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State v. McKee

Court of Appeals of Washington, Division 1

March 26, 2018

STATE OF WASHINGTON, Respondent,
v.
MARC DANIEL MCKEE, Appellant.

          SCHINDLER, J.

         An individual has a constitutional right of privacy to the contents of a cell phone. The Fourth Amendment to the United States Constitution protects privacy interests against an unreasonable search and seizure by requiring that a search warrant describe with particularity "the place to be searched" and the "things to be seized." Marc Daniel McKee contends the warrant to search his cell phone violated the particularity requirement. The warrant contained broad descriptions of cell phone data the police were allowed to search and seize, including "[i]mages, video, documents, text messages, contacts, audio recordings, call logs, calendars, notes, [and] tasks"; and authorized a "physical dump" of "the memory of the phone for examination." Because the warrant violated the particularity requirement of the Fourth Amendment, the search was unconstitutional. We reverse and remand to dismiss the convictions for four counts of possession of depictions of a minor engaged in sexually explicit conduct.

         Criminal Investigation

         In 2012, A.Z. lived with her older brother Robert Gora and her mother Brenda Brickley in Anacortes. Brickley was addicted to methamphetamine. Gora and 16-year-old A.Z. were addicted to heroin and methamphetamine. A.Z. was using heroin and methamphetamine on a daily basis during 2012.

         In January 2012, Brickley introduced A.Z. to 40-year-old Marc Daniel McKee during a "drug deal" for methamphetamine. McKee started spending a lot of time with Brickley, Gora, and A.Z. and supplied them with methamphetamine. They would often "get high" together. At the end of June, McKee left to go to Alaska for work.

         When McKee returned two months later, he immediately contacted A.Z. McKee told A.Z. he had heroin and methamphetamine. McKee and A.Z. spent three days together at a Burlington motel using the drugs and engaging in consensual sex.

         A.Z. and McKee spent three days together again in early September. They used heroin and methamphetamine. McKee and A.Z. used McKee's cell phone to take photographs and record three video clips of themselves engaging in sex.

         In October 2012, 15-year-old J.P. called A.Z. to get drugs. J.P. and her friend M.G. had run out of drugs and were going through withdrawal. A.Z. suggested J.P. contact McKee. J.P. sent McKee a text message. J.P. said she did not have any money. J.P. told McKee she was 16-years-old and would have sex with McKee in exchange for heroin. McKee went to the address J.P. gave him to deliver the heroin. J.P. and 16-year-old M.G. went into the bathroom to use the heroin and get high. After M.G. left, McKee and J.P. engaged in sex.

         Brickley suspected A.Z. was having sex with McKee and confronted her. A.Z. denied having sex with McKee. On October 28, A.Z. and Brickley argued. A.Z. sent McKee a text message asking him to pick her up in five minutes. A.Z. said she "wanted to get high" and "wanted to shoot up ... so please have drugs ready." A.Z. told Brickley she was going to a neighbor's house across the street "to get away and cool off." McKee picked up A.Z. and they drove to a house in Mount Vernon where he was staying.

         Gora's girlfriend told Brickley she saw McKee pick up A.Z. in a truck. Brickley was furious. Brickley, longtime father figure Christopher Seifert, and Gora drove to the house in Mount Vernon. When McKee opened the front door, Seifert and Gora beat McKee and took his cell phone. They retrieved A.Z. and left.

         Gora accessed McKee's cell phone and found the video clips of A.Z. and McKee having sex and the nude photographs of A.Z. Gora gave Brickley the cell phone.

         After Brickley looked at the video clips and photographs on the cell phone, she contacted the Mount Vernon Police Department. On October 30, Brickley met with Detective Dave Shackleton. Brickley described the video clips and photographs she saw on the cell phone. Brickley left the cell phone with Detective Shackleton. Brickley later contacted Detective Shackleton to report that J.P. told her that McKee gave J.P. drugs in exchange for sex. Brickley obtained a restraining order prohibiting McKee from contacting A.Z.

         Application for a Search Warrant

         On October 31, Detective Jerrad Ely submitted an application and affidavit (Affidavit) in support of probable cause to obtain a warrant to search McKee's cell phone to investigate the crimes of "Sexual Exploitation of a Minor RCW 9.68A.040" and "Dealing in depictions of minor engaged in sexually explicit conduct RCW 9.68A.050." The Affidavit states, in pertinent part:

On 10/29/12 Officer Reed investigated a pornography call that was reported by Brenda Brickley to the Mount Vernon Police Department. BRICKLEY told REED that her 16 year old daughter A.M.Z. DOB 11/15/95 has been hanging out with a 41 year old man named Marc McKee at 1127 S 15th Street in Mount Vernon and she had not returned home. BRICKLEY said that she and her ex-husband, Christopher Seifert went to that residence on 10/28/12 to take A.M.Z. home. BRICKLEY said that they knocked on the door and pounded on the windows before MCKEE came to the door. BRICKLEY said that she was so upset that she "beat him up" and during this physical altercation MCKEE's cell phone fell from his pocket. BRICKLEY said that she then took that cell phone ... while SEIFERT physically removed A.M.Z. from MCKEE's bedroom. BRICKLEY said that they then left with the phone.
BRICKLEY said that on the morning of 10/29/12 she looked at the phone taken from MCKEE and found many pictures of her daughter completely naked in what she believes is MCKEE's room at 1127 S 15th Street. BRICKLEY described one picture where A.M.Z. is without clothing and tied up on the bed. She said that she found other pictures of young looking girls in various stages of undress. BRICKLEY said that she also viewed videos on the phone and believed some of them depicted MCKEE having sex with A.M.Z. ...
. . . BRICKLEY further described a phone call she got from J.N.P. who said she had sex and oral sex with MCKEE at Steven EVERSALL's residence in Anacortes on the corner of 6th and Oak in exchange for heroin. She also said that she believed that 15 year old J.W. was possibly involved with him. BRICKLEY provided Detective Shackleton with MCKEE's cell phone described as a[n] LG with model number VX9100.
I am requesting to search:
The cell phone described as a[n] LG cell phone with model VX9100 currently being held at the Mount Vernon Police Department. For:
Images, video, documents, text messages, contacts, audio recordings, call logs, calendars, notes, tasks, data/[I]nternet usage, any and all identifying data, and any other electronic data from the cell phone showing evidence of the above listed crimes. If compatible, the phone content will be copied from the phone using forensic hardware and software that retrieves basic identifier information about the phone and can forensically download images, video, text messages, contacts, audio recordings, and other additional data for the investigator to examine depending on support for that particular phone. It is also possible to conduct a physical dump on some supported phones obtaining all of the memory of the phone for examination. If the cell phone is not supported by any forensic tools, the phone will be examined manually.[1]

         Search Warrant

         On October 31, the court issued a search warrant. Based on the Affidavit of Detective Ely, the district court judge found probable cause to believe McKee committed or was committing the crimes of "Sexual Exploitation of a Minor RCW 9.68A.040" and "Dealing in depictions of minor engaged in sexually explicit conduct RCW 9.68A.050." The search warrant states:

WHEREAS, Detective J. Ely has this day signed an affidavit on oath before the undersigned, David A. Svaren Judge, Skagit County District Court, that he believes that a crime has been or is being committed:
To wit (Type of Crime)
Sexual Exploitation of a Minor RCW 9.68A.040, Dealing in depictions of minor engaged in sexually explicit conduct RCW 9.68A.050.

         The warrant allows the police to obtain evidence from "[t]he cell phone described as a[n] LG cell phone with model VX9100 currently being held at the Mount Vernon Police Department" for the following "Items Wanted":

Images, video, documents, text messages, contacts, audio recordings, call logs, calendars, notes, tasks, data/[I]nternet usage, any and all identifying data, and any other electronic data from the cell phone showing evidence of the above listed crimes.[2]

         The search warrant authorizes the police to conduct a "physical dump" of the memory of the cell phone for examination.

If compatible, the phone content will be copied from the phone using forensic hardware and software that retrieves basic identifier information about the phone and can forensically download images, video, text messages, contacts, audio recordings, and other additional data for the Investigator to examine depending on support for that particular phone. It is also possible to conduct a physical dump on some supported phones obtaining all of the memory of the phone for examination. If the cell phone is not supported by any forensic tools, the phone will be examined manually.

         On November 7, 2012, the court filed a "Receipt of Execution of Search Warrant." The Receipt of Execution of Search Warrant states the police conducted a "Cellebrite Dump" of the cell phone on November 6. Cellebrite software obtains all information saved on the cell phone as well as deleted ...


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