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State v. Martinez

Court of Appeals of Washington, Division 1

January 16, 2018


          Leach, J.

         Carlos Martinez appeals his conviction for possession of depictions of a minor engaged in sexually explicit conduct. Primarily, he challenges the Washington State Patrol's (WSP) warrantless search of a mirror image hard drive. But Texas police lawfully seized the hard drive and were not acting as agents of WSP at the time. The silver platter doctrine allowed the WSP to later examine the hard drive without a warrant.

         Martinez also challenges the trial court's admission of his former spouse's testimony about confidential marital communications. Because Martinez acted as a guardian to the victim, the spousal privilege does not apply here. Martinez raises additional arguments related to a warrant and the prosecutor's conduct at trial, but those challenges also fail. We affirm Martinez's conviction.


         Carlos Martinez began working at the Monroe Police Department in 1989. He worked in several capacities, including as a Drug Abuse Resistance Education (D.A.R.E.) program instructor.[1] While working as a D.A.R.E. instructor, Martinez met A.K., who was in fifth grade at the time.

         Beginning in 2001 or 2002, when A.K. was 13 or 14 years old, she began baby-sitting Martinez's two young children.[2] A.K. also came to the Martinezes' house when she was not baby-sitting. She would sometimes show up unannounced. She would help Martinez with chores and do her schoolwork at the house.

         A.K. testified that Martinez began touching her in a sexual manner when she was 14. He would come up behind A.K., grab her hips, and push his hips against hers. Once, when she stayed overnight after baby-sitting, Martinez lay down next to her in the bed and touch her breasts and buttocks.

         Sometime in late 2003 or early 2004, A.K. told Martinez and Martinez's then-wife, Julie West, [3] that she had accidentally cut herself by running into a knife on the kitchen counter while baby-sitting for another family. West asked

          A.K. to show her the wound. A.K. refused.

         Around April 2004, Martinez set up a video camera in a bathroom. A.K. testified that while West was gone, after she helped Martinez with chores, he would tell her to take a shower. Over about a month, Martinez made several recordings of A.K. getting in and out of the shower. Martinez testified that he did this out of concern for A.K.'s mental health and that he hoped to find out if she was cutting herself.

         In May 2004, West went on vacation. While West was gone, A.K. spent time at Martinez's house, helping with chores, doing homework, and watching movies. During this time, Martinez told A.K. to take a shower a number of times after she finished chores. A.K. described one occasion when she and Martinez watched a movie, sitting together in a big chair. A.K. testified that Martinez touched her hair and licked her fingers. A.K. testified that Martinez lay on top of her on the floor, "dry hump[ed]" her, and put her hand on his erection.

         When West returned from vacation, she discovered a love note from A.K. to Martinez. She also discovered a video recording that Martinez had made of A.K. getting out of the shower and stored on the family computer. West confronted Martinez about the recording. He said he wanted to see if A.K. had cut herself on the kitchen knife as she had claimed. West claimed that when she asked Martinez why he still had the recording on the computer, he responded that it was "nice to look at."

         Not long after this, A.K. and her family moved from Monroe to Eastern Washington. Martinez and A.K. kept in touch. Martinez claims that in February 2007 they began a consensual sexual relationship when A.K. was 18 years old. In fall 2009, the Army recalled Martinez to active duty and stationed him in San Antonio, Texas. A.K. moved to Texas to be with him. They lived together for a short time.

         After their relationship deteriorated in October or November 2011, Martinez gave A.K. the video recordings that he made of her in his bathroom in 2004. A.K. testified that Martinez told her he wanted to watch the tapes one last time and masturbate to them. She claimed he asked her to touch him as well.

         A short time later, A.K. contacted the Texas police to turn over the tapes. She also told the Texas police that she began an intimate relationship with Martinez some time before she was 16. She later contacted WSP.

         The Texas police obtained a warrant to search Martinez's home and seize his laptop computer and digital media storage devices. Then, a grand jury was convened in Texas to consider a possession of child pornography charge. But the grand jury refused to indict, returning a "no bill." The case was dismissed.

         Texas police made a mirror image of Martinez's computer hard drive and, at WSP's request, sent it to WSP. Without obtaining a separate warrant, WSP searched this mirror image hard drive. Texas police also sent WSP two actual laptop computers and hard drives seized from Martinez. After obtaining a warrant, WSP searched those items.

         The State initially charged Martinez with two counts of voyeurism, two counts of child molestation, one count of rape of a child in the third degree, and one count of possession of depictions of a minor engaged in sexually explicit conduct. Later, the State dismissed the molestation and rape charges. It tried Martinez on only one count of voyeurism and one count of possession of depictions of a minor engaged in sexually explicit conduct.

         The jury found Martinez guilty on both counts. Because the voyeurism charge occurred outside the statute of limitations, the trial court dismissed that count and convicted him on only the possession count.


         Warrantless Search

         Martinez contends that the trial court should have suppressed evidence found on the mirror image hard drive because WSP searched it without a warrant. When an appellate court reviews the trial court's decision on a suppression motion, it determines whether substantial evidence supports any challenged findings of fact and whether the findings of fact support the trial court's conclusions of law.[4] An appellate court treats the trial court's unchallenged findings of fact as true.[5] Martinez challenges only the trial court's conclusions of law, which this court reviews de novo.[6]

         The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." If a government action intrudes upon an individual's "reasonable expectation of privacy, " a search occurs under the Fourth Amendment.[7] The Washington Constitution provides greater protection of a person's privacy rights than does the Fourth Amendment.[8] Article 1, section 7 of the Washington Constitution states, "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." Article 1, section 7 "focuses on those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant."[9]

         Under the silver platter doctrine, however, evidence lawfully obtained under the laws of another jurisdiction is admissible in Washington courts even if the manner the evidence was obtained would violate Washington law.[10] "Evidence is admissible under this doctrine when (1)the foreign jurisdiction lawfully obtained evidence and (2) the forum state's officers did not act as agents or cooperate or assist the foreign jurisdiction."[11] Martinez does not dispute that Texas lawfully obtained the hard drive. And he does not challenge the trial court's findings that "WSP had no involvement in obtaining or serving the Texas warrant" and "Texas police did not act as agents of WSP when they obtained or served the warrant." Thus, under the silver platter doctrine, the evidence is admissible.

         Martinez contends that the silver platter doctrine does not apply here because the Texas officers did not conduct any search that would be unlawful in Washington.[12] But Martinez mistakenly asserts that this doctrine requires that the search be unlawful in Washington. The doctrine requires that the State show only two things: (1) the search was lawful in Texas and (2) the Washington officers did not act as agents for Texas or cooperate or assist Texas in any way. Because the State proved this, the doctrine applies.


         Next, Martinez contends that the warrant issued in Washington allowing the WSP to search his laptop computers and hard drives was overbroad.[13] The Fourth Amendment provides that "no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The search warrant particularity requirement helps prevent general searches, the seizure of objects on the mistaken assumption that they fall within the issuing magistrate's authorization, and the issuance of warrants on loose, vague, or doubtful bases of fact.[14] When a search warrant authorizes a search for materials protected by the First Amendment, a greater degree of particularity is required, and we employ a more stringent test.[15] While the First Amendment presumptively protects obscene books and films, [16] it does not protect child pornography involving actual minors.[17] We review whether a warrant meets the particularity requirement de novo.[18]

          Martinez claims the warrant is overbroad because its language gives too much discretion to the officer executing the warrant. The warrant authorizes seizure of

[a]ny photographs, pictures, albums of photographs, books, newspapers, magazines, and other writings on the subject of sexual activities involving children, pictures and/or drawings depicting children under the age of eighteen years who may be victims of the aforementioned offenses, and photographs and/or pictures depicting minors under the age of eighteen years engaged in sexually explicit conduct as defined in RCW 9.68A.011(3).

Martinez relies on State v. Perrone[19] where the Supreme Court held that the term "child pornography" is insufficiently particular because, like the term "obscenity, " it leaves too much discretion to the officer in deciding what to seize under the warrant. The court noted that using the language of RCW 9.68A.011 could have easily made the warrant more particular.[20] The warrant here does not use the overbroad term "child pornography." Instead, as suggested by the Perrone court, it uses the language of the statute: "sexually explicit conduct." Martinez points out that in State v. Besola[21] our Supreme Court rejected an argument that a citation to the child pornography statute cured overbreadth. But the warrant here does more than simply cite to the statute, it uses the language "sexually explicit conduct as defined in RCW9.68A.011(3)."[22] This language provides law enforcement with an objective standard to determine what should be seized.

         Martinez also contends that the warrant was overbroad because it allowed seizure of lawful items. Specifically, the warrant authorized seizure of materials "on the subject of sexual activity involving children." The question of whether material is inherently illegal can be relevant to the degree of particularity required.[23] But lawful materials also can be relevant to a crime. The fact that the warrant authorizes seizure of lawful materials does not automatically make the warrant overbroad. Here, possession of materials about sexuality involving children is relevant to the charged offense. The warrant is not overbroad for authorizing seizure of these relevant materials.

         Last, Martinez asserts that the warrant is overbroad because it does not clearly identify the victim of the charged offenses. But, as the State points out, the affidavit, which was attached to the warrant and incorporated by reference, indicated that A.K. was the victim. Thus, the warrant documents contained enough information for law enforcement to decide what to seize.

         The warrant was sufficiently particular.

          Warrant Validity

         Next, Martinez contends that the trial court erred when it denied his motion to suppress evidence after a Franks[24] hearing. Specifically, he asserts that the warrant is invalid because Sergeant Detective Rodriguez left out material facts in his supporting affidavit.

         "A search warrant may be issued only upon a determination of probable cause."[25] A court may invalidate a warrant and suppressed the fruits of the search if the person making the supporting affidavit recklessly or intentionally omits material information.[26] An omission does not invalidate a search warrant simply because it tends to negate probable cause.[27] Instead, the omitted information must be such that an affidavit including it could not have supported probable cause.[28] A defendant can show recklessness with evidence that "the affiant 'in fact entertained serious doubts as to the truth' of facts or statements in the affidavit."[29] "[S]erious doubts can be shown by (1) actual deliberation on the part of the affiant, or (2) the existence of obvious reasons to doubt the veracity of the informant or the accuracy of his reports."[30] Although an appellate court generally reviews the issuance of a warrant for abuse of discretion and defers to the magistrate's determination, the appellate court reviews a trial court's assessment of probable cause, which is a legal conclusion, de novo.[31] The appellate court treats all unchallenged findings of fact made by a trial court at a suppression hearing as true on appeal.[32]

         Martinez asserts that the warrant is invalid because the supporting affidavit failed to state (1) that a Texas grand jury refused to indict him on charges of possession of child pornography, (2) that A.K. at one time stated that her first alleged sexual contact with Martinez occurred after she had reached the age of consent, and (3) certain statements made to A.K.'s school counselor.

         First, information about the Texas "no bill" is not material. The trial court found, "There are a number of reasons a grand jury could return a 'no bill.' Such proceedings are secret and the Court does not know the underlying reasons for the decision." That a grand jury in Texas, for an unknown reason, chose not to indict Martinez for a Texas crime in Texas is not material to whether probable cause existed to investigate a Washington crime in Washington.

          Second, Martinez does not show that the officer deliberately or recklessly omitted A.K.'s statement that she first had sex with Martinez when she was 17. Sergeant Detective Rodriguez testified that although A.K. initially told a WSP investigator that she did not have intercourse with Martinez until she was 17, she ultimately said that she had sex with him when she was 15. Sergeant Detective Rodriguez did not think her initial statement was important and believed she first had sex with Martinez when she was 15. He explained that victims commonly do not tell the truth immediately, but he believed that her story progressed to the truth. Because Martinez ...

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