State Of Washington, V Jorden David Knight

Opinion

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON STATE OF WASHINGTON, No. 81837-6-I Respondent, v. DIVISION ONE

JORDEN D. KNIGHT, UNPUBLISHED OPINION

Appellant.

LEACH, J. — Jorden David Knight appeals his convictions for five counts of

first degree possession of depictions of a minor engaged in sexually explicit

conduct. Knight argues Vancouver police conducted an unlawful warrantless

search of the Dropbox files it received from the National Center for Missing and

Exploited Children. We disagree and affirm. Knight also argues, and the State

concedes, the trial court should not have imposed conditions of community custody

prohibiting him from entering into certain romantic relationships and requiring him

to submit to urine and breath testing for alcohol. We agree and remand to strike

those conditions from the judgment and sentence.

BACKGROUND

On March 23, 2016, Dropbox, Inc. informed the National Center for Missing

and Exploited Children (NCMEC) that Jorden Knight was using its digital storage

service to store files depicting minors engaged in sexually explicit activity.

Citations and pin cites are based on the Westlaw online version of the cited material. 81837-6-I/2

Dropbox is a digital cloud storage and file sharing company. Its users

upload and store files in their Dropbox accounts. “A Dropbox user who creates a

shared link for a file can then share that file with others by distributing the URL for

the shared link. Any member of the public who clicks on that link or who otherwise

accesses the shared link’s URL can view the associated file without logging into a

Dropbox account.”

When Dropbox discovers files depicting minors engaged in sexually explicit

activity, its content safety team reviews the files to determine whether they violate

their Terms of Service and Acceptable Use Policy 1 and meets the definition of child

pornography under 18 U.S.C. § 2256. If Dropbox determines the files qualify as

apparent child pornography, it creates a “CyberTipline” report and sends it to

NCMEC. Dropbox sent NCMEC a report that included 322 files stored in Knight’s

account.

NCMEC determined Knight lived in Vancouver, Washington. It sent a

“cybertip,” including files and data, to the Internet Crimes Against Children (ICAC)

task force in Seattle. ICAC assigned the tip to the Vancouver Police Digital

Evidence Cybercrime Unit (DECU). Without a warrant, DECU Detective Robert

Givens accessed the 322 files and reviewed three of them in detail. The files

contained child pornography. Based on these files, Vancouver police obtained

1Dropbox’s privacy policy states, we may disclose to parties outside Dropbox files stored in your Dropbox and information about you that we collect when we have a good faith belief that disclosure is reasonably necessary to (a) comply with a law, regulation or compulsory legal request; (b) protect the safety of any person from death or serious bodily injury; (c) prevent fraud or abuse of Dropbox or its users; or (d) to protect Dropbox’s property rights.

2 81837-6-I/3

warrants to search Knight’s Comcast, Dropbox, and Google accounts. Police

obtained a warrant to place a GPS tracking device on Knight’s teal 1995 Ford

Escort. Police also obtained a warrant to search Knight’s home, car, and any

devices and data found for evidence of the crime.

On March 15, 2017, while Knight was home police executed the search

warrant for Knight’s home and car. Police knocked on Knight’s door and

announced they were the police and had a search warrant. Five minutes after

police entered Knight’s home, he walked upstairs from the basement and met the

police. Police seized Knight’s cell phone, two laptop computers, and two thumb

drives. Police arrested Knight.

DECU Investigator Christopher Prothero conducted a forensic analysis of

Knight’s cell phone. Knight’s name, email addresses, and Dropbox account were

associated with the phone. Investigator Prothero recovered pornographic images

and videos of minors that had been deleted from the phone. He also recovered

numerous conversations in a social media application called Kik. Investigator

Prothero discovered Kik was downloaded to the phone using Knight’s email

address. He recovered deleted Kik conversations where Knight exchanged child

pornography files and Dropbox links to files with pornographic names with other

Kik users. One message Knight sent stated, “I told you LOL I have three hundred

plus Dropbox vids of boys and girls and can even take lives of me but you have to

offer something good to get.” In another message he stated, “Have tons of

Dropbox links and vids like this, just making sure you have them too. Boys, girls,

3 81837-6-I/4

mi.” Investigator Prothero compared the files on the phone to the Dropbox files

provided by NCMEC and found that none of the files were the same.

The State charged Knight with five counts of possession of depictions of

a minor engaged in sexually explicit activity in the first degree under

RCW 9.68A.070(1).

Knight asked the trial court to suppress evidence obtained from Comcast,

Dropbox, Google, GPS, and his home, car, and cell phone. Knight also requested

the court exclude the Kik messages. The court granted his GPS request, denied

his other requests, and admitted the evidence seized at Knight’s home. Knight

also asked the court to dismiss the case. The court denied the request.

On May 15, 2019, the trial court convicted Knight on all five counts of

possession of depictions of a minor engaged in sexually explicit conduct in the first

degree. The standard sentencing range was between 77 and 102 months. The

court imposed a sentence of 77 months. The court also imposed a number of

community custody conditions. These included conditions prohibiting Knight from

possessing or consuming alcohol and entering into “a romantic relationship with

another person who has minor children in their care or custody.”

Knight appeals.

4 81837-6-I/5

ANALYSIS

File Search

Knight asserts Vancouver police conducted an illegal warrantless search

when it reviewed three of the Dropbox files it obtained from NCMEC. The State

argues Knight waived this claim by not raising it at trial.

Generally, an appellate court will not review issues raised for the first time

on appeal. 2 A recognized exception to this rule allows review if the appellant

shows a “manifest error affecting a constitutional right.” 3

To establish a manifest constitutional error, the appellant must identify a

constitutional error and make a showing the error likely prejudiced their rights at

trial. 4 “It is this showing of actual prejudice that makes the error ‘manifest,’ allowing

appellate review.” 5 “Thus, a court previews the merits of the constitutional

argument first raised on appeal to determine if it is likely to succeed.” 6

Knight argues Vancouver police violated article I, section 7 of the

Washington State Constitution by searching three Dropbox files without a warrant

and that no exception to the warrant requirement applies. Article I, section 7

provides, “No person shall be disturbed in his private affairs, or his home invaded,

without authority of law.” “This provision prohibits the State from unreasonably

intruding on a person’s private affairs and places a greater emphasis on the right

2RAP 2.5(a). 3RAP 2.5(a)(3). 4 State v. Kirkman, 159 Wn.2d 918, 926-27, 155 P.3d 125 (2007). 5 Kirkman, 159 Wn.2d at 927 (citing State v. McFarland, 127 Wn.2d 322,

333, 899 P.2d 1251 (1995)). 6 State v. Reeder, 181 Wn. App. 897, 912, 330 P.3d 786 (2014).

5 81837-6-I/6

to privacy than the Fourth Amendment to the United States Constitution does.” 7

“Generally, officers of the State must obtain a warrant before intruding into the

private affairs of others, and we presume that warrantless searches violate both

[Washington State and United States] constitutions.” 8 The State bears the burden

of overcoming this presumption and demonstrating the warrantless search fell

under a narrow exception to the warrant requirement. 9

The State argues Vancouver police did not need a warrant to review the

three Dropbox files it received because Knight did not have a reasonable

expectation to privacy when he previously shared Dropbox links through Kik.

Washington courts do not extend article I, section 7 protections to information

voluntarily held out to the public. 10 “[W]hat is voluntarily exposed to the general

public and observable without the use of enhancement devices from an

unprotected area is not considered part of a person's private affairs.” 11

In State v. Peppin, 12 police used file sharing software to access three digital

files depicting child pornography that Peppin shared. 13 Peppin was convicted of

first degree possession of depictions of a minor engaged in sexually explicit

7 Reeder, 181 Wn.2d at 912 (citing State v. Young, 123 Wn.2d 173, 179, 867 P.2d 593 (1994) (citing State v, Stroud, 106 Wn.2d 144, 148, 720 P.2d 436 (1986); State v. Simpson, 95 Wn.2d 170, 178, 622 P.2d 1199 (1980); State v. Chacon Arreola, 176 Wn.2d 284, 291, 290 P.3d 983 (2012)). 8 State v. Villela, 194 Wn.2d 451, 456, 450 P.3d 170 (2019) (quoting State

v. Day, 161 Wn.2d 889, 893, 168 P.3d 1265 (2007)). 9 Villela, 194 Wn.2d at 458. 10 State v. Peppin, 186 Wn. App. 901, 910, 347 P.3d 906 (2015). 11 Peppin, 186 Wn. App. at 910 (quoting State v. Young, 123 Wn.2d 173,

182, 867 P.2d 593 (1994)). 12 186 Wn. App. 901, 347 P.3d 906 (2015). 13 Peppin, 186 Wn. App. at 903-06.

6 81837-6-I/7

conduct. 14 On appeal, Peppin argued he had a reasonable expectation to privacy

in his computer files and police violated his Washington State Constitution

article I, section 7 and Fourth Amendment rights. 15 We determined Peppin did not

have a constitutionally protected right to privacy in the files because he shared

them with the public. 16

Here, Knight shared Dropbox links through Kik. So, he did not have a

reasonable expectation of privacy in the Dropbox files. And, because Knight did

not have a reasonable expectation of privacy, Vancouver police did not conduct

an unlawful warrantless search when they viewed the three Dropbox files. The

State has met its burden of demonstrating the warrantless search fell under a

narrow exception to the warrant requirement.

The State also argues that even if the exception to the warrant requirement

does not apply, the private search doctrine applies to NCME and the silver platter

doctrine applies to police, so police legally viewed the files and the files were

properly admitted at trial. We agree.

“Under the private search doctrine a warrantless search by a state actor

does not offend the Fourth Amendment if the search does not expand the scope

of the private search.” 17 “Underlying this doctrine is the rationale that an

individual’s reasonable expectation of privacy is destroyed when the private actor

14 Peppin, 186 Wn. App. at 903. 15 Peppin, 186 Wn. App. at 903. 16 Peppin, 186 Wn. App. at 910. 17 State v. Eisefeldt, 163 Wn.2d 628, 636, 185 P.3d 580 (2008).

7 81837-6-I/8

conducts his search.” 18 The private search doctrine does not apply in

Washington. 19 But, the silver platter doctrine provides that “evidence lawfully

obtained under the laws of another jurisdiction is admissible in Washington courts

even if the evidence was obtained in a manner that would violate Washington

law.” 20

Here, Dropbox, a private entity, conducted a search of Knight’s Dropbox

files. Dropbox’s privacy policy permits it to conduct searches of its users’ files.

Under the private search doctrine, Dropbox’s search destroyed Knight’s

reasonable expectation of privacy. NCMEC, a federal government agency not

governed by article I, section 7 received and reviewed the files Dropbox sent.

NCMEC’s review did not expand the scope of the Dropbox’s search. So, under

the private search doctrine, NCMEC’s review of the three files was lawful.

Because NCMEC sent the files to Vancouver police for review, the silver

platter doctrine applies. “Evidence is admissible under this doctrine when (1) the

foreign jurisdiction lawfully obtained evidence and (2) the forum state's officers did

not act as agents or cooperate or assist the foreign jurisdiction.” 21 The trial court

found NCMEC lawfully obtained the Dropbox files from Dropbox and that the

Vancouver police did not act as NCMEC’s agent or cooperate or assist in obtaining

the Dropbox files. Knight does not contend the contrary on appeal. Instead, he

18 Eisefeldt, 163 Wn.2d at 636 (citing United States v. Jacobsen, 466 U.S. 109, 119, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984)). 19 Eisefeldt, 163 Wn.2d at 636. 20 State v. Martinez, 2 Wn. App. 2d 55, 64, 408 P.3d 721 (2018). 21 Martinez, 2 Wn. App. 2d at 64.

8 81837-6-I/9

contends NCMEC is not a law enforcement agency of a foreign jurisdiction covered

by the silver platter doctrine. We disagree. NCMEC has broad federal law

enforcement powers under two primary statutes 18 U.S.C. § 2258 and 34 U.S.C.

§ 11293. NCMEC is statutorily obligated to operate the official national

clearinghouse for information about missing and exploited children to help law

enforcement locate and recover those children, to track and identify patterns of

attempted child abductions, and to operate the CyberTipline as a means of

combating Internet child sexual exploitation. 22 It must maintain the electronic tip

line for Internet Service Providers (ISPs) to use to report possible Internet child

sexual exploitations to the government and must forward every single report it

receives to federal law enforcement agencies. 23 The argument that NCMEC is

not an arm of federal law enforcement is without merit.

So, Vancouver police lawfully reviewed the three files and obtained

warrants before conducting additional searches. Because Vancouver police did

not conduct an unconstitutional warrantless search of the Dropbox files, the trial

court properly admitted those files and derivative evidence.

After previewing the merits of Knight’s constitutional argument and the

State’s response, we determine Knight cannot demonstrate a manifest error

affecting a constitutional right. We affirm.

22 34 U.S.C. § 11293. 23 18 U.S.C. § 2258.

9 81837-6-I/10

Because Knight cannot show any unlawful search, we need not reach the

State’s contraband, term of use, and independent source arguments supporting its

position.

Community Custody Conditions

Knight appeals the following community custody conditions.

4. You shall refrain from possessing or consuming alcohol without prior approval from DOC and all treatment providers. RCW 9.94A.703(3)(e).

5. You shall submit to urine, breath, PBT/BAC, or other monitoring whenever requested to do so by your community corrections officer to monitor compliance with abstention from alcohol and non- prescribed controlled substances. [. . . ]

11. You shall not enter into a romantic relationship with another person who has minor children in their care or custody without prior approval of DOC and your sexual deviancy treatment provider.

The State concedes the trial court’s imposition of community custody

conditions prohibiting Knight from entering into certain romantic relationships and

requiring Knight submit to urine and breath testing for alcohol were in error. We

accept the concessions and remand to strike those conditions.

Statement of Additional Grounds

Knight claims two errors in his pro se statement of additional grounds. A

defendant may file a pro se statement of additional grounds for review to identify

and discuss those matters the defendant believes have not been adequately

addressed by counsel. 24 “Reference to the record and citation to authorities are

24 RAP 10.10(a).

10 81837-6-I/11

not necessary or required, but the appellate court will not consider a defendant’s

statement of additional grounds for review if it does not inform the court of the

nature and occurrence of alleged errors.”25 And, we are not obligated to search

the record for support of claims made in a defendant’s statement of additional

grounds for review. 26

First, Knight argues the trial court unfairly imposed an excessive sentence.

RCW 9.94A.585 allows a defendant sentenced to an exceptional sentence to

challenge it as excessive but prohibits a defendant from appealing a sentence

within the standard range. The standard sentence range here was 77 to 102

months. And, the trial court imposed the low end of the range at 77 months. So,

Knight cannot appeal this sentence.

Second, Knight challenges RCW 9.68A.070 claiming it authorizes courts to

impose excessive and unlawful punishment. We presume the statute

constitutional, and the burden is on Knight to prove otherwise. 27 Knight has

presented no persuasive argument that the statute is unconstitutional, so this claim

fails.

CONCLUSION

Because the police lawfully reviewed the Dropbox files before obtaining

search warrants, we affirm Knight’s convictions for possession of depictions of a

minor engaged in sexually explicit conduct in the first degree. We remand to the

25 RAP 10.10(c). 26 RAP 10.10(c). 27 State v. McCuistion, 174 Wn.2d 369, 387, 275 P.3d 1092 (2012).

11 81837-6-I/12

trial court to strike the conditions of community custody prohibiting Knight from

entering into certain “romantic relationships” and requiring Knight to submit to urine

and breath testing for alcohol.

WE CONCUR: