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.
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.
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.
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).
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.
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.
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).
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
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
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 ...