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State v. Phillip

Court of Appeals of Washington, Division 1

August 5, 2019



         The court has determined that the opinion in the above-entitled case filed on July 1, 2019, shall be withdrawn and a substitute published opinion be filed. Now, therefore, it is hereby

         ORDERED that the opinion filed on July 1, 2019, is withdrawn and a substitute published opinion shall be filed.

          MANN, A.C.J.

         In the digital age that we live in, cell phones are now a "pervasive and insistent part of daily life."[1] But with the advent of this new technology, comes the potential for its abuse. Cell phone data, for example, represents a new frontier in police investigative tactics. Cell-site location information (CSLI) is highly detailed data, which can create a historical map of where a particular cell phone traveled during a set period of time. Based on this technology, police are able to look back in time and find out precisely where anyone was at a given time, buttressed only by the retention policy of the individual's wireless provider.

         The protection against abuse of this highly detailed and personal information is through a familiar mechanism: the constitutional requirements of a warrant. A warrant, supported by probable cause and meeting the particularity requirement, provides an individual with the constitutionally required protections against privacy invasions by the state.

         William Phillip sought discretionary review of a trial court order approving a subpoena issued to Phillip's wireless provider requiring the provider to release Phillip's CSLI records. Because the State failed to seek issuance of a warrant, and State and trial court failed to recognize Phillip's privacy interest in the CSLI records, we reverse, vacate the subpoena, and remand for further proceedings.[2]


         In May 2010, Phillip lived in Portland, Oregon.[3] Seth Frankel lived in Auburn, Washington. Frankel's girlfriend, Bonnie Johnson, lived part-time with Frankel in Auburn and part-time in Portland where she worked.

         On May 21, 2010, Johnson became concerned when she was unable to reach Frankel by phone. Johnson contacted Frankel's neighbor, who went to Frankel's house and observed a body lying on the floor. The Auburn police department responded and discovered Frankel was dead due to a knife wound to his throat. An 18-inch black zip tie was attached to one of Frankel's wrists and another zip tie was found near his body. Frankel's house was locked and appeared orderly other than the area immediately surrounding Frankel's body. A medical examiner estimated Frankel's time of death as between 8:00 p.m. May 21 and 4:30 a.m. May 22, 2010.

         Over the next few days, Auburn police interviewed Johnson multiple times. During these interviews and a consensual search of Johnson's cell phone, police discovered that Johnson had been in frequent contact by telephone with Phillip and another man from Sacramento, California. Text messages between Johnson and Phillip appeared flirtatious.[4]

         On May 25, 2010, at the request of the Auburn police, a Portland police officer visited Phillip. Without telling him that Johnson was dead or that he was investigating a murder, the officer asked if Phillip knew Johnson. Phillip stated that Johnson was a friend. When asked if he had been to Auburn recently, Phillip responded that he wanted to exercise his right to counsel.

         Over the course of their investigation, the Auburn police obtained a total of five warrants. First, on May 27, 2010, the Auburn Police obtained a warrant requiring AT&T to provide them with Phillip's CSLI records. The affidavit for the May 2010 warrant described the crime scene, that Johnson and Frankel were in a relationship, and that Johnson continued to speak to her previous boyfriend, Phillip.

         On June 9, 2010, the police visited the convention center where Phillip worked. Phillip's supervisor explained that Phillip commonly used zip ties in his job. The zip ties used at Phillip's work were identical to the zip ties found in Frankel's home.

         The police received Phillip's CSLI records from AT&T on June 20, 2010. The records revealed that on the day of Frankel's murder Phillip traveled from Portland, Oregon to Auburn, Washington. Phillip remained in Auburn-at times within blocks of Frankel's home-until approximately 9:00 p.m., and then traveled back to Portland.

         On June 22, 2010, the police obtained a warrant to search Phillip's apartment, vehicle, and person. While executing that warrant, the police seized Phillip's cell phone and journal. In his journal, Phillip expressed that he was obsessed with Johnson and that Frankel was not good enough for her.

         Auburn police then spoke with Katy Sanguino, Phillip's mother. She explained that Phillip, who only owned a motorcycle, had borrowed her car from May 21 to May 22, 2010. Sanguino gave the police consent to search her vehicle, where police found traces of blood on the inside driver's door handle.

         In August of 2010, the Washington State Patrol Seattle Crime Laboratory determined that a bloodstained towel from the crime scene revealed two different deoxyribonucleic acid (DNA) types. The first type was from Frankel, the second was from an unknown male. On November 5, 2010, the police obtained a warrant for Phillip's DNA. That DNA sample revealed that Phillip was a possible contributor of the second DNA sample and only about 1 in 2.2 million individuals could have contributed the sample. After the DNA results came in, police arrested Phillip and charged him with first degree murder.

         The police's fourth warrant came on January 25, 2012, and allowed the police to search the physical contents of Phillip's cell phone. In March 2012, Wyman Yip, the King County Prosecutor assigned to Phillip's case, asked the Auburn police to seek a more thorough warrant for Phillip's CSLI records. Yip stated that the May 2010 warrant was defensible, but the affidavit could have included other facts that were known at the time. Police prepared a new affidavit that incorporated the affidavit used to obtain the May 2010 warrant and provided further details about the crime scene and Johnson's relationship with Phillip. The trial court issued the warrant for Phillip's CSLI records on March 22, 2012.

         Pre-trial, Phillip moved to suppress all evidence obtained during the execution of the search warrants. The trial court denied the motion. Although the court found that the May 2010 warrant was not supported by probable cause, it determined that the March 2012 warrant was supported by probable cause and met the requirements of the independent source doctrine. The trial court also determined that the remaining warrants were valid.

         Phillip was tried for first degree murder. After his first trial ended in a hung jury, a second jury convicted Phillip of Frankel's murder. Phillip appealed his conviction to this court.

         On appeal, we concluded that the facts in the affidavits used to obtain the May 2010 and March 2012 warrants for Phillip's CSLI records failed to provide a sufficient factual basis from which to infer that evidence of the crime would likely be found on Phillip's CSLI records. As we explained:

The March 2012 affidavit incorporates the May 2010 affidavit and thus includes the earlier affidavit's brief description of the crime scene, identification of Johnson as Frankel's girlfriend, information that Johnson asked the neighbor to check on Frankel, and description of Phillip as a man with whom Johnson had a close relationship. The March 2012 affidavit provides further details about the crime scene, including the fact that doors were locked and that, except for the area immediately surrounding the body, the apartment appeared untouched. It also includes Johnson's statements that Phillip had served in the military, he was the only person she knew who had ever spoken ill of Frankel, he was the only person she could think of who would want to hurt Frankel, and he was extremely upset when she broke up with him. The affidavit reports Phillip's statement to the Portland police that Johnson was "just a friend" and his invocation of the right to counsel when asked if he had ever been in Auburn.
The affidavit includes copies of text messages between Johnson and Phillip in the week of Frankel's death. The text messages appear flirtatious. In one message, Phillip refers to Frankel as an "unhot old man." In Johnson's reply, she tells Phillip not to speak about Frankel like ...

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