on information received from federal law enforcement, the
Vancouver Police Department and Clark County Sheriffs Office
obtained and executed a search warrant for the home of Darin
Richard Vance to search for depictions of a minor engaged in
sexually explicit conduct. Investigators found several such
images and ultimately charged Vance with 10 counts of
possession of depictions of a minor engaged in sexually
explicit conduct. Following a bench trial, Vance was
convicted on all 10 counts. He appeals his convictions and
argues that the search warrant violated article I, section 7
of the Washington Constitution. He contends that the warrant
was not sufficiently particular, relying on Division
One's decision in State v. McKee, 3 Wn.App. 2d
11, 413 P.3d 1049 (2018), rev 'dand remanded,
438 P.3d 528 (2019). We hold that the warrant in this case was
different from the one found invalid in McKee and
was sufficiently particular to comply with the Fourth
Amendment and article I, section 7. We address Vance's
remaining arguments in the unpublished portion of this
affirm Vance's convictions and sentence.
August 26, 2010, FBI Special Agent Alfred Burney, working
undercover in Detroit, Michigan, used a peer-to-peer file
sharing program to download 35 files from a software user
with an IP address subscribed to Comcast. At least 20 of
those files appeared to be pictures of children engaged in
sexually explicit activity. Burney then submitted an
administrative subpoena to Comcast requesting all subscriber
information for the person using that IP address. Comcast
responded that the IP address belonged to Vance. Burney sent
this information and the downloaded files to the FBI's
Seattle FBI office obtained and confirmed Vance's street
address and sent the information and files it received to
Investigator Maggi Holbrook of the Vancouver Police
Department and the Clark County Sheriffs Office Digital
Evidence Cybercrime Unit.
time of Burney's investigation, the FBI was part of an
interagency, multi-jurisdictional initiative involving the
Department of Justice, the Department of Homeland
Security's United States Immigration and Customs
Enforcement, and the Internet Crimes Against Children task
forces. The sheriffs office's Cybercrime Unit was a local
Internet Crimes Against Children task force, and Holbrook was
the local liaison. Burney was not involved with the task
the information received from the FBI, Detective Patrick
Kennedy of the Vancouver Police Department and Special Agent
Julie Peay of Immigration and Customs Enforcement
independently verified Vance's home address. Kennedy then
obtained a search warrant for Vance's home. The warrant
first authorized a search for "evidence of the crime(s)
of: RCW 9.68A.050 Dealing in depictions of a minor engaged in
sexually explicit conduct and RCW 9.68A.070 Possession of
depictions of a minor engaged in sexually explicit
conduct." Clerk's Papers (CP) at 3. The warrant then
described the items to be seized, including a list of
specific types of electronic devices and media "capable
of being used to commit or further the crimes outlined above,
or to create, access, or store the types of evidence,
contraband, fruits, or instrumentalities of such
crimes." CP at 4.
warrant also identified for seizure the accompanying records,
documents, and information necessary to operate and access
those devices and data. This description of the goods
authorized for seizure concluded with authorization to
transfer any and/or all seized items to the Cybercrime Unit:
[F]or the examination, analysis, and recovery of data from
any seized items to include: graphic/image files in common
formats such as JPG, GIF, PNG or in any other data format in
which they might be stored, pictures, movie files, emails,
spreadsheets, databases, word processing documents, Internet
history, Internet web pages, newsgroup information, passwords
encrypted files, documents, software programs, or any other
data files, whether in allocated or unallocated space on the
media, whether fully or partially intact or deleted, that
are related to the production, creation, collection, trade,
sale, distribution, or retention of files depicting minors
engaged in sexually explicit acts/child pornography.
CP at 6 (emphasis added).
Cybercrime Unit executed the warrant on Vance's home and
seized several electronic devices. The resulting forensic
examination revealed at least 20 images and videos depicting
minors engaged in sexually explicit conduct.
State charged Vance with seven counts of first degree
possession of depictions of a minor engaged in sexually
explicit conduct and three counts of first degree dealing in
depictions of a minor engaged in sexually explicit conduct.
See State v. Vance, 184 Wn.App. 902, 906, 339 P.3d
245 (2014). The trial court redacted from the search warrant
affidavit information obtained by federal agents, found
probable cause for the search warrant no longer existed,
granted the suppression motion, and dismissed the charges
against Vance. See id. at 909-10. Vance then moved
to suppress the evidence seized from his home and dismiss the
case. Id. at 905. The trial court granted the
motion. CP at 593. The State appealed and we reversed.
See id. at 905-06.
remand, Vance filed a new motion to suppress the evidence
seized from his home arguing in part that the warrant was not
sufficiently particular. The trial court denied the motion to
suppress, and the parties proceeded to a bench trial. Just
before trial, the State filed an amended information
dismissing the distribution charges and instead charged Vance
with a total of 10 counts of possession of depictions of
minors engaged in explicit sexual conduct. After a bench
trial, the court found Vance guilty on all 10 counts. Vance
requested an exceptional sentence downward, but the court
imposed a standard range sentence of 77 months of
appeals his convictions and sentence.
of Search Warrant
argues that the search warrant for his electronic devices was
insufficiently particular to satisfy the Fourth Amendment or
article I, section 7, and so all evidence seized as a result
of that warrant should have been suppressed. We disagree.
the Fourth Amendment and article I, section 7 require that a
search warrant describe with particularity the place to be
searched and the persons or things to be seized. State v.
Perrone, 119 Wn.2d 538, 545, 834 P.2d 611 (1992). The
particularity requirement prevents general and overbroad
searches. Id. Where the warrant involves materials
potentially protected by the First Amendment, a greater
degree of particularity is required. Id. at 547. We
review de novo whether a search warrant contains a
sufficiently particularized description of the items to be
searched and seized. Id. at 549.
search warrant's description of the place to be searched
and property to be seized is sufficiently particular if
"it is as specific as the circumstances and the nature
of the activity under investigation permit."
Id. at 547. A generic or general description of the
things to be seized may be sufficient if probable cause is
shown and "a more specific description is
impossible" with the information known to law
enforcement at the time. Id. Search warrants must be
"tested and interpreted in a common sense, practical
manner, rather than in a hypertechnical sense."
Id. at 549.
relies on recent case law specifically addressing warrants
authorizing searches for and seizures of evidence related to
sexually explicit depictions of minors. He analogizes this
case to McKee, 3 Wn.App. 2d 11.
search warrant in McKee listed the alleged crimes as
"Sexual Exploitation of a Minor RCW 9.68A.040,"
"Dealing in depictions of minor engaged in sexually
explicit conduct RCW 9.68A.050." Id. at 18. The
warrant authorized the police to conduct a "physical
dump" of "all of the memory of the phone for
examination." Id. at 29. The warrant then
identified certain "Items Wanted" to be seized from
the defendant's cell phone amounting essentially to any
"electronic data from the cell phone showing evidence of
the above listed crimes." Id. at 18-19.
McKee, Division One of our court held that the
warrant lacked the requisite particularity because it
"was not carefully tailored to the justification to
search and was not limited to data for which there was
probable cause." Id. at 29. In other words,
"the search warrant clearly allow[ed] search and seizure
of data without regard to whether the data [was] connected to
the crime." Id. "The language of the
search warrant left to the discretion of the police what to
McKee court relied on State v. Besola, in
which our Supreme Court held that a mere citation to the
child pornography statute at the top of the warrant did
nothing to make it more particular. 184 Wn.2d 605, 615, 359
P.3d 799 (2015). The warrant in Besola identified
the crime of "Possession of Child Pornography R.C.W.
9.68A.070," and authorized the police to seize:
1. Any and all video tapes, CDs, DVDs, or any other visual
and or audio recordings;
2. Any and all printed pornographic materials;
3. Any photographs, but particularly of minors;
4. Any and all computer hard drives or laptop computers and
any memory storage devices;
5. Any and all documents demonstrating purchase, sale or
transfer of pornographic material.
Id. at 608-09. The warrant's rote citation to
the statute failed to add information, such as the definition
of "child pornography" that would have modified or
limited the evidence that officers could seize. Id.
at 615. Nor did the warrant include specific language using
the citation to the statute "to describe the materials
sought." Id. at 614. The omission of such
limiting information created the "primary defect"
in the warrant-it covered lawfully possessed materials, such
as adult pornography and photographs of minors that did not
depict them engaged in sexually explicit acts. Id.
State argues this case more closely resembles State v.
Martinez, 2 Wn.App. 2d 55, 408 P.3d 721, review
denied, 190 Wn.2d 1028 (2018). There, Division One
upheld a warrant that authorized seizure of any
"photographs, pictures, albums of photographs, books,
newspapers, magazines and other writings on the subject of
sexual activities involving children." Id. at
66. The warrant also authorized the seizure of "pictures
and/or drawings depicting children under the age of eighteen
years who maybe 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)." Id. at 66.
Martinez court held the warrant was sufficiently
particular because rather than merely cite to the statute,
"it use[d] the language 'sexually explicit conduct
as defined in RCW 9.68A.011(3).'" Id. at
67. The court also reasoned that, unlike in Perrone
where the warrant contained the overbroad term "child
pornography," the Martinez warrant used the
statutory language "sexually explicit conduct."
Id. at 66. Finally, while the warrant in
Martinez also authorized the seizure of some
materials that could be lawfully possessed, that alone did
"not automatically make the warrant overbroad."
Id. at 67. "[P]ossession of materials about
sexuality involving children [was] relevant to the charged
offense." Id. The warrant was not overbroad for
authorizing the seizure of relevant materials. Id.
For these reasons, the court concluded the warrant provided
law enforcement with an objective standard to determine what
should be seized. Id.
conclude that the warrant in this case is more analogous to
the one upheld in Martinez than the warrants lacking
particularity struck down in McKee, Perrone, and
Besola. The warrant in this case explained that
there was probable cause to search for "evidence of the
crime(s) of: RCW 9.68.050 Dealing in depictions of a minor
engaged in sexually explicit conduct and RCW 9.68A.070
Possession of depictions of a minor engaged in sexually
explicit conduct." CP at 3. Then throughout, the warrant
authorizes a search for computers or various devices
"capable of being used to commit or further the crimes
outlined above, or to create, access, or store the types of
evidence, contraband, fruits, or ...