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State v. McKee

Supreme Court of Washington, En Banc

April 18, 2019

MARC DANIEL McKEE, Respondent.

          STEPHENS, J.

         A jury convicted Marc Daniel McKee of four counts of possessing depictions of minors engaged in sexually explicit conduct (Possessing Depictions). The Court of Appeals reversed those convictions on the ground that police had used an overbroad search warrant to obtain the underlying cell phone photos and videos. Instead of just remanding for suppression of the cell phone evidence, the Court of Appeals ordered all the Possessing Depictions counts dismissed, meaning retrial was barred. Although the Court of Appeals provided no reasoning to justify that remedy, it appears to have thought dismissal was warranted because once the cell phone evidence was suppressed, there would be insufficient evidence to sustain the convictions at a second trial.

         The State petitioned for review of the Court of Appeals' decision to dismiss rather than to suppress. We granted the State's petition for review and now reverse. State v. McKee, 191 Wn. 2d 1012, 426 P.3d 749 (2018). The proper remedy following suppression of the cell phone evidence was to vacate McKee's convictions for Possessing Depictions and to remand to the trial court for further proceedings.


         McKee met A.Z. when he was 41 years old and she was 16 years old. At that time, A.Z. had been using marijuana since she was 12 years old and methamphetamine and heroin for about one year. Over the course of several months in 2012, McKee had repeated sexual encounters with A.Z. and also supplied her and another minor with heroin and methamphetamine. In October 2012, A.Z.'s brother took McKee's cell phone and discovered it had sexually explicit pictures and videos of A.Z. A.Z.'s brother showed these images to A.Z.'s mother, who then turned the phone over to police. Based on their conversations with A.Z.'s mother, officers sought and obtained a warrant to search the cell phone for "[i]mages, video, documents, text messages, contacts, audio recordings, call logs, calendars, notes, tasks, data/internet usage, any and all identifying data, and any other electronic data . . . showing evidence of the above listed crimes [sexual exploitation of a minor (RCW 9.68A.040) and dealing in depictions of a minor engaged in sexually explicit conduct (RCW 9.68A.050)]." CP at 229, 225.

         The State charged McKee with five separate offenses, nine counts in all: possessing depictions in the first degree (counts 1-3), possessing depictions in the second degree (count 4), commercial sex abuse of a minor (count 5), delivery of methamphetamine and/or heroin to a person under age 18 (counts 6-8), and violation of a no contact order (count 9).

         Prior to trial, McKee moved to suppress the evidence recovered from the cell phone on the grounds that the warrant was overbroad and not based on probable cause. The trial court denied the motion. At trial, the prosecution introduced several images from the cell phone through A.Z.'s testimony. She identified herself in the images. A.Z.'s mother and brother also provided detailed testimony describing the pictures and videos they viewed on the phone and identifying A.Z. as depicted therein.

         A jury convicted McKee of every charge except one count of delivery of a controlled substance to a minor. The trial court sentenced him to 113 months' total confinement. McKee appealed to Division One of the Court of Appeals, raising two issues: (1) that the trial court erred by refusing to suppress the cell phone evidence and (2) that trial counsel was ineffective at his sentencing hearing for failing to argue that all the Possessing Depictions counts constituted the same criminal conduct.

         McKee's briefing on the search warrant issue mentioned a remedy three times in inconsistent terms. In his opening brief, McKee asserted that "all fruits from the search of McKee's phone-which formed the basis for the charges in counts 1 through 4-should have been suppressed .. . [and his] convictions on these counts should be reversed and dismissed." Br. of Appellant at 16 (Wash. Ct. App. No. 73947-6-1 (2016)) (emphasis added). But then in the conclusion of that brief, McKee requested only that the appellate court vacate the convictions: "McKee's convictions on counts 1 through 4 should be vacated based on the faulty warrant." Br. of Appellant at 24. Consistent with the latter language, the State's response in the Court of Appeals characterized McKee's briefing as requesting vacation and suppression: "McKee contends that ... the cell phone content seized pursuant to the warrant should have been suppressed, and that the convictions, therefore, should be vacated." Resp't's Br. at 3 (Wash. Ct. App. No 73947-6-1 (2017)). McKee's reply brief repeated only that request: "For the reasons discussed in the opening brief and here, this Court should vacate McKee's convictions on counts 1 through 4 based on the faulty warrant." Reply Br. of Appellant at 9 (Wash. Ct. App. No. 73947-6-1 (2017)) (emphasis added).

         Even though McKee had not briefed the issue, at oral argument the Court of Appeals asked defense counsel whether, if the evidence stemming from the cell phone warrant were suppressed, sufficient evidence would remain to sustain the challenged convictions. The following one-minute exchange took place:

COURT: Was the only evidence that was introduced at trial for the four counts that you're seeking [to have reversed] based on what the police were able to obtain from the search warrant?
DEFENSE COUNSEL: That was the primary evidence, yes.
COURT: So, there was other evidence?
DEFENSE COUNSEL: Well, other evidence. Urn, A.Z. had no memory of these pictures or of the, the actual clips. But when she saw them, she was able to identify herself in them. That's some evidence. But she had no recollection of them until she was shown them. So I'd say no, that evidence came from what was, um found in the search warrant. Her mother looked at the phone briefly and saw a few things, so perhaps she would have been able to give a vague description that she saw a clip, some photos that showed her ...

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