Playboy " and " Barely Legal " magazines.

¶ 3 Detective Saario prepared an affidavit to obtain a search warrant for the apartment. Among other things, she [178 Wn.2d 821] incorrectly stated that Anderson informed her that the red box contained photographs of unclothed children in sexually explicit poses. The warrant was issued and on April 5, 2007, it was executed. Ollivier was the only one in the apartment when detectives arrived to search it. During the search, detectives seized two desktop computers, one laptop computer, several compact disks, USB (Uniform Serial Bus) drives, and other storage media. At the conclusion of the search, Detective Saario posted a copy of the warrant on a bookcase in the apartment.

¶ 4 A detective who initially examined the computer images concluded they contained over 14,000 images of child pornography and about 100 video files of child pornography. The vast majority were images of children under 15 years of age who were purposefully posed to expose their genitals and the same children in various sex acts with other children and adults, as well as other sex acts.

¶ 5 On April 13, 2007, Ollivier was arrested and charged with possession of depictions of minors engaged in sexually explicit activity. On April 18, 2007, he was arraigned, with an initial speedy trial expiration date of June 29, 2007. Trial began on March 9, 2009, following 22 continuances. Defense counsel sought most of the continuances to allow time for investigation, to obtain expert review of computer content, to obtain discovery material from the Washington State Department of Corrections and the King County Sheriff's Office, and because of a new investigator on

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the case. Some of the requested continuances mentioned circumstances involving the State and some motions were joined by the State. In addition, shortly after executing the search warrant, Detective Saario was investigated for misconduct and she resigned. A continuance was requested to permit time to obtain information about the investigation into her conduct. Ollivier did not object to the first two of these continuances, but he did object to nearly all of the rest.

¶ 6 King County Detective Barry Walden conducted a forensic search of the computers. It is undisputed child [178 Wn.2d 822] pornography was found. Among other things, Walden found a file folder on a computer registered to " Brandon" (Ollivier's first name) in an unusual location. This computer contained hundreds of images of child pornography and numerous video files, including four video files showing young girls appearing to be ages 5, 7, 7, and 12 in sexually explicit situations. Ollivier stipulated these videos satisfied the definition of child pornography and they were not shown to the jury.

¶ 7 Anderson testified at Ollivier's trial that he stayed with Ollivier one week before he was arrested on the community custody violation. He testified he never used the computer he saw in Ollivier's apartment, that he saw Ollivier use it daily, and that he never saw anyone else use it. He testified that Ollivier showed him child pornography on the computer. Another roommate, Daniel Whitson, testified on Ollivier's behalf that he (Whitson) had never seen Ollivier use the computer to view pornography.

¶ 8 Ollivier was convicted of one count possession of depictions of minors engaged in sexually explicit conduct [1] and was sentenced to a standard range sentence. He appealed. The Court of Appeals affirmed his conviction. State v. Ollivier, 161 Wash.App. 307, 254 P.3d 883 (2011).


Right to a Speedy Trial Under CrR 3.3

¶ 9 Mr. Ollivier maintains that the time-for-trial rule in CrR 3.3 was violated when the trial court granted 22 continuances without, he asserts, making sufficient inquiry into the reasons for the delays. A trial court's decision to grant or deny a motion for a continuance is within the discretion of the trial court and will not be disturbed absent [178 Wn.2d 823] an abuse of discretion. State v. Kenyon, 167 Wash.2d 130, 135, 216 P.3d 1024 (2009).

¶ 10 CrR 3.3 accords with the United States Supreme Court's determination that states can prescribe reasonable periods for commencement of trials consistent with constitutional standards. Barker v. Wingo, 407 U.S. 514, 524, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). While the rule has the purpose of ensuring that a defendant's constitutional right to a speedy trial is effectuated, complying with it does not necessarily mean that no constitutional violation occurs. Kenyon, 167 Wash.2d at 136, 216 P.3d 1024; see Barker, 407 U.S. at 531, 92 S.Ct. 2182 (noting that the balancing test the Court adopted for Sixth Amendment speedy trial purposes requires courts to consider the constitutional right on an ad hoc basis and no set time is constitutionally sufficient for all cases); see State v. Iniguez, 167 Wash.2d 273, 287, 217 P.3d 768 (2009) (" CrR 3.3 provides a framework for the disposition of criminal proceedings without establishing any constitutional standards" ).

¶ 11 Under CrR 3.3(b)(1)(i), an individual held in custody pending trial must be tried within 60 days of arraignment. Certain time periods are excluded from the computation of time, including continuances granted by the trial court. CrR 3.3(e). CrR 3.3(f)(2) explains:

On motion of the court or a party, the court may continue the trial date to a specified date when such continuance is required in the administration of justice and the defendant will not be prejudiced in the presentation of his or her defense. The motion must be made before the time for trial has expired. The court must state on the record or in writing the reasons for the continuance.

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CrR 3.3(f)(2) also provides that a motion for continuance " by or on behalf of any party waives that party's objection to the requested delay."

[178 Wn.2d 824] ¶ 12 Here, Ollivier's own counsel sought the continuances about which he complains, and as the rule expressly provides, any objection is therefore waived.[2]

¶ 13 Ollivier contends, however, that the trial court did not state on the record as to each continuance that it was required in the administration of justice and that the defendant was not prejudiced. For example, Mr. Ollivier says as to the October 19, 2007 ruling that the court indicated the continuance was granted in the administration of justice but failed to comply with the requirement that the delay not prejudice the defendant. However, the order explains the reason for the continuance was that the time was needed for a defense expert to do work before trial. Implicit is the idea that if the expert lacked sufficient time to complete the work, the defense would suffer or be incompletely prepared.

¶ 14 Each order continuing the trial provides a reason for the continuance. In his opening brief in the Court of Appeals, Mr. Ollivier " concede[d] that any of the continuances, standing alone, would not be an abuse of discretion." Appellant's Opening Br. at 20 (emphasis omitted). This is a concession that each request for a continuance was a legitimate request for an extension of time to pursue matters in preparation of his defense and that the trial court properly granted the motions for continuances.

¶ 15 State v. Saunders, 153 Wash.App. 209, 220 P.3d 1238 (2009) and Kenyon, 167 Wash.2d 130, 216 P.3d 1024, on which Ollivier heavily relies, do not compel a different conclusion. Neither involved a similar situation. In Saunders, three continuances at issue were granted that the Court of Appeals found [178 Wn.2d 825] to be unsupported by convincing and valid reasons.[3] Indeed, the continuances were granted to permit ongoing plea negotiations over the defendant's objection and contrary to his desire to go to trial. As the State points out in the present case, whether to plead guilty is an objective of representation controlled by the defendant and not a matter of trial strategy to achieve an objective. See Faretta v. California, 422 U.S. 806, 820, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In contrast, under CrR 3.3, counsel has authority to make binding decisions to seek continuances. Saunders is unlike Mr. Ollivier's case because here the continuances were sought to enable defense investigation and preparation for trial.

¶ 16 In Kenyon, charges were dismissed because the record failed to sufficiently document details showing that no judge was available to try the case, as required by precedent. Kenyon involves continuances for far different reasons than in Ollivier's case.[4]

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¶ 17 In light of CrR 3.3(f)(2) and Mr. Ollivier's concession that individually the continuances were not an abuse of discretion, Mr. Ollivier's rule-based speedy trial right was not violated. We affirm the Court of Appeals on this issue. [178 Wn.2d 826] Because this conclusion does not resolve the constitutional issue, see Iniguez, 167 Wash.2d at 287, 217 P.3d 768, we next turn to the issue whether Mr. Ollivier's constitutional rights to a speedy trial were violated.

Constitutional Rights Right to a Speedy Trial

¶ 18 Ollivier contends that the Court of Appeals erroneously ruled that to show a violation of constitutional speedy trial rights, the defendant must establish actual prejudice to his ability to prepare a defense. He maintains that actual prejudice is not required before a violation of the right to a speedy trial can be found under the Sixth Amendment and article I, section 22 of the Washington State Constitution.

¶ 19 Mr. Olivier's argument highlights the need for us to clarify our analysis in Iniguez concerning when a showing of actual prejudice is required. As we explain below, and contrary to Mr. Ollivier's contention, the defendant ordinarily must establish actual prejudice to the ability to prepare a defense. The exception is when the delay is so lengthy that prejudice to the ability to defend must be conclusively presumed.

¶ 20 Our review is de novo. Iniguez, 167 Wash.2d at 280, 217 P.3d 768. In Iniguez, we determined that the analysis for speedy trial rights under article I, section 22 is substantially the same as the Sixth Amendment analysis and that the state provision does not afford greater rights to the defendant. Iniguez, 167 Wash.2d at 289, 217 P.3d 768.[5] Like the Sixth Amendment speedy trial right, the state right is " ‘ consistent with delays' " and subject to the circumstances. Barker, 407 U.S. at 522, 92 S.Ct. 2182 (quoting Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 49 L.Ed. 950 (1905)). Accordingly, the right is not quantified, does not depend upon whether the defendant [178 Wn.2d 827] makes a specific request, and does not arise pursuant to some inflexible rule. Id. at 522-25, 92 S.Ct. 2182.

¶ 21 We use the balancing test set out in Barker to determine whether a constitutional violation has occurred. Iniguez, 167 Wash.2d at 292, 217 P.3d 768. Because the state right is substantially the same as the federal right and we employ the same balancing test that was adopted by the United States Supreme Court, federal case law concerning the Sixth Amendment right is highly relevant to application of the state constitutional provision in a given situation. Id. at 282, 217 P.3d 768; see also State v. Fortune, 128 Wash.2d 464, 474-75, 909 P.2d 930 (1996) (federal cases can provide guidance in interpreting the state constitution).

¶ 22 The analysis is fact-specific and " ‘ necessarily dependent upon the peculiar circumstances of the case.’ " Iniguez, 167 Wash.2d at 288, 292, 217 P.3d 768 (quoting Barker, 407 U.S. at 530-31, 92 S.Ct. 2182). " [T]he conduct of both the prosecution and the defendant are weighed." Barker, 407 U.S. at 529, 530, 92 S.Ct. 2182. Among the nonexclusive factors to be considered are the " [l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Id. at 530, 92 S.Ct. 2182. None of these factors is sufficient or necessary to a violation. Iniguez, 167 Wash.2d at 283, 217 P.3d 768 (citing Barker, 407 U.S. at 533, 92 S.Ct. 2182). But they assist in determining whether a particular defendant has been denied the right to a speedy trial.

Threshold Showing of Presumptively Prejudicial Delay

¶ 23 Analysis of the length of delay entails a double inquiry. Doggett v. United States, 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). In order to trigger the speedy-trial analysis, " an accused must

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allege that the interval between accusation and trial has crossed the threshold dividing ordinary from ‘ presumptively prejudicial’ delay" because, " by definition," the accused " cannot complain that the government has denied him a ‘ speedy’ trial if it has, in fact, prosecuted his case with customary promptness." Id. at 651-52, 112 S.Ct. 2686 (quoting [178 Wn.2d 828] Barker, 407 U.S. at 530-31, 92 S.Ct. 2182). Then, if this showing is made, a court has to consider, " as one factor among several, the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim." Id. at 652, 112 S.Ct. 2686. Thus, " the length of the delay is both the trigger for analysis and one of the factors to be considered." United States v. Colombo, 852 F.2d 19, 24 (1st Cir.1988).

¶ 24 The more than eight-year delay in Doggett was clearly sufficient to trigger the speedy trial inquiry. The Court also noted in Doggett that while dependent upon the nature of the charges, lower courts had in general found presumptively prejudicial delay at least at the point at which it approaches one year. Doggett, 505 U.S. at 652 n. 1, 112 S.Ct. 2686. In Iniguez, we found presumptive delay triggering the Barker analysis where the more than eight-month delay was substantial and the charges were not complex.

¶ 25 In Mr. Ollivier's case, the State concedes, and we agree, that the delay was presumptively prejudicial as a threshold matter. This does not mean that the right to a speedy trial has been violated, but rather that the 23-month delay is sufficient to trigger the Barker analysis. We next consider the Barker factors, noting that Ollivier has limited his arguments to these factors and recognizing that although we generally examine each in order, they are interrelated.

Length of Delay

¶ 26 The first of the Barker factors is the length of the delay. Ollivier maintains that the length of delay weighs in his favor particularly because, he claims, it was not reasonably necessary. He also points out he spent nearly the full period incarcerated and that his counsel had told the court that she had never had a case with such a long delay.

¶ 27 Initially, in numerous cases courts have not regarded delay as exceptionally long where the delay was as long as or longer than here, particularly when the delay was attributable to the defense. E.g., [178 Wn.2d 829] United States v. Lane, 561 F.2d 1075 (2d Cir.1977) (58 months, much attributable to repeated requests by the defense for continuances); Gattis v. Snyder, 278 F.3d 222 (3d Cir.2002) (28-month delay, all of which was attributable to the defendant); United States v. Hills, 618 F.3d 619, 630-31 (7th Cir.2010) (two-year delay, most of which was attributable to the defense); United States v. Porchay, 651 F.3d 930, 940 (8th Cir. 2011) (assuming 39-month delay was presumptively prejudicial, no Sixth Amendment violation; " much of the delay ... was attributable to [defendant's] own actions" where " [s]he filed well over fifty documents during the nearly three years she was under indictment, including motions which required responses and hearings, notices of interlocutory appeal, and written motions for continuance" ); United States v. King, 483 F.3d 969 (9th Cir.2007) (21-month delay did not violate the Sixth Amendment where defense obtained numerous continuances, case was complex, and defendant obtained new counsel halfway through proceedings); United States v. Larson, 627 F.3d 1198, 1209-10 (10th Cir.2010) (31-month delay did not violate Sixth Amendment in case that was not unduly complicated; second factor weighed heavily against the defendant where every continuance was attributable to the defendant).[6]

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[178 Wn.2d 830] ¶ 28 Contrary to Ollivier's claim, we do not agree that this was a case where the delay was highly disproportionate to the complexity of the issues and counsel's need for preparation. In fact, contrary to Ollivier's claim, one of the judges who granted continuance requests commented on the complexity of the issues. Counsel had to obtain information in connection with use of the computers in the shared residence and as the State suggests, forensic computer analysis can be complex and tedious. We have previously encountered the complexity associated with experts in relation to computers and child pornography. State v. Grenning, 169 Wash.2d 47, 234 P.3d 169 (2010); State v. Boyd, 160 Wash.2d 424, 158 P.3d 54 (2007); State v. Luther, 157 Wash.2d 63, 134 P.3d 205 (2006).

¶ 29 In addition, some of the delay in this case was attributed to discovery from the King County Sheriff's Office in connection with preparation of the defense challenge [178 Wn.2d 831] to the sufficiency of the search warrant. Counsel's pursuit of this discovery was highly appropriate, obviously time-consuming, and required repeated efforts. And although the sheriff's office is a state entity, it was not involved in the trial prosecution. Moreover, as discovery proceeded, voluminous amounts of material were produced, necessitating additional time to investigate and review.

¶ 30 Nearly all of the continuances were sought so that defense counsel could be prepared to defend. This is an extremely important aspect of the balancing and leads us to conclude that the length of delay was reasonably necessary for defense preparation and weighs against the defendant.

Reason for Delay

¶ 31 The second Barker factor is the reason for the delay. Barker, 407 U.S. at 531, 92 S.Ct. 2182; Iniguez, 167 Wash.2d at 294, 217 P.3d 768. When the delay is due to trial preparation needs, as in this case, the first and second factors are closely related.

¶ 32 The reason for the delay is " ‘ the focal inquiry,’ " United States v. Santiago-Becerril, 130 F.3d 11, 22 (1st Cir.1997) (quoting United States v. Sears, Roebuck & Co., 877 F.2d 734, 739 (9th Cir.1989)), " [t]he flag all litigants seek to capture," United States v. Loud Hawk, 474 U.S. 302, 315, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986).

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¶ 33 To begin, the United States Supreme Court reminds us that " pretrial delay is often both inevitable and wholly justifiable." Doggett, 505 U.S. at 656, 112 S.Ct. 2686. Thus, careful assessment of the reasons for the delay is necessary to sort the legitimate or neutral reasons for delay from improper reasons. A court looks to each party's responsibility for the delay, and different weights are assigned to delay, primarily related to blameworthiness and the impact of the delay on defendant's right to a fair trial. Barker, 407 U.S. at 531, 92 S.Ct. 2182. At one end of the spectrum is the situation where the defendant requests or agrees to the delay and is therefore " is deemed to have waived his speedy trial rights as long as the waiver is knowing and voluntary." [178 Wn.2d 832] Iniguez, 167 Wash.2d at 284, 217 P.3d 768 (citing Barker, 407 U.S. at 529, 92 S.Ct. 2182). At the other end of the spectrum, if the government deliberately delays the trial to frustrate the defense, this conduct will be weighted heavily against the State. Barker, 407 U.S. at 531, 92 S.Ct. 2182. Moving more toward the center, if the delay is due to the government's negligence or overcrowded courts, the delay is still weighted against the government, but to a lesser extent. Id. But if the government has a valid reason for the delay, such as a missing witness, then the valid reason may justify a reasonable delay. Id.

¶ 34 We conclude that the second factor weighs more in favor of the State than the defense. Delay caused by defense counsel is chargeable to the defendant. Vermont v. Brillon, 556 U.S. 81, 129 S.Ct. 1283, 1290-91, 173 L.Ed.2d 231 (2009); United States v. Gearhart, 576 F.3d 459, 463 (7th Cir.2009) (" [w]here a defendant seeks and obtains a continuance, the defendant himself is responsible for the resulting delay" ); United States v. Gould, 672 F.3d 930, 937 (10th Cir.2012) (delay of 1388 days; a " ‘ [d]elay [ ] attributable to the defendant do[es] not weigh against the government’ " (quoting United States v. Abdush-Shakur, 465 F.3d 458, 465 (10th Cir.2006))); United States v. Toombs, 574 F.3d 1262, 1274 (10th Cir.2009) ( " [d]elays attributable to the defendant do not weigh in favor of a Sixth Amendment violation" ; " of the 671 days between the filing of [the] indictment and the start of his trial, 423 were attributable to motions filed by [the defendant]" ; " this factor weighs heavily against" the defendant); United States v. Garraud, 434 Fed.Appx. 132, 137 (3d Cir.2011) (unpublished) (no violation of Sixth Amendment from 22-month delay because the defendant " was the cause for any delay in his trial" ; included in this time was an extension of time requested by the defendant for discovery); United States v. Gates, 650 F.Supp.2d 81, 87 (D.Me.2009); United States v. Hendrickson, 460 Fed.Appx. 516, 520 (6th Cir.2012) (unpublished); United States. v. Woodley, 484 Fed.Appx. 310, 319 (11th Cir.2012) (unpublished) (22-month delay [178 Wn.2d 833] attributable to defendant who filed over 40 pretrial motions and the district court conducted multiple hearings and proceedings); Locke v. Dillman, 915 F.Supp.2d 670 (E.D.Pa.2013) (where reason for delay originates with the defendant or his counsel, the delay is not considered for purposes of determining whether constitutional right to ...

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