IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Personal No. 82319-1-I Restraint Petition of DIVISION ONE DOUGLAS WAMBA, UNPUBLISHED OPINION Petitioner.
SMITH, J. — A jury found Douglas Wamba guilty of nine counts of varying
degrees of child rape and child molestation. In this personal restraint petition
(PRP), Wamba requests a reference hearing, or that we vacate his convictions
and order a new trial, or grant him a new sentencing hearing. Wamba contends
that he received ineffective assistance of counsel when his attorney did not move
to suppress evidence obtained from his cell phone and when his sentencing
attorneys failed to ask the court to remove his shackles at sentencing. We deny
Wamba’s request for a reference hearing and his PRP because the record does
not support his assertion that he is entitled to relief.
FACTS
The facts relating to the petitioner’s crimes are set out in the Court of
Appeals unpublished decision. State v. Wamba, No. 78823-0-I (Wash. Ct. App.
Apr. 27, 2020) (unpublished),https://www.courts.wa.gov/opinions/pdf/788230.pdf,
review denied, 196 Wn.2d 1007, 471 P.3d 213 (2020). On July 24, 2018,
Wamba was convicted of nine counts of varying degrees of child rape and child
molestation. Wamba, No. 78823-0-I, slip op. at 1. Wamba received an
Citations and pin cites are based on the Westlaw online version of the cited material. No. 82319-1-I/2
indeterminate sentence of 340 months to life. Wamba directly appealed his
conviction contending that the prosecutor committed misconduct, that he
received ineffective assistance of counsel when his attorney failed to call a
forensic specialist as a witness, that he was deprived of his right to confront his
accuser, and that certain community custody conditions and legal financial
obligations were imposed in error. Wamba, No. 78823-0-I, slip op. at 4. On April
27, 2020, we affirmed in part, but remanded to strike the challenged community
custody conditions and interest on legal financial obligations. Wamba, No.
78823-0-I, slip op. at 4.
On December 15, 2020, Wamba initiated a PRP. In Wamba’s declaration,
Wamba asserted that on September 8, 2016, after Detective Suzanne P. Eviston
interrogated him, she returned Wamba’s possessions to him, then grabbed his
cell phone out of his hands telling him that she was going to hold on to it.
Furthermore, Wamba states that when he appeared for sentencing, he was
shackled and remained shackled throughout the hearing, and at no time did his
attorneys request that the shackles be removed.
ANALYSIS
Wamba contends that he was deprived of his right to effective counsel as
guaranteed by the Sixth and Fourteenth Amendments to the United States
Constitution, and article I, section 3 of the Washington State Constitution when
his counsel failed to file a motion to suppress the evidence obtained from the
search and seizure of his cell phone and failed to ask the court to remove his
shackles during the sentencing hearing. We disagree.
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A petitioner may seek relief from governmental restraint where “[t]he
conviction was obtained or the sentence or other order entered in a criminal
proceeding or civil proceeding instituted by the state or local government was
imposed or entered in violation of the Constitution of the United States or the
Constitution or laws of the State of Washington.” RAP 16.4(c)(2). “Relief by way
of a collateral challenge to a conviction is extraordinary, and the petitioner must
meet a high standard before this court will disturb an otherwise settled judgment.”
In re Pers. Restraint of Coats, 173 Wn.2d 123, 132, 267 P.3d 324 (2011).
Accordingly, “personal restraint petitioners who have had prior opportunity for
judicial review must show that they were actually and substantially prejudiced by
constitutional error or that their trials suffered from a fundamental defect of a non-
constitutional nature that inherently resulted in a complete miscarriage of justice.”
Coats, 173 Wn.2d at 132.
“This court has three options regarding constitutional issues raised in a
personal restraint petition”:
1. If a petitioner fails to meet the threshold burden of showing actual prejudice arising from constitutional error, the petition must be dismissed; 2. If a petitioner makes at least a prima facie showing of actual prejudice, but the merits of the contentions cannot be determined solely on the record, the court should remand the petition for a full hearing on the merits or for a reference hearing pursuant to RAP 16.11(a) and RAP 16.12; 3. If the court is convinced a petitioner has proven actual prejudicial error, the court should grant the Personal Restraint Petition without remanding the cause for further hearing.
In re Pers. Restraint of Rice, 118 Wn.2d 876, 885, 828 P.2d 1086 (1992).
To make the required prima facie showing for a reference hearing, the
petitioner must “state in his petition the facts underlying the claim of unlawful
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restraint and the evidence available to support the factual allegations.” Rice, 118
Wn.2d at 885-86. “[T]he petitioner must state with particularity facts which, if
proven, would entitle him to relief” and “must present evidence showing that his
factual allegations are based on more than speculation, conjecture, or
inadmissible hearsay.” Rice, 118 Wn.2d at 886. “Once the petitioner makes this
threshold showing, the court will then examine the State’s response to the
petition,” which “must answer the allegations of the petition and identify all
material disputed questions of fact.” Rice, 118 Wn.2d at 886. “If the parties’
materials establish the existence of material disputed issues of fact, then the
superior court will be directed to hold a reference hearing in order to resolve the
factual questions.” Rice, 118 Wn.2d at 886-87.
Phone Seizure and Search
Wamba asserts that the seizure of his cell phone was unlawful and that he
was prejudiced by the introduction of the evidence acquired from his phone
without which the State could not have proved their case. Wamba makes three
contentions as to why the seizure and search of his phone was unlawful. First,
Wamba contends that he can establish at a reference hearing, if given the
opportunity, that the seizure of his cell phone was invalid and violated his federal
and state rights because his phone was taken without a warrant, which was
necessary because it was taken from him after he was told he was free to leave.
Next, Wamba contends that the warrant that was issued lacked probable cause.
Lastly, he contends that the warrant lacked particularity.
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1) Search Incident to Arrest
“The Fourth Amendment [to the United States Constitution] protects
individuals from unreasonable searches and seizures.” State v. VanNess, 186
Wn. App. 148, 155, 344 P.3d 713 (2015). The Washington State Constitution,
which provides more extensive privacy protections than those provided under the
Fourth Amendment, further narrows the State’s authority to search. VanNess,
186 Wn. App. at 155; State v. Valdez, 167 Wn.2d 761, 771-72, 224 P.3d 751
(2009). Accordingly, when presented with arguments under both the state and
federal constitutions, we first examine the state constitutional argument.
VanNess, 186 Wn. App. at 155. If a search is invalid under the Washington
State Constitution, any inquiry into its validity ends there. State v. Parker, 139
Wn.2d 486, 492-93, 987 P.2d 73 (1999). Under article I section 7 of our state
constitution, “a warrantless search is per se unreasonable unless the State
proves that one of the few ‘carefully drawn and jealously guarded exceptions’
applies.” State v. Byrd, 178 Wn.2d 611, 616, 310 P.3d 793 (2013) (quoting State
v. Ortega, 177 Wn.2d 116, 122, 297 P.3d 57 (2013)). The State’s burden of
proof in this context is a “heavy burden.” Parker, 139 Wn.2d at 496.
“[T]he police may seize an individual’s phone pursuant to a lawful search
incident to arrest to prevent the destruction of evidence, Valdez, 167 Wn.2d at
776, but may search the phone (including text messages) only with a warrant, a
valid exception to the warrant requirement, or the phone owner’s express
consent.” State v. Hinton, 179 Wn.2d 862, 881, 319 P.3d 9 (2014). “The right to
search incident to a lawful custodial arrest, once acquired, terminates no later
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than when the officer announces that he arrestee will be released rather than
booked.” State v. McKenna, 91 Wn. App. 554, 561-62, 958 P.2d 1017 (1998).
Here, Wamba does not challenge the initial seizure of his phone at his
arrest, instead he contends that there was a second seizure of his cell phone,
which was unlawful because it took place after he was free to leave and his
phone had been returned to him. Wamba asserts that Detective Eviston returned
his cell phone to him when the arrest had concluded, but then took it from him
again before he left the interview room. Wamba asserts a reference hearing is
warranted to prove the second seizure took place and therefore the evidence
obtained from the phone should have been suppressed. Wamba supports this
claim by citing to McKenna, where McKenna appealed her conviction for
possession of methamphetamine claiming that the admission of evidence was
not supported by a search incident to arrest because she was free to go before
the search was conducted. 91 Wn. App. at 561-62. We agreed with McKenna
and held that the evidence was improperly admitted because her arrest
terminated before an officer searched McKenna’s pockets. McKenna, 91 Wn.
App. at 562.
However, the evidence in the record here does not show that Wamba’s
phone was seized after Wamba was told he was free to go. Because there is an
absence of evidence in the record that Detective Eviston took Wamba’s cell
phone after the permissible search incident to the arrest, we presume it did not
occur. Additionally, Wamba’s own declaration as the only evidence to support
his claim fails to establish material disputed issues of fact sufficient to trigger a
6 No. 82319-1-I/7
full hearing on the merits or a reference hearing pursuant to RAP 16.11(a) and
.12. This case is similar to In re Pers. Restraint of Reise, 146 Wn. App. 772, 789,
192 P.3d 949 (2008) which held that the petition could not be resolved solely on
the current record and that there was no reason to remand for a reference
hearing in superior court to resolve the disputed factual issues when the disputed
facts arise only from a self-serving affidavit of the defendant. It is distinguishable
from McKenna because here the police seized Wamba’s phone while Wamba
was still under arrest and the evidence does not support that the police seized it
a second time after he was free to go.
Wamba disagrees and points to Detective Eviston’s testimony in his reply
brief, claiming that because there is a contradiction as to who took the phone
initially and how it was retained, his petition cannot be determined on the record.
He asserts that the petition must be transferred to superior court for a reference
hearing to prove that the cell phone was unlawfully taken from him after it had
been returned to him and he was released. According to Wamba, the record
stated this for Detective Eviston’s testimony (which was not produced):
“Q: And, again, just to be clear, we’re talking about the extraction of the phone that you had taken from the defendant when you contacted him in September; is that right? A: I interviewed him in September and then again. I interviewed him twice. Q: And when did you take the phone? A: After the first interview, I believe.”
May 30, 2018, transcript at page 16. (Emphasis added)[.]
“Q: And you were the one that took the phone from the defendant initially? A: Yes.”
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May 30, 2018, transcript at page 50. (Emphasis added).
Wamba specifically points to Detective Eviston’s answer that she had
taken his phone “after the first interview” to support his claim that when she
concluded the interview and released him, she returned his property to him, but
when she realized that she returned his cell phone, she grabbed it out of his
hand. However, we do not have the record before us and the testimony from the
detective was not provided. Even if Wamba’s statement of what is in the record
is accurate, the testimony does not reflect that Detective Eviston returned the
phone to Wamba and then took it back or that she did so after telling him he was
free to go. The evidence in the record does not show that Wamba’s phone was
seized unlawfully and therefore there is no reasonable probability a motion to
suppress would have been granted.
2) Probable Cause for the Warrant
Wamba contends that there was no probable cause to search his cell
phone’s web browsing activity, web history, browser history and bookmark
addresses, or information pertaining to relationships to other devices. “ ‘The
warrant clause of the Fourth Amendment of the United States Constitution and
article 1, section 7 of the Washington Constitution require that a search warrant
be issued upon a determination of probable cause based upon ‘facts and
circumstances sufficient to establish a reasonable inference’ that criminal activity
is occurring or that contraband exists at a certain location.’ ” State v. Vickers,
148 Wn.2d 91, 108, 59 P.3d 58 (2002) (internal quotations omitted) (quoting
State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999)). “Probable cause is
8 No. 82319-1-I/9
established when an affidavit supporting a search warrant provides sufficient
facts for a reasonable person to conclude [that] there is a probability the
defendant is involved in the criminal activity.” Vickers, 148 Wn.2d at 108. A
magistrate may then issue a search warrant “based on information received from
an informant if the application establishes probable cause to believe that the
items sought will be found in the place to be searched.” State v. Casto, 39 Wn.
App. 229, 234, 692 P.2d 890 (1984). Mere belief or conclusory statements in a
police officer’s affidavit in support of the search warrant application does not
provide a factual basis for a magistrate to make an independent judgment of the
informant’s reliability. State v. Steenerson, 38 Wn. App 722, 725-726, 688 P.2d
544 (1984).
The magistrate judge’s decision is reviewed for abuse of discretion.
Vickers, 148 Wn.2d at 108. We generally “accord[ ] great deference to the
magistrate and view[ ] the supporting affidavit for a search warrant in the light of
common sense.” Vickers, 148 Wn.2d at 108. “Doubts concerning the existence
of probable cause are generally resolved in favor of issuing the search warrant.”
Vickers, 148 Wn. 2d at 108-09.
Here, probable cause was adequately established because the warrant’s
affidavit provided that; the victim and mother stated that Wamba had explicit
nude images of the victim on his cell phone, the incident was reported to the
police along with screenshots of the conversations between Wamba and the
victim, Wamba pretended to be the victim through Facebook and other social
media, and Wamba sent text messages attempting to coerce the victim and her
9 No. 82319-1-I/10
mother. Because these facts are more than mere belief and conclusory
statements and provide for a reasonable inference that evidence of criminal
activity would be found in Wamba’s web browsing history and activity, the
affidavit adequately established probable cause to acquire a warrant to search
Wamba’s phone content. The trial court did not err by concluding that the
warrant was supported by probable cause.
3) Warrant Particularity
Wamba contends that the warrant for the seizure of his phone lacked
particularity because the description in the warrant allowed for an overbroad
search of the cell phone data without limitations.
“ ‘The [F]ourth [A]mendment to the United States Constitution requires that
a search warrant describe with particularity the place to be searched and the
person or things to be seized’ ”, but the particularity requirement can be “ ‘met if
the substance to be seized is described with reasonable particularity.’ ” State v.
Perrone, 119 Wn.2d 538, 546, 834 P.2d 611 (1992) (internal quotation marks
omitted) (quoting State v. Withers, 8 Wn. App. 123, 126, 504 P.2d 1151 (1972)).
The purposes of particularity in a search warrant are “the prevention of general
searches, prevention of the seizure of objects on the mistaken assumption that
they fall within the issuing magistrate’s authorization, and prevention of the
issuance of warrants on loose, vague, or doubtful bases of fact.” Perrone, 119
Wn.2d at 545; 2 W. WAYNE R. LAFAVE, SEARCH AND SEIZURE § 4.6(a), at 234-36
(2d ed. 1987). “ ‘[t]he warrant must enable the searcher to reasonably ascertain
and identify the things which are authorized to be seized.’ ” Perrone, 119 Wn.2d
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at 546 (quoting United States v. Cook, 657 F.2d 730, 733 (5th Cir. 1981)). “[T]he
degree of particularity required will depend on the nature of the materials sought
and the circumstances of each case.” Perrone, 119 Wn.2d at 547. “Where a
search warrant authorizing a search for materials protected by the First
Amendment is concerned, the degree of particularity demanded is greater than in
the case where the materials sought are not protected by the First Amendment.”
Perrone, 119 Wn.2d at 547. Courts are to evaluate search warrants “in a
common sense, practical manner, rather than in a hypertechnical sense.”
Perrone, 119 Wn.2d at 549; see United States v. Turner, 770 F.2d 1508, 1510
(9th Cir. 1985). Particularity is reviewed de novo. Perrone, 119 Wn.2d 549;
State v. Garcia, 140 Wn. App. 609, 622, 166 P.3d 848 (2007).
“The fact that a warrant lists generic classifications . . . does not
necessarily result in an impermissibly broad warrant.” State v. Stenson, 132
Wn.2d 668, 692, 940 P.2d 1239 (1997). Where a particular description of the
items to be seized is not available at the time the warrant issues, courts have
reasoned that the use of a generic term or general description may be sufficient.
Perrone, 119 Wn.2d at 547. Warrants “ ‘must enable the searcher to reasonably
ascertain and identify the things which are authorized to be seized.’ ” State v.
Besola, 184 Wn.2d 605, 610, 359 P.3d 799 (2015) (internal quotation marks
omitted) (quoting Perrone, 119 Wn.2d at 546). “By describing the items to be
seized with particularity, the warrant limits the discretion of the executing officer
to determine what to seize.” Besola, 184 Wn.2d at 610. “When a warrant lists
items protected by the First Amendment, courts demand the highest degree of
11 No. 82319-1-I/12
particularity.” Chambers, 88 Wn. App. at 644, 945 P.2d 1172 (1997), Perrone,
119 Wn.2d at 547. Additionally, an affidavit may cure an overbroad warrant
“where the affidavit and the search warrant are physically attached, and the
warrant expressly refers to the affidavit and incorporates it with ‘suitable words of
reference.’ ” State v. Riley, 121 Wn.2d 22, 29, 846 P.2d 1365 (1993) (quoting
Bloom v. State, 283 So.2d 134, 136 (Fla. Dist. Ct. App. 1973)). Lastly, “lawful
materials also can be relevant to a crime,” and the “fact that a warrant authorizes
seizure of lawful materials does not automatically make the warrant overbroad.”
State v. Martinez, 2 Wn. App. 2d 55, 67, 408 P.3d 721 (2018).
Here, Wamba relies chiefly on State v. McKee, 3 Wn. App. 2d 11, 24-25,
413 P.3d 1049 (2018), rev’d and remanded on other grounds, 193 Wn. 2d 271,
438 P.3d 528 (2019), and on Besola. In McKee, the defendant appealed his
convictions for four convictions of possession of depictions of a minor engaging
in sexually explicit conduct. 3 Wn. App. at 14. He contended that the search
warrant for his cell phone violated the particularity requirement because the
warrant contained broad descriptions of cell phone data the police were allowed
to search. 3 Wn. App. at 14. We held that the warrant was not carefully tailored
to the justification to search and was not limited to data for which there was
probable cause because the warrant language was generalized by only including
the statutes and lacked an attached affidavit that could have met the particularity
requirement. McKee, 3 Wn. App. at 27-29.
In Besola, our court concluded that the search warrant citing only to the
child pornography statue did not “modify or limit the items listed in the warrant”
12 No. 82319-1-I/13
and that “these descriptions were overbroad because they allowed officers to
seize lawfully possessed materials, such as adult pornography, when the
description could easily have been made more particular” by using the precise
statutory language to describe the materials sought. 184 Wn.2d at 609-13.
Here, as in McKee and Besola, the warrant similarly only cites to the
statutes regarding the crimes believed to be committed. However, this case is
distinguishable because there was an attached affidavit to the warrant that cured
any over-broadness. The affidavit clearly indicated how the cell phone data is
connected to the crime and established probable cause. The affidavit for a
search warrant gave guidance to the police on what to search for by indicating
that Wamba pretended to be the victim through Facebook and other social
media, had explicit nude images of the victim on his cell phone, and sent text
messages attempting to coerce the victim and her mother. In addition to
probable cause, the affidavit specifically stated that a search warrant should
extend to:
All electronic information and data, in whatever form, stored in mobile device and/or storage media that would tend to indicate ownership, possession, use or control and the pertinent dates and times of such possession and control . . .
…[And to] All electronic communication and data stored on the phone related to the above listed crimes, such as emails, text messages, chats, web browsing activity to include web history, browser history and bookmark web addresses, voice mail, call history, contacts, information pertaining to relationships to other devices, applications stored on the phone and all video and images.
Because the warrant and its affidavit stated in detail the crime under investigation
and where to search in the phone, the warrant did not lack particularity.
13 No. 82319-1-I/14
Because Wamba fails to prove that the warrant was overbroad or lacked
particularity, he has not met his burden to prove that a motion to suppress
evidence would have been granted. Furthermore, even if the cellphone evidence
had not been introduced, there is overwhelming evidence to convict him.
Thomas, 109 Wn.2d at 225. The State relied on significant additional evidence
such as the victim and the mother’s testimony of Wamba’s violations, evidence
that the victim was previously coerced, the victim’s disclosure of the molestation
to her friend and friend’s mother, and the police and Child Protective Service’s
previous investigations, to prove their case. Therefore, Wamba failed to prove
any prejudice due to the failure to move to suppress the evidence found in his
cell phone.
Shackling
Wamba also contends that he received ineffective assistance of counsel
because his counsel failed to ask the court to remove his shackles during the
sentencing hearing. Wamba further claims that it is the State’s burden to prove
beyond a reasonable doubt that the prejudice associated with the shackling was
harmless. We disagree.
The right to a fair trial requires that a criminal defendant may “ ‘appear at
trial free from all bonds or shackles except in extraordinary circumstances.’ ”
State v. Jackson, 195 Wn.2d 841, 852, 467 P.3d 97 (2020) (quoting State v.
Finch, 137 Wn.2d 792, 842, 975 P.2d 967 (1999)). “Restraints are viewed with
disfavor because they may abridge important constitutional rights, including the
presumption of innocence, privilege of testifying in one’s own behalf, and right to
14 No. 82319-1-I/15
consult with counsel during trial.” State v. Hartzog, 96 Wn.2d 383, 398, 635 P.2d
694 (1981). This right extends to sentencing, in part because even though a
judge may be aware the defendant is incarcerated, there is a “practical
impossibility for a defendant to prove whether a . . . judge was unconsciously
prejudiced by the restraints at any point during the case.” Jackson, 195 Wn.2d at
856. However, “the right to be free from restraint is not absolute, and trial court
judges are vested with the discretion to determine measures that implicate
courtroom security, including whether to restrain a defendant in some capacity in
order to prevent injury.” Jackson, 195 Wn.2d at 852. This “discretion must be
founded upon a factual basis set forth in the record. A broad general policy of
imposing physical restraints upon prison inmates charged with new offenses
because they may be ‘potentially dangerous’ is a failure to exercise discretion.”
Hartzog, 96 Wn.2d at 400. Thus, an “individualized inquiry” into the use of
restraints is required. Jackson, 195 Wn.2d at 854. The court should consider
the seriousness of the present charge against the defendant; defendant’s temperament and character; his age and physical attributes; his past record; past escapes or attempted escapes, and evidence of a present plan to escape; threats to harm others or cause a disturbance; self-destructive tendencies; the risk of mob violence or of attempted revenge by others; the possibility of rescue by other offenders still at large; the size and mood of the audience; the nature and physical security of the courtroom; and the adequacy and availability of alternative remedies.
State v. Hutchinson, 135 Wn.2d 863, 887-88, 959 P.2d 1061 (1998) (quoting
Hartzog, 96 Wn.2d at 400).
Here, the record is silent as to whether the court inquired about Wamba’s
shackling. However, even if Wamba was shackled and the court failed to
perform a proper inquiry of the shackling, he has failed to establish actual
15 No. 82319-1-I/16
prejudice. The judge indicated that he had reviewed a copy of the presentence
investigation report from the Department of Corrections, a sentencing
memorandum from the State, victim impact statements, and several letters of
support from defense counsel, and then provided a detailed explanation for its
ruling regarding its imposition of the exceptional sentence. Wamba fails to prove
that the court would have imposed a different sentence had he not been
shackled.
Wamba incorrectly asserts that the State bears the burden to establish
prejudice, relying on Jackson, where the court held that once the defendant
established he was unconstitutionally shackled, the State had the burden to
prove the error was harmless beyond a reasonable doubt. 195 Wn.2d at 856.
Unlike in Jackson, Wamba here makes an ineffective assistance of counsel
claim, which requires him to show prejudice, see Rice, 118 Wn.2d at 885, and
does so through collateral review, which also places the burden of establishing
prejudice on Wamba. Because Wamba does not make any showing of
prejudice, his claim fails. Wamba’s counsel was not ineffective.
We deny Wamba’s petition.
WE CONCUR: