State v. Denham

• Court: Washington Supreme Court
• Decided: July 1, 2021
• Docket: 98591-0
• Status: Published

Opinion

NOTICE: SLIP OPINION (not the court’s final written decision)

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON

) STATE OF WASHINGTON, ) ) Petitioner, ) No. 98591-0 ) v. ) ) LYNELL AVERY DENHAM, ) ) Respondent. ) Filed: July 1, 2021 _______________________________)

GONZÁLEZ, C.J.— A valuable diamond was stolen from a jewelry store.

Within days, Lynell Avery Denham sold that diamond. Police suspected Denham

committed the burglary and got a warrant for his cell phone records. Cell site

location information included in those records placed Denham’s phone near the

jewelry store around the time of the burglary. Denham contends that the affidavits

supporting the warrant for his phone records lacked specific facts that would

suggest evidence of a crime would be found in those records. He also contends a

video interview where he discussed sophisticated burglary techniques was

improperly admitted. We reverse the Court of Appeals and affirm Denham’s

conviction. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Denham, No. 98591-0

FACTS

Someone burgled Mallinak Designs Jewelers over Veterans Day weekend in

2016. Mallinak Designs had an elaborate security system and stored a great deal of

valuable jewelry in a large, heavy safe. Before the burglary, someone had

removed an interior lock on a utility room that was accessible through a roof hatch,

and the burglar entered through that roof hatch while the store was closed. Doors

were cut or sabotaged, the alarm system was deactivated, and the safe’s locking

mechanisms were disabled. 1 The burglar made off with a great deal of jewels and

jewelry, including a 5.29 carat diamond with certification papers from the

Gemological Institute of America. No suspect fingerprints were left, but Frank

Mallinak, the store owner, did find a small plastic piece that he did not recognize.

Within days of the burglary, Denham sold the stolen 5.29 carat diamond,

along with its certification paper work. This sale was the basis of a trafficking

charge. Denham used one of his own cell phones several times to negotiate the

sale of the diamond. Over the next few weeks Denham pawned or sold jewels and

jewelry stolen from Mallinak Designs at various jewelry and pawn shops and

purchased a new Range Rover with a large cash down payment. He also took to

1 Police later determined that an alarm went off at the jewelry store over the weekend, but the particular alarm system in place required two alarms before the police would be summoned. Two alarms were required to cut down on false alarms. 2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Denham, No. 98591-0

wearing “a huge blue stone gem necklace” that matched one taken in the burglary.

Clerk’s Papers (CP) at 6.

Meanwhile, Allan O’Neill, a Kirkland police detective, ran a search through

a database that tracked sales at pawn shops and saw Denham had been pawning

jewelry stolen from Mallinak Designs. Based on discussions with Frank Mallinak,

the shop operators, and one of Denham’s probation officers, Detective O’Neill

successfully applied for a search warrant for Denham’s registered address in

Tacoma. The original warrant application was very detailed about the burglary and

the sale of stolen jewels. Detective O’Neill also successfully sought authority to

seize the Range Rover and to seize and image cell phones for a later search.

Denham was not home when the warrant was served. Police found drawings

and schematics of safes, and new headlamps, one of which was missing a piece

similar to that found at Mallinak Designs. They also seized the Range Rover.

They did not find any cell phones.

After the search, the detective wrote an addendum to the warrant affidavit

seeking five months of records associated with two phone numbers Denham had

given to his probation officers and to the purchaser of the diamond. According to

the original affidavit, the purchaser of the diamond had reached Denham at one of

those numbers. The addendum sought subscriber information, payment details,

billing records, inbound and outbound call records, stored communications, stored

3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Denham, No. 98591-0

images, location data, physical addresses of cell towers used by the phones,

connection logs, and much more. The State acknowledges, correctly, that this was

overbroad both in time and scope. Both the original warrant application and the

addendum contained what appeared to be boilerplate language describing the role

of cell phones in people’s lives and the information that can be gleaned from the

phones and the phone records. The expanded warrant was granted.

The phone company’s records included cell site location information that

established multiple calls to or from Denham’s phone were relayed through a cell

phone tower that was about 550 feet from Mallinak’s store around the time of the

burglary. Denham lived in Tacoma, some distance away.

Denham was arrested and charged with second degree burglary and first

degree trafficking in stolen property. Prior to trial, the State sought to admit

recordings of two lengthy 2008 interviews with police where Denham discussed

sophisticated methods of breaking into safes. These interviews explored the

techniques Denham had previously used, including how he bypassed alarms, cut

through Sheetrock, cracked safes, and avoided leaving evidence. The State sought

to admit recordings of these interviews for identity, knowledge, and modus

operandi.

The trial court did “not admit[] the various bank robberies as 404(b), but

[did] admit[] the knowledge that [Denham] admitted to.” 3 Verbatim Tr. of

4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Denham, No. 98591-0

Proceedings (VTP) (Feb. 20, 2018) at 226. Specifically, the court admitted

Denham’s “admissions as to his skill set, which would make it possible for him to

do these burglaries.” Id. at 229.

Denham was convicted of second degree burglary and first degree

trafficking in stolen property at a bench trial. The trial judge specifically cited the

fact that Denham had made phone calls that were routed through the cell tower in

the parking lot of Mallinak Designs around the time of the burglary. She also cited

the lengthy interviews Denham had given on burglary techniques and his

specialized knowledge on burglary.

For the first time on appeal, Denham challenged the sufficiency of the nexus

between the cell phone and the crimes. The Court of Appeals found that the

question was appropriate for review under RAP 2.5(a)(3) and that the warrant

applications did not establish a sufficient nexus between the phone records and the

crime. State v. Denham, No. 78704-7-I, slip op. at 5, 13 (Wash. Ct. App. Apr. 27,

2020) (unpublished), https://www.courts.wa.gov/opinions/pdf/787047.pdf. The

Court of Appeals also held that despite the fact the trial judge rejected the State’s

attempt to admit the 2008 recordings for identity or modus operandi, it used the

recordings for that purpose without establishing that the crimes were specific

enough for those purposes. Id. at 17. It found the errors were not harmless and

reversed Denham’s convictions. Id. at 18. We granted review. The Washington

5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Denham, No. 98591-0

Association of Criminal Defense Lawyers, the American Civil Liberties Union of

Washington, the King County Department of Public Defense, and the Washington

Defender Association submitted an amici brief in support of Denham.

1. CELL PHONE RECORDS 2

Our constitutions protect individual privacy against state intrusion. U.S.

CONST. amend IV; WASH. CONST. art. I, § 7. State agents must have either the

authority of a warrant or a well-established exception to the warrant requirement to

lawfully intrude into an individual’s private affairs. State v. Ladson, 138 Wn.2d

343, 350, 979 P.2d 833 (1999) (quoting City of Seattle v. McCready, 123 Wn.2d

260, 273, 868 P.2d 134 (1994)). This constitutional protection extends to cell

phone location information held by cell phone companies. See State v.

Muhammad, 194 Wn.2d 577, 580, 451 P.3d 1060 (2019); Carpenter v. United

States, __ U.S. __, 138 S. Ct. 2206, 2220, 201 L. Ed. 2d 507 (2018). As the United

States Supreme Court observed, “[T]he time-stamped data provides an intimate

window into a person’s life, revealing not only his particular movements, but

2 The State properly concedes that the warrant was overbroad because there was no probable cause supporting the conclusion that evidence of a crime would be found in all of the categories of information listed. Suppl. Br. of Pet’r at 10 n.2. There is nothing in the affidavits that suggests billing records, pictures, or location data acquired after the charging period, for example, would be germane to any criminal activity. But Denham has not challenged the warrant as overbroad and does not contend that evidence seized under the overbroad portions of the warrant was admitted. If it had been, the remedy would have been suppression of any evidence seized due to the overbreadth. See State v. Perrone, 119 Wn.2d 538, 556, 834 P.2d 611 (1992) (citing United States v. Fitzgerald, 724 F.2d 633, 637 (8th Cir. 1983)). 6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Denham, No. 98591-0

through them his ‘familial, political, professional, religious, and sexual

associations.’” Carpenter, 138 S. Ct. at 2217 (quoting United States v. Jones, 565

U.S. 400, 415, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012) (Sotomayor, J.,

concurring)); see also Muhammad, 194 Wn.2d at 596 (Wiggins, J., lead opinion) &

612 (Gordon-McCloud, J., opinion)

Here, officers had a search warrant. Denham challenges the adequacy of the

affidavits supporting the application for that warrant. He contends the affidavits

were based on generalizations and did not establish that evidence of wrongdoing

would likely be found in his phone records.

“A search warrant should be issued only if the application shows probable

cause that the defendant is involved in criminal activity and that evidence of the

criminal activity will be found in the place to be searched.” State v. Neth, 165

Wn.2d 177, 182, 196 P.3d 658 (2008) (citing State v. Thein, 138 Wn.2d 133, 140,

977 P.2d 582 (1999)). There must be “a nexus between criminal activity and the

item to be seized and between that item and the place to be searched.” Id. at 183

(citing Thein, 138 Wn.2d at 140). The warrant must also describe with

particularity the place to be searched and the things to be seized. Perrone, 119

Wn.2d at 546-47 (citing U.S. CONST. amend IV). A trial judge’s decision to

authorize a search warrant is normally reviewed for abuse of discretion. Neth, 165

Wn.2d at 182 (citing State v. Maddox, 152 Wn.2d 499, 509, 98 P.3d 1199 (2004)).

7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Denham, No. 98591-0

“Although we defer to the magistrate’s determination, the trial court’s assessment

of probable cause is a legal conclusion we review de novo.” Id. (citing State v.

Chamberlin, 161 Wn.2d 30, 40-41, 162 P.3d 389 (2007)).

Search warrants may not be based only on generalizations. Instead,

our precedent requires probable cause be based on more than conclusory predictions. Blanket inferences of this kind substitute generalities for the required showing of reasonably specific “underlying circumstances” that establish evidence of illegal activity will likely be found in the place to be searched in any particular case. We reiterate that “[p]robable cause to believe that a man has committed a crime . . . does not necessarily give rise to probable cause to search his home.”

Thein, 138 Wn.2d at 147-48 (alterations in original) (quoting State v. Dalton, 73

Wn. App. 132, 140, 868 P.2d 873 (1994)); see also State v. Keodara, 191 Wn.

App. 305, 310, 316, 364 P.3d 777 (2015) (generalized statements that gang

members take inculpatory pictures of themselves not sufficient to search a

suspect’s seized telephone).

Denham contends that the search warrant affidavits supporting the seizure of

Denham’s phone records relied on the same sort of generalizations rejected in

Thein. We disagree.

These affidavits present reasonable grounds to believe that the phones

associated with the phone numbers belonged to Denham based on Denham’s own

use of the numbers with his probation officers and with various businesses, that

Denham had the phones around the time of the burglary because of specific facts

8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Denham, No. 98591-0

suggesting he had the phones days before and after the date in question, that

Denham burgled the store, and that Denham trafficked distinctive pieces stolen

from the store. They also allege that Denham had both phones at the time of the

burglary and used one to arrange the sale of the diamond that was the basis of the

trafficking charge. 3 Taken together, this is sufficient to raise a reasonable

inference that evidence of burglary would be found in the cell site location

information under Neth, 165 Wn.2d at 182 (citing Thein, 138 Wn.2d 140). The

fact that there are some generalizations in the inferential chain does not defeat the

reasonableness of the inference. 4

We find illustrative Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L.

Ed. 2d 527 (1983). In Gates, Illinois police had received an anonymous letter

accusing a couple of dealing drugs. Id. at 225. The letter contained a great deal of

specifics about the couple’s methodology. Id. Police surveilled the couple,

confirmed many of the seemingly innocuous details in the letter, and, based on

3 We respectfully disagree with the dissent that there is nothing in the affidavits linking the cell site location information to the crime. The warrant affidavits support an inference that Denham had at least one of the cell phones on him when he committed the burglary. CP at 437-38. That in turn supports an inference that evidence would be found in the cell site location information for the weekend of the burglary. 4 We also respectfully disagree with the dissent that this opinion overrules Thein. Thein remains good law and stands for the proposition that a search warrant cannot be based on generalizations about the supposed common habits of drug dealers. Thein, 138 Wn.2d at 147-48. There must be “a factual nexus between the evidence sought and the place to be searched.” Id. at 148 (citing State v. Olson, 73 Wn. App. 348, 357, 869 P.2d 110 (1994)). There was such a nexus between Denham’s location on the weekend of the burglary and his cell site location information. 9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Denham, No. 98591-0

both the letter and the investigation, successfully applied for a warrant to search

the couple’s car. Id. at 225-26. The United States Supreme Court affirmed. While

it suggested the anonymous letter alone would likely not be enough, the totality of

the circumstances created probable cause to believe evidence of a crime would be

found in the car. Id. at 227, 230. It observed:

“In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” [Brinegar v. United States, 338 U.S. 160], 175[, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949)]. Our observation in United States v. Cortez, 449 U.S. 411, 418[, 101 S. Ct. 690, 66 L. Ed. 2d 621] (1981), regarding “particularized suspicion,” is also applicable to the probable cause standard:

“The process [of determining the existence of probable cause] does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same—and so are law enforcement officers.”

Gates, 462 U.S. at 231-32 (first alteration in original).

The judge did not abuse her discretion in approving the warrant. Reading

the affidavits as a whole, the judge could reasonably infer that evidence of the

burglary would be found in Denham’s cell site location information. While we do

not countenance how overbroad this warrant was, no overbreadth challenge is

before us, and nothing in the trial judge’s findings of fact suggests she relied on

10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Denham, No. 98591-0

evidence seized under overbroad portions of the warrant. 5 The phone records were

not improperly used to show Denham’s associations, pictures, musical tastes, or

the content of his communications. See State v. Juarez DeLeon, 185 Wn.2d 478,

489, 374 P.3d 95 (2016) (admission of music found on cell phone to show gang

affiliation improper).6 Accordingly, we reverse the Court of Appeals.

2. PRIOR BAD ACTS

The trial court admitted two video recordings of interviews with Denham

that established he had the sort of sophisticated knowledge about how to bypass

alarms and drill into safes that would have been required to commit this burglary.

Denham argues that the recordings were not properly admitted because knowledge

of sophisticated burglary techniques is not an element of either burglary or

trafficking.

5 If it was properly before us, we might be inclined to agree with our dissenting colleague that the admission of evidence that most of Denham’s calls were relayed through the cell tower closest to his Tacoma residence was error. See 8 VTP (Mar. 29, 2018) at 638. Denham, however, has not brought this challenge, perhaps because the trial judge did not mention the fact in her oral ruling and the written rulings (prepared by the prosecutor’s office) did not make it a central fact but simply one of 39 findings of fact. CP at 319-23. 6 Amici contend that cell phones and cell phone records often contain material that is protected by the First Amendment and ask us to impose the scrupulous exactitude standard used for warrants on warrants seeking to seize such material. Items presumptively entitled to First Amendment protection must be described with exacting scrutiny in warrants. Perrone, 119 Wn.2d at 550 (citing United States v. Hale, 784 F.2d 1465, 1469 (9th Cir. 1986)); see also Charles W. Johnson & Debra L. Stephens, Survey of Washington Search and Seizure Law: 2019 Update, 42 SEATTLE U. L. REV. 1277, 1362 (2019). But given that Denham has not challenged the warrant on this ground, the record and argument for extending the scrupulous exactitude standard has not been developed. We decline to consider it here and await a case where it is more fully presented. 11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Denham, No. 98591-0

“Under ER 404(b) evidence of other crimes, wrongs, or acts is

presumptively inadmissible to prove character and show action in conformity

therewith.” State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995) (citing

Carson v. Fine, 123 Wn.2d 206, 221, 867 P.2d 610 (1994)). However, “such

evidence may be admissible for other purposes ‘such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake

or accident.’” Id. (quoting ER 404(b)). Specifically,

[t]o admit evidence of other crimes or wrongs under Washington law, the trial court must (1) identify the purpose for which the evidence is sought to be introduced, (2) determine whether the evidence is relevant to prove an element of the crime charged and (3) weigh the probative value of the evidence against its prejudicial effect. Additionally, the party offering the evidence of prior misconduct has the burden of proving by a preponderance of the evidence that the misconduct actually occurred.

State v. Lough, 125 Wn.2d 847, 853, 889 P.2d 487 (1995) (footnote omitted)

(citing State v. Dennison, 115 Wn.2d 609, 628, 801 P.2d 193 (1990); State v. Benn,

120 Wn.2d 631, 653, 845 P.2d 289 (1993)). Evidence is relevant if it makes a fact

of consequence more probable. Powell, 126 Wn.2d at 259 (citing Dennison, 115

Wn.2d at 628). A trial court’s decision to admit evidence of prior bad acts is

reviewed for abuse of discretion. Id. at 258 (citing Washburn v. Beatt Equip. Co.,

120 Wn.2d 246, 283, 840 P.2d 860 (1992)).

The trial judge properly declined to admit these videos for identity or modus

operandi. Evidence of prior bad acts admitted for modus operandi or identity

12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Denham, No. 98591-0

“must be so unique that mere proof that an accused acted in a certain way at a

certain time creates a high probability that he also committed the act charged.”

State v. Coe, 101 Wn.2d 772, 777, 684 P.2d 668 (1984) (citing United States v.

Silva, 580 F.2d 144, 148 (5th Cir. 1978)). ‘“The device used must be so unusual

and distinctive as to be like a signature.’” Id. (quoting MCCORMICK ON EVIDENCE

§ 190, at 449 (Edward W. Cleary ed., 2d ed. 1972)). Nothing in this record

suggests that entering through a roof hatch, disabling alarms, or drilling through

safes are particularly unusual or distinctive.

Denham analogizes this case to Powell. Powell considered whether the trial

court erred in admitting prior spousal assaults, including attempts to strangle the

victim, in a murder case where the victim was strangled to death. 126 Wn.2d at

247-48. This court found that much of the evidence was properly admitted to show

motive. Id. at 260. We found, however, that the prior bad acts were not admissible

to show intent because intent was not a disputed issue. “Proof of the act of manual

strangulation as well as the other evidence presented in this case established an

intent to kill. Thus, intent is implicit in the doing of the act. The trial court erred

in admitting evidence on this basis.” Id. at 262.

But in Powell, the question was whether the probative value of highly

inflammatory evidence (including prior assaults on the same victim) outweighed

its prejudicial effect in the context of the mens rea element. Here, this evidence

13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Denham, No. 98591-0

was not offered to establish mens rea. The fact Denham had the skills to pull off a

sophisticated burglary has some tendency to make a fact of consequence—that he

did commit this sophisticated burglary—considerably more likely.

We recognize that narrowly read, our case law sometimes suggests that prior

bad act evidence has to be relevant to an element of the crime charged and

sometimes that it merely has to make a fact of consequence more likely. Compare

Powell, 126 Wn.2d at 258, with State v. Vy Thang, 145 Wn.2d 630, 642, 41 P.3d

1159 (2002). That appears to be an artifact of the way the issues were presented

in the individual cases. Evidence is relevant if it makes a fact of consequence

more likely. That is not limited to specific elements.

We hold that the trial court did not abuse its discretion in admitting these

videos. They tended to make a fact of consequence more likely, and they were not

so inflammatory that their prejudicial effect outweighed their probative value.

CONCLUSION

We hold that the warrant application contained sufficient detail to conclude

that evidence of a crime would more likely than not be found in the cell site

location information in telephone company records of Denham’s cell phones and

that the video recordings were properly admitted. Accordingly, we reverse the

Court of Appeals and affirm Denham’s convictions.

14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Denham, No. 98591-0

____________________________

WE CONCUR:

_____________________________ ____________________________

15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Denham (Lynell Avery) Whitener, J., dissenting

No. 98591-0

WHITENER, J. (dissenting)—Historical cell site location information (CSLI)

is protected by article I, section 7 of our constitution and the Fourth Amendment of

the United States Constitution. State v. Muhammad, 194 Wn.2d 577, 580, 451 P.3d

1060 (2019) (Wiggins, J., lead opinion), 628 (Gordon McCloud, J., opinion);

Carpenter v. United States, ___ U.S. ___, 138 S. Ct. 2206, 2220, 201 L. Ed. 2d 507

(2018). Any search of CSLI violates article I, section 7 absent authority of law and

violates the Fourth Amendment when it is unreasonable; both requirements are

satisfied by a valid warrant. State v. Olsen, 189 Wn.2d 118, 126, 399 P.3d 1141

(2017); Carpenter, 138 S. Ct. at 2221.

“The warrant requirement is not a mere formality; it ensures that necessary

judgment calls are made ‘by a neutral and detached magistrate,’ not ‘by the officer

engaged in the often competitive enterprise of ferreting out crime.’” Mitchell v.

Wisconsin, __ U.S. __, 139 S. Ct. 2525, 2543, 204 L. Ed. 2d 1040 (2019) (internal

quotation marks omitted) (quoting Schmerber v. California, 384 U.S. 757, 770, 86

S. Ct. 1826, 16 L. Ed. 2d 908 (1966)). This holds truer still in Washington state,

where “[w]e have repeatedly recognized that the[ ] ‘privacy protections [provided For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Denham (Lynell Avery), No. 98591-0 Whitener, J., dissenting

by article I, section 7 of our constitution] are more extensive than those provided

under the Fourth Amendment.’” State v. Peck, 194 Wn.2d 148, 169, 449 P.3d 235

(2019) (quoting State v. Valdez, 167 Wn.2d 761, 772, 224 P.3d 751 (2009)). For a

warrant to properly issue in Washington, we have long required that warrant

applications demonstrate specific factual nexus between the alleged criminal activity

and the target of a search. State v. Thein, 138 Wn.2d 133, 140, 147-48, 977 P.2d 582

(1999).

Today, the majority upholds the issuance of a warrant to search CSLI based

on the assumption that cell phone owners typically keep their phones on them at all

times. Under this rule, it appears that the only facts needed to support a warrant for

a search of CSLI are that someone owned a cell phone and that there is probable

cause to believe that they committed a crime around the time they owned that phone.

With this rule in place, a warrant to search CSLI issues almost automatically,

transforming the warrant requirement into a “mere formality,” Mitchell, 139 S. Ct.

at 2543, and making cell phones into “‘24-hour’ surveillance tool[s].” Muhammad,

194 Wn.2d at 585 (Wiggins, J., lead opinion). Such limited protection is not what

the state and federal constitutions demand.

Precedent requires the opposite conclusion. In Lynell Avery Denham’s case,

the affidavits supporting the application for the warrant lacked probable cause to

search the CSLI because they lacked the required nexus between the crime of

2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Denham (Lynell Avery), No. 98591-0 Whitener, J., dissenting

burglary and the CSLI—or, indeed, between burglary and the cell phones

themselves. The affidavits instead dealt only in generalities and lacked particularity

and, thus, were insufficient to establish probable cause. See Thein, 138 Wn.2d at

147-48. The search therefore violated article I, section 7 and the Fourth Amendment.

Allowing this evidence in was not harmless; I therefore would affirm the Court of

Appeals in part: we must vacate Denham’s convictions and remand for a new trial

with the CSLI evidence suppressed.1

ANALYSIS

The privacy concerns posed by cell phones emerged as the technology

developed over the past decades. When the first cell phones were introduced to the

public, in the 1980s, they were expensive and ungainly. Kimberly L. Rhodes & Brian

Kunis, Walking the Wire in the Wireless World: Legal and Policy Implications of

Mobile Computing, 16 J. TECH. L. & POL’Y 25, 27. (2011). It took further decades of

innovations, including the introduction of e-mail and other online connectivity, for

cell phones to become the items they are now. See id. at 28-29. Today, cell phones

are ubiquitous. Muhammad, 194 Wn.2d at 584 (Wiggins, J., lead opinion). When the

Carpenter decision published, in 2018, there were “396 million cell phone service

accounts in the United States—for a Nation of 326 million people.” 138 S. Ct. at

1 I agree with the majority as to Part II of its opinion. Nevertheless, I would vacate the trial verdict and remand for a new trial with the CSLI suppressed for reasons discussed below.

3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Denham (Lynell Avery), No. 98591-0 Whitener, J., dissenting

2211. Their modern functions pose great threats to constitutional privacy. See

Muhammad, 194 Wn.2d at 584 (Wiggins, J., lead opinion). “Of particular concern

is a phone’s ability to operate as a ‘24-hour’ surveillance tool, collecting and

transmitting information about the location of the phone and its user.” Id. at 584-85.

“‘Cell phones continuously scan their environment looking for the best signal, which

generally comes from the closest cell site. Most modern devices, such as

smartphones, tap into the wireless network several times a minute whenever their

signal is on, even if the owner is not using one of the phone’s features. Each time

the phone connects to a cell site, it generates a time-stamped record known as cell-

site location information (CSLI).’” Id. at 585 (quoting Carpenter, 138 S. Ct. at

2211).

In this case, historical CSLI, obtained via warrant, was used at trial to show

that Denham was in the vicinity of Mallinak Designs Jewelers the night it was

burglarized. Under the rules set forth in our precedent, the CSLI was improperly

admitted because the application for the warrant dealt in generalities, lacking

particularized facts. Additionally, the warrant was overbroad because it sought CSLI

for months after the date of the crime. These errors were not harmless and demand

vacation of the trial verdict.

4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Denham (Lynell Avery), No. 98591-0 Whitener, J., dissenting

I. The trial verdict must be vacated because of the lack of nexus between the CSLI and the crime

A. The CSLI was improperly admitted

A search warrant must be based on probable cause. Thein, 138 Wn.2d at 140.

“An application for a warrant must state the underlying facts and circumstances on

which it is based in order to facilitate a detached and independent evaluation of the

evidence by the issuing magistrate.” Id. “Probable cause exists if the affidavit in

support of the warrant sets forth facts and circumstances sufficient to establish a

reasonable inference that the defendant is probably involved in criminal activity and

that evidence of the crime can be found at the place to be searched.” Id.

“Accordingly, ‘probable cause requires a nexus between criminal activity and the

item to be seized, and also a nexus between the item to be seized and the place to be

searched.’” Id. (quoting State v. Goble, 88 Wn. App. 503, 509, 945 P.2d 263 (1997)).

“Although we defer to the magistrate’s determination, the trial court’s assessment of

probable cause is a legal conclusion we review de novo.” State v. Neth, 165 Wn.2d

177, 182, 196 P.3d 658 (2008).

Warrant applications must contain a “sufficient basis in fact from which to

conclude [that] evidence of illegal activity will likely be found at the place to be

searched.” Thein, 138 Wn.2d at 147. Without a sufficient basis in fact, “a reasonable

nexus is not established as a matter of law,” rendering the warrant invalid. Id. Thus

“probable cause [must] be based on more than conclusory predictions,” and there is

5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Denham (Lynell Avery), No. 98591-0 Whitener, J., dissenting

a “required showing of reasonably specific ‘underlying circumstances’ that establish

evidence of illegal activity will likely be found in the place to be searched in any

particular case.” Id. at 147-48.

Nexus is absent here due to a lack of sufficient specific basis in fact necessary

to conclude that there was a connection between the CSLI and Denham’s crime. At

no point in the affidavit in support of the warrant, or its supplement, can be found

any factual statement linking the CSLI to the crime. Specific references to Denham’s

cell phones and his usage of them are scant. We are told that Denham gave his phone

number to a man to whom he was trying to sell some (allegedly stolen) jewelry—

but that says nothing about his having the phone on him at the time of the crime.

Suppl. Clerk’s Papers (CP) at 421. We learn that in “prior arrests of Denham, he

used two way radios to communicate with other suspects during the commission of

his crimes,” and that “cellular phones being easier to obtain and Denham having two

cellular phones, . . . evidence of the above listed crimes may be on his cellular

phones.” Id. at 423-24. It goes without saying that two-way radios, harder to obtain

or not, are not cell phones. His prior use of two-way radios better supports the

inference that Denham would use radios instead of cell phones, not an inference that

he used a cell phone during the crime.

The applications also contain boilerplate language regarding cell phone

location data, which discusses at length the commonly known fact that people have

6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Denham (Lynell Avery), No. 98591-0 Whitener, J., dissenting

cell phones on their persons often and that therefore the location data can be used to

determine where a person was when a particular crime was committed. Id. at 424.

This boilerplate language repeats, in slightly expanded form, in the addendum to the

application for the search warrant, where it discusses how CSLI is tracked by cell

phone towers. Id. at 439.

Nothing in the applications for the warrant provides nexus between the

information sought and the thing to be searched. We know only that Denham may

have committed a crime, owns cell phones, that cell phones track location data, and

that people often keep their cell phones nearby. “Blanket inferences of this kind

substitute generalities for the required showing of reasonably specific ‘underlying

circumstances’” and cannot establish probable cause in this case. Thein, 138 Wn.2d

at 147-48.

Yet the only way to conclude from the affidavits that the CSLI was linked to

the crime is to make use of just such “blanket inferences,” to rely on “broad

generalizations”—that is, to revive the very arguments we rejected in Thein. Id. at

148-49. That is precisely the path the majority takes. It asserts that “[r]eading the

affidavits as a whole, the judge could reasonably infer that evidence of the burglary

would be found in Denham’s cell site location information.” Majority at 10. It cites

the fact that Denham provided the phone numbers to various businesses to show he

owned the phones. Id. at 9. It invokes “specific facts suggesting he had the phones

7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Denham (Lynell Avery), No. 98591-0 Whitener, J., dissenting

days before and after the date in question.” Id. at 8-9. However, there appears to be

only the somewhat general fact of Denham’s providing his phone numbers to his

probation officers—without any indication of when this happened, when these

phones were used or when he actually possessed the phones—and his giving a

number to one of the jewelry store owners, though the affidavit is unclear about what

number this is. Suppl. CP at 421, 423. In sum, the information the majority relies on

establishes only that around the time of the crime, Denham had cell phones—like

many people in the second decade of the 21st century. The majority fails to link

them, and the CSLI, to the crime.

The majority’s troubling reasoning is applicable to more than cell phones.

Providing no limiting principle, the majority not only permits search of cell phone

location data based on generalities, it opens the door to basing any search warrant

on generalities. Indeed, the majority makes this consequence of its opinion explicit.

The majority asserts that Thein merely held “that a search warrant cannot be based

on generalizations about the supposed common habits of drug dealers.” Majority at

9 n.4 (emphasis added). But Thein was not limited to generalizations about drug

dealers; it dealt with generalizations in any circumstance. 138 Wn.2d at 148-49. It

commands that “[a]lthough common sense and experience inform the inferences

reasonably to be drawn from the facts, broad generalizations do not alone establish

probable cause.” Id. By holding that probable cause for a search warrant can be

8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Denham (Lynell Avery), No. 98591-0 Whitener, J., dissenting

shown through such generalizations—except, apparently, in the case of drug

dealers—the majority effectively overrules Thein.

Thein itself was nearly identical to this case. Were the majority to follow

Thein, it would be precluded from reaching its current outcome. In Thein, the police

submitted affidavits to obtain a search warrant of Thein’s residence; the warrant

issued. 138 Wn.2d at 139-40. The affidavits “contained generalized statements of

belief regarding the common habits of drug dealers.” Id. at 138. These “generalized

statements of belief” were, in substance and form, essentially the same as the

generalized statements regarding criminals and their use of cell phones in this case.

Id. They read:

“Based on my experience and training, as well as the corporate knowledge and experience of other fellow law enforcement officers, I am aware that it is generally a common practice for drug traffickers to store at least a portion of their drug inventory and drug related paraphernalia in their common residences. It is generally a common practice for drug traffickers to maintain in their residences records relating to drug trafficking activities, including records maintained on personal computers. Because drug traffickers will in many instances ‘front’ (i.e., sell on consignment) controlled substances in full or partial quantities to their distributors or from their suppliers, such record keeping is necessary to keep track of amounts paid and owed. These records will also be maintained close at hand so as to readily ascertain current balances. Telephone/address listings of clients must be maintained and immediately available in order to efficiently conduct their drug trafficking business. Moreover, it is generally a common practice for traffickers to conceal at their residences large sums of money, either the proceeds of drug sales or to utilized [sic] to purchase controlled substances. In this vein, drug traffickers typically make use of currency, wire transfers, cashiers checks and money orders to pay 9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Denham (Lynell Avery), No. 98591-0 Whitener, J., dissenting

for controlled substances. Evidence of such financial transactions and records related to incoming expenditures of money and wealth in connection with drug trafficking would also typically be maintained in residences.

“I know from previous training and experiences that it is common practice for drug traffickers to maintain firearms, other weapons and ammunition in their residences for the purpose of protecting their drug inventory and drug proceeds[.] I am aware from my own experience and training that it is common practice for [sic] from law enforcement, but more commonly, from other drug traffickers who may attempt to ‘rip them off.’ Firearms and ammunition have been recovered in the majority of residence searches in the drug investigations in which I have been involved.”

Id. at 138-39 (alterations in original) (quoting record). It was these generalizations,

combined with information indicating that Thein was involved with drug dealing

and that Thein had a residence, that the police used to apply for and obtain a search

warrant of Thein’s residence. Id. at 139.

The information supporting the search warrant here was essentially the

same—with cell phones replacing residences:

Through experience and training, I know that cellular service providers, routinely, in the regular course of business, collect and retain information related to their customer/subscriber accounts, for purposes of billing; for diagnostic and maintenance reasons; for managing traffic on their equipment; and for fraud detection and prevention. Telephone service providers also maintain records identifying related accounts or phone numbers, such as when an account uses multiple telephones, or a person uses multiple accounts. The information collected and maintained includes data related to subscriber information, account registration, credit information, billing and airtime records, outbound and inbound call/communication detail, location information for the device (derived from signals to and from the device via cellular phone towers and/or satellite), per call measurement data (PCMD), connection

10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Denham (Lynell Avery), No. 98591-0 Whitener, J., dissenting

time and dates, Internet routing information (Internet Protocol numbers), and message content, that may assist in the identification of person/s accessing and utilizing the account; and the identification of other persons who are associated with the person accessing the account and who may be witnesses or conspirators, or that may in other ways be evidence of or pertain to the above-listed crime(s). Cellular telephone providers routinely store email and voice mail messages in company servers, at least until the message has been retrieved by its intended recipient. Some cellular telephone service providers also provide “cloud storage” space for customers who want to save SMS [short message service], pictures, and the like. Cellular telephone service providers typically retain all records for their customer accounts for the life of the account, and most retain records regarding the account for some time after an account is closed.

I know from training and experience that people own cellular telephones and other portable electronic devices for the purpose of being able to use them wherever they are, and as such carry them virtually constantly, or are nearly always within the near vicinity of their cell phones and/or portable devices, Based on my experience, those involved in criminal enterprises sometimes will use multiple phones in the commission of crimes, to facilitate criminal activity, and/or to avoid detection by law enforcement. They also sometimes possess multiple phones to have a secondary means of communication if a phone is lost or seized by law enforcement. I also know through my training and experience that criminals also use cellular phones to document criminal activities through photographs, videos, and digital or voice memos, and that these cellular telephone users share this data with others by sending it via one of the many ways that cellular telephones can be used. For example, communication between suspects and other involved parties or witnesses can occur through typical cellular phone calls, instant messaging, text messages, chat sessions, email, and social networking websites. These communications can reveal evidence and/or facts pertaining to the above-listed crimes.

When a cellular telephone or other electronic device is turned on to register its availability to receive communications on the network, or when the device actually sends or receives communications, it will communicate with a cell tower or satellite within its radio frequency range. Cellular service providers maintain data that can be used to

11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Denham (Lynell Avery), No. 98591-0 Whitener, J., dissenting

generally locate a cellular telephone at a particular point in time. These include cell site maps, per call measurement data, and/or signal testing results for their networks, including round trip signal testing data, that show the geographical location of all cell sites within its service area. Using the cell site geographical information or GPS information, officers would be able to determine the physical location of the individual using a particular cellular telephone. Some cell phones or other electronic communication devices additionally communicate their physical location, in precise terms (such as longitude and latitude), to the provider via global positioning system (“GPS”) satellite or multilateration (e.g. triangulated signals off three or more towers) measurements that are shared with or accessible to the provider owing to software settings and terms of service (TOS) agreements. This information is often evidence of or pertaining to criminal activity in that it enables law enforcement to locate a suspect at the time of a crime, either at or away from a crime scene, and can be used to assist and corroborate surveillance officers’ observations and anticipate future movements and locations of the suspect and/or his or her criminal associates, by establishing his or her communication and location habit patterns over time. For example, if the telephone consistently signals the same tower both late at night and in the early morning hours, it is reasonable to conclude that the suspect is living, sleeping, hiding or working at a night job in that vicinity.

Suppl. CP at 438-39. It was these generalizations, alongside the suspicion that

Denham burglarized the jewelry store and the fact that Denham owned cell phones,

that supported the application for the warrant for the CSLI. In other words, the

application for the warrant had the same form and structure as the application for the

warrant in Thein.

In Thein, as noted above, we held that the “generalized statements contained

in the affidavits in this case were, standing alone, insufficient to establish probable

cause to search Thein’s . . . residence.” 138 Wn.2d at 148. We specifically disagreed

12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Denham (Lynell Avery), No. 98591-0 Whitener, J., dissenting

with the opposite conclusion reached by the Court of Appeals, characterizing it as

“a generalized conclusion that drug dealers are likely to keep evidence of illegal drug

dealing in their homes.” Id. at 150. Just as in Thein, the affidavits here lack anything

actually tying the cell phones to the crime beyond generalizations. Thus, we must

follow the precedent set by Thein rather than discard it, as the majority does. Indeed,

the majority does not just discard Thein: it presents essentially the same argument

we rejected in Thein, with minor modifications: “that a nexus is established between

the items . . . to be searched where there is sufficient evidence to believe a suspect

is probably involved in [criminal activity] and the suspect [owns] . . . the [phone] to

be searched.” Thein, 138 Wn.2d at 141. We rejected this decades ago, and so should

we reject it today.

Perhaps out of necessity—as Thein so clearly demands affirming the Court of

Appeals—the majority relies not on Thein but on a United States Supreme Court

case, Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), to

reach the opposite conclusion. Gates, however, is almost entirely inapposite. In

Gates, the police “received by mail an anonymous handwritten letter” regarding the

purported drug dealing of Gates and his wife. Id. at 225. The letter contained highly

specific details describing the next time the couple would obtain drugs from Florida

and drive them back to Illinois. Id. The police pursued this lead. Id. at 225-26.

13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Denham (Lynell Avery), No. 98591-0 Whitener, J., dissenting

Through various investigations and observations, the police confirmed the contents

of the letter. Id. at 226-27.

The Supreme Court noted that the letter alone would likely not have been

enough to establish probable cause. Id. at 227. However, applying a totality of the

circumstances test, the Court held that there was probable cause, between the

anonymous letter and the affidavit describing investigations that corroborated the

contents of the letter, to obtain the search warrant. Id. at 241-46.

What Gates has to say about generalized statements in warrants is a mystery.

After all, Gates concerns corroborating an anonymous tip, a situation not before the

court today. Nor does Gates have anything to say about cell phones—it cannot, given

that Gates was decided in 1983, the same year that cell phones became publicly

available in the United States. Rhodes & Kunis, supra, at 27. Gates, applied here,

does not help the majority reach the result it prefers. Instead, the majority’s reliance

on Gates only furthers the evisceration of our precedent.

B. This error was not harmless

Admitting the CSLI evidence was not harmless. “[I]f trial error is of

constitutional magnitude, prejudice is presumed and the State bears the burden of

proving it was harmless beyond a reasonable doubt.” State v. Coristine, 177 Wn.2d

370, 380, 300 P.3d 400 (2013). “A constitutional error is harmless if ‘it appears

beyond a reasonable doubt that the error complained of did not contribute to the

14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Denham (Lynell Avery), No. 98591-0 Whitener, J., dissenting

verdict obtained.’” State v. A.M., 194 Wn.2d 33, 41, 448 P.3d 35 (2019) (internal

quotation marks omitted) (quoting State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889

(2002)). Thus, “‘[a]n error is not harmless beyond a reasonable doubt where there is

a reasonable probability that the outcome of the trial would have been different had

the error not occurred.’” Id. (quoting State v. Powell, 126 Wn.2d 244, 267, 893 P.2d

615 (1995)). “‘A reasonable probability exists when confidence in the outcome of

the trial is undermined.’” Id. (quoting Powell, 126 Wn.2d at 267).

The CSLI evidence should have been suppressed because it was obtained in

violation of the state constitution. See, e.g., State v. Schultz, 170 Wn.2d 746, 760 n.6,

248 P.3d 484 (2011) (discussing suppression for violations of article I, section 7 of

the state constitution). The question therefore becomes whether, absent the CSLI, is

there a “‘reasonable probability that the outcome of the trial would have been

different had’” that evidence not been admitted? A.M., 194 Wn.2d at 41 (quoting

Powell, 126 Wn.2d at 267).

The answer is yes. Without the CSLI, there is almost no evidence linking

Denham to the scene of the crime and, thus, to the crime itself. Without it, we are

left with the following: headlamps found at Denham’s residence that trial testimony

indicated was “basically an exact match to the plastic cap that was found in Mr.

Mallinak’s jewelry store,” 10 Verbatim Tr. of Proceedings (VTP) (April 3, 2018) at

930-31; photos of items found in Denham’s residence, including wire crimpers,

15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Denham (Lynell Avery), No. 98591-0 Whitener, J., dissenting

cutting oil, drawings of electrical schematics and safes’ locking mechanisms,

devices to see through drilled holes, and books about electronics, id. at 941-46; and

Denham’s prior statements, from years before, about various burglary methods

similar to the one employed in this crime. That is not enough to conclude beyond a

reasonable doubt that the trial outcome would have been the same. See A.M., 194

Wn.2d at 41.

Denham did possess stolen property from the jewelry store. But “proof of

possession of recently stolen property, unless accompanied by other evidence of

guilt, is not prima facie evidence of burglary.” State v. Mace, 97 Wn.2d 840, 843,

650 P.2d 217 (1982). Such other evidence includes “flight or the presence of the

accused near the scene of the crime.” Id. It is precisely such evidence that is absent

without the CSLI. Nothing else connects Denham to the crime directly. No usable

prints of his or any DNA determined to belong to him were found at the crime scene.

10 VTP (Apr. 3, 2018) at 952-53. There was simply an array of items and facts that

loosely connect Denham to the crime—but only loosely. Indeed, the CSLI was

crucial to the trial court’s finding Denham guilty of second degree burglary. CP at

322-23. Without the CSLI, there is a reasonable probability that the trial outcome

would have been different. See A.M., 194 Wn.2d at 41.

But for this error, Denham’s conviction for first degree trafficking cannot be

affirmed, either. Although much of the evidence for this charge came from

16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Denham (Lynell Avery), No. 98591-0 Whitener, J., dissenting

elsewhere, crucial to the trial court’s conclusion that Denham knew the property was

stolen was that “he was the one who stole it.” CP at 323. Without the CSLI, the

finding that Denham was the burglar cannot stand—and neither can the conclusion

that Denham was guilty of first degree trafficking. See A.M., 194 Wn.2d at 41.

II. The overbreadth of the warrant also demands vacating the trial verdict

Vacating the trial verdict is also necessary because of the overbreadth of the

warrant. Law enforcement sought CSLI for a vast amount of time: from November

11, 2016— around when the burglary occurred—until the present date of the warrant

application, April 20, 2017. Suppl. CP at 441-42. This warrant, which retroactively

surveilled Denham for months after the robbery, was overbroad. See Thein, 138

Wn.2d at 149 (“General, exploratory searches are unreasonable, unauthorized, and

invalid.”); State v. Riley, 121 Wn.2d 22, 28, 846 P.2d 1365 (1993) (holding a warrant

that “permitted the seizure of broad categories of material and was not limited by

reference to any specific criminal activity . . . was overbroad and invalid”).

When the warrant was issued for this search, the fears articulated by the

United States Supreme Court regarding historical CSLI were realized: Denham’s

phone was transformed into a device that provided the State with his constant

whereabouts for months at a time, without a constitutional basis to do so. See

Carpenter 138 S. Ct. at 2218 (“[W]hen the Government tracks the location of a cell

17 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Denham (Lynell Avery), No. 98591-0 Whitener, J., dissenting

phone it achieves near perfect surveillance, as if it had attached an ankle monitor to

the phone’s user.”).

The majority notes that “[t]he State properly concedes that the warrant was

overbroad because there was no probable cause supporting the conclusion that

evidence of a crime would be found in all of the categories of information listed.”

Majority at 6 n.2. Such overbroad material includes the— “location data acquired

after the charging period.” Id. Indeed, the majority even notes that any evidence

admitted from the overbroad portions of the warrant should have been suppressed.

Id. Yet the majority treats this as irrelevant, instead, asserting that “nothing in the

trial judge’s findings of fact suggests she relied on evidence seized under overbroad

portions of the warrant.” Majority at 10-11. Not so. The majority fails to

acknowledge that CSLI drawn from outside the charging period 2—obtained based

on the overbroad portions of the warrant application—was central to the trial court’s

conclusion that Denham committed the burglary. The trial court specifically noted

that “[a]ccording to the records, the phone had never utilized any other towers in

Kirkland at any time during those months” for which CSLI was obtained. CP at 322

(emphasis added); see also 8 VTP (Mar. 29, 2018) at 638 (noting that the “most

frequently used [cell phone] tower” was “in Tacoma . . . within a mile of the Denham

2 The charging period for burglary was November 11 through November 14, 2016; for trafficking, the period was November 15 through November 19, 2016. CP at 1.

18 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Denham (Lynell Avery), No. 98591-0 Whitener, J., dissenting

residence”). It thus cannot be said that “nothing in the trial judge’s findings of fact

suggests she relied on evidence seized under overbroad portions of the warrant,” as

the majority claims. Majority at 10-11 (emphasis added).

Admission of this information was not harmless, due to the trial court’s

reliance on it to reach its verdict. See A.M., 194 Wn.2d at 41. As noted, “‘[a]n error

is not harmless beyond a reasonable doubt where there is a reasonable probability

that the outcome of the trial would have been different had the error not occurred.’”

Id. (quoting Powell, 126 Wn.2d at 267). “‘A reasonable probability exists when

confidence in the outcome of the trial is undermined.’” Id. (quoting Powell, 126

Wn.2d at 267). Here, confidence in the outcome of the trial is undermined because

the trial court relied on evidence obtained by the overbroad warrant to find Denham

guilty of burglary. It follows that there is a reasonable probability that the trial

outcome would have been different without the overbroad warrant, meaning that the

admission of evidence based on the overbroad warrant was not harmless beyond a

reasonable doubt. See id.

For this reason as well, we should affirm the Court of Appeals, vacating the

trial verdict and remanding for a new trial with the direction to suppress the CSLI

evidence obtained by the overbroad warrant. 3

3 While the majority declines to reach this issue in part on the ground that Denham did not raise it, it seems strange to refrain from doing so, especially when, as the majority notes,

19 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Denham (Lynell Avery), No. 98591-0 Whitener, J., dissenting

The Supreme Court has made clear that it “is obligated[,] as ‘[s]ubtler and

more far-reaching means of invading privacy have become available to the

Government[,]’ to ensure that the ‘progress of science’ does not erode Fourth

Amendment protections.” Carpenter, 138 S. Ct. at 2223 (quoting Olmstead v. United

States, 277 U.S. 438, 473-74, 48 S. Ct. 564, 72 L. Ed. 944 (1928) (Brandeis, J.,

dissenting), overruled in part by Katz v. United States, 389 U.S. 347, 88 S. Ct. 507,

19 L. Ed. 2d 576 (1967)). So, too, are we. As more and more people use increasingly

advanced technology that tracks their every movement in an “inescapable and

automatic” manner, we must not let our protections against governmental intrusion

into individuals’ privacy slacken. Id. Yet the majority risks just that: merely because

Denham had cell phones, and merely because cell phones track location information,

the majority holds that the issuance of the warrant for the CSLI was proper. Our

precedent does not permit warrants to issue based on such generalities. Nor does it

permit issuance of warrants with so broad of a reach.

We should affirm the Court of Appeals with respect to the improper admission

of the CSLI and remand for a new trial with the CSLI evidence suppressed.

the State itself conceded that these portions of the warrant were overbroad. Majority at 4, 6 n.2; see also Wash. Supreme Court oral argument, State v. Denham, No. 98591-0 (Jan. 21, 2021), at 17 min., 24 sec., video recording by TVW, Washington State’s Public Affairs Network, www.tvw.org (State appearing to concede this point).

20 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Denham (Lynell Avery), No. 98591-0 Whitener, J., dissenting

I respectfully dissent.