State v. Ollivier

• Court: Washington Supreme Court
• Decided: October 31, 2013
• Docket: 86633-3
• Status: Published

Opinion

/FI~E- IN CLERKS OFFICE llJIR!ME COURT, STATE OF WASHING1QN OCT g ·; 2013 ~....--- Ronald R. Carpenter §upreme Court Clerk

j SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) ) No. 86633-3 Respondent, ) ) v. ) EnBanc ) BRANDON GENE OLLIVIER, ) ) Petitioner. ) Filed OCT 3 ~. 20'13 )

MADSEN, C.J.-Brandon Ollivier contends that his rights to a speedy trial under

CrR 3.3, the Sixth Amendment to the United States Constitution, and article I, section 22

of the Washington State Constitution were violated by delay in bringing him to trial. He

also maintains that evidence obtained in a search of his apartment must be suppressed

because of misrepresentations and other defects in the affidavit in support of probable

cause to issue the warrant, and CrR 2.3(d) was violated because he was not presented

with a copy of the search warrant prior to commencement of the search. We conclude

that the delay in bringing Ollivier to trial did not violate speedy trial rights when

defendant's own counsel requested the continuances causing the delay and no claim of

ineffective counsel is made related to those continuances, that probable cause for the No. 86633-3

search warrant was sufficiently established by qualifying information in the affidavit, and

no violation ofCrR 2.3(d) occurred because a copy of the search warrant was posted

upon seizure of property pursuant to the warrant. We affirm the Court of Appeals'

decision upholding Ollivier's conviction for possession of child pornography.

FACTS

In March 2007, Brandon Ollivier, a registered sex offender, was living with

roommates who also were registered sex offenders. When one of the roommates, Eugene

Anderson, was arrested for a violation of community custody, he told his Community

Corrections Officer (CCO) on March 8, 2007, that Ollivier had shown him child

pornography on Ollivier's computer in their apartment. After this information was

relayed to King County Sheriffs Office Detective Dena Saario, she took a taped

statement from Anderson. Anderson told Saario that Ollivier had shown him a video of a

young girl and boy having sexual relations. He also stated that Ollivier had shown him

photographs of young girls about nine years old who were dressed but posed

provocatively. In addition, Anderson told Saario that Ollivier kept a locked red box that

contained pornography, including "Playboy" and "Barely Legal" magazines.

Detective Saario prepared an affidavit to obtain a search warrant for the apartment.

Among other things, she incorrectly stated that Anderson informed her that the red box

contained photographs of unclothed children in sexually explicit poses. The warrant was

issued and on April 5, 2007, it was executed. Ollivier was the only one in the apartment

when detectives arrived to search it. During the search, detectives seized two desktop

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computers, one laptop computer, several compact disks, USB (Uniform Serial Bus)

drives, and other storage media. At the conclusion of the search, Detective Saario posted

a copy of the warrant on a bookcase in the apartment.

A detective who initially examined the computer images concluded they contained

over 14,000 images of child pornography and about 100 video files of child pornography.

The vast majority were images of children under 15 years of age who were purposefully

posed to expose their genitals and the same children in various sex acts with other

children and adults, as well as other sex acts.

On April13, 2007, Ollivier was arrested and charged with possession of

depictions of minors engaged in sexually explicit activity. On April 18, 2007, he was

arraigned, with an initial speedy trial expiration date of June 29, 2007. Trial began on

March 9, 2009, following 22 continuances. Defense counsel sought most of the

continuances to allow time for investigation, to obtain expert review of computer content,

to obtain discovery material from the Washington State Department of Corrections and

the King County Sheriff's Office, and because of a new investigator on the case. Some

of the requested continuances mentioned circumstances involving the State and some

motions were joined by the State. In addition, shortly after executing the search warrant,

Detective Saario was investigated for misconduct and she resigned. A continuance was

requested to permit time to obtain information about the investigation into her conduct.

Ollivier did not object to the first two of these continuances, but he did object to nearly

all of the rest.

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King County Detective Barry Walden conducted a forensic search of the

computers. It is undisputed child pornography was found. Among other things, Walden

found a file folder on a computer registered to "Brandon" (Ollivier's first name) in an

unusual location. This computer contained hundreds of images of child pornography and

numerous video files, including four video files showing young girls appearing to be ages

5, 7, 7, and 12 in sexually explicit situations. Ollivier stipulated these videos satisfied the

definition of child pornography and they were not shown to the jury.

Anderson testified at Ollivier's trial that he stayed with Ollivier one week before

he was arrested on the community custody violation. He testified he never used the

computer he saw in Ollivier's apartment, that he saw Ollivier use it daily, and that he

never saw anyone else use it. He testified that Ollivier showed him child pornography on

the computer. Another roommate, Daniel Whitson, testified on Ollivier's behalf that he

(Whitson) had never seen Ollivier use the computer to view pornography.

Ollivier was convicted of one count possession of depictions of minors engaged in

sexually explicit conduct 1 and was sentenced to a standard range sentence. He appealed.

The Court of Appeals affirmed his conviction. State v. Ollivier, 161 Wn. App. 307, 254

P.3d 883 (2011).

1 Ollivier was originally charged with additional counts, but the State agreed to dismissal of several counts in light of State v. Sutherby, 165 Wn.2d 870, 204 P.3d 916 (2009).

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ANALYSIS

Right to a Speedy Trial Under CrR 3.3

Mr. Ollivier maintains that the time-for-trial rule in CrR 3.3 was violated when the

trial court granted 22 continuances without, he asserts, making sufficient inquiry into the

reasons for the delays. A trial court's decision to grant or deny a motion for a

continuance is within the discretion of the trial court and will not be disturbed absent an

abuse of discretion. State v. Kenyon, 167 Wn.2d 130, 135, 216 P.3d 1024 (2009).

CrR 3.3 accords with the United States Supreme Court's determination that states

can prescribe reasonable periods for commencement of trials consistent with

constitutional standards. Barker v. Wingo, 407 U.S. 514, 524, 92 S. Ct. 2182, 33 L. Ed.

2d 101 (1972). While the rule has the purpose of ensuring that a defendant's

constitutional right to a speedy trial is effectuated, complying with it does not necessarily

mean that no constitutional violation occurs. Kenyon, 167 Wn.2d at 136; see Barker, 407

U.S. at 531 (noting that the balancing test the Court adopted for Sixth Amendment

speedy trial purposes requires courts to consider the constitutional right on an ad hoc

basis and no set time is constitutionally sufficient for all cases); see State v. Iniguez, 167

Wn.2d 273, 287, 217 P.3d 768 (2009) ("CrR 3.3 provides a framework for the disposition

of criminal proceedings without establishing any constitutional standards").

Under CrR 3.3(b)(l)(i), an individual held in custody pending trial must be tried

within 60 days of arraignment. Certain time periods are excluded from the computation

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of time, including continuances granted by the trial court. CrR 3.3(e). CrR 3.3(f)(2)

explains:

On motion of the court or a party, the court may continue the trial date to a specified date when such continuance is required in the administration of justice and the defendant will not be prejudiced in the presentation of his or her defense. The motion must be made before the time for trial has expired. The court must state on the record or in writing the reasons for the continuance.

CrR 3 .3(f)(2) also provides that a motion for continuance "by or on behalf of any party

waives that party's objection to the requested delay."

Here, Ollivier's own counsel sought the continuances about which he complains,

and as the rule expressly provides, any objection is therefore waived?

Ollivier contends, however, that the trial court did not state on the record as to

each continuance that it was required in the administration of justice and that the

defendant was not prejudiced. For example, Mr. Ollivier says as to the October 19, 2007

ruling that the court indicated the continuance was granted in the administration of justice

but failed to comply with the requirement that the delay not prejudice the defendant.

However, the order explains the reason for the continuance was that the time was needed

for a defense expert to do work before trial. Implicit is the idea that if the expert lacked

sufficient time to complete the work, the defense would suffer or be incompletely

prepared.

2 Under case law preceding the 2003 adoption of the last sentence in CrR 3.3(f)(2) that waives objections when defense counsel moves for a continuance, granting continuances over the defendant's objection to ensure that counsel was adequately prepared and provided effective representation was not an abuse of discretion. State v. Campbell, 103 Wn.2d 1, 15, 691 P.2d 929 (1984); see State v. Finch, 137 Wn.2d 792, 806, 975 P.2d 967 (1999).

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Each order continuing the trial provides a reason for the continuance. In his

opening brief in the Court of Appeals, Mr. Ollivier "concede[ d] that any of the

continuances, standing alone, would not be an abuse of discretion." Appellant's Opening

Br. at 20 (emphasis omitted). This is a concession that each request for a continuance

was a legitimate request for an extension of time to pursue matters in preparation of his

defense and that the trial court properly granted the motions for continuances.

State v. Saunders, 153 Wn. App. 209, 220 P.3d 1238 (2009) and Kenyon, 167

Wn.2d 130, on which Ollivier heavily relies, do not compel a different conclusion.

Neither involved a similar situation. In Saunders, three continuances at issue were

granted that the Court of Appeals found to be unsupported by convincing and valid

reasons. 3 Indeed, the continuances were granted to permit ongoing plea negotiations over

the defendant's objection and contrary to his desire to go to trial. As the State points out

in the present case, whether to plead guilty is an objective of representation controlled by

the defendant and not a matter of trial strategy to achieve an objective. See Faretta v.

California, 422 U.S. 806, 820, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). In contrast,

3 The Court of Appeals summarized them as follows: Here, [the defendant] consistently resisted extending time for trial while he was incarcerated awaiting trial on his failure to register [as a sex offender] charges. The continuances granted on January 8, February 20, and March 18 are without adequate basis or reason articulated by the State or defense counsel. [The] defense counsel and the State either agreed to a continuance for further negotiations, contested by [the defendant], or relied on uninformed standby defense attorneys or assigned prosecutors to present contested orders-these standbys either did not lmow about the continuances or believed they were agreed continuances-and, when the trial court challenged them to state the basis of the requested continuances, they admitted they lmew nothing substantive about the status ofthe case. Saunders, 153 Wn. App at 220-21.

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under CrR 3.3, counsel has authority to make binding decisions to seek continuances.

Saunders is unlike Mr. Ollivier's case because here the continuances were sought to

enable defense investigation and preparation for trial.

In Kenyon, charges were dismissed because the record failed to sufficiently

document details showing that no judge was available to try the case, as required by

precedent. Kenyon involves continuances for far different reasons than in Ollivier's

In light ofCrR 3.3(f)(2) and Mr. Ollivier's concession that individually the

continuances were not an abuse of discretion, Mr. Ollivier's rule-based speedy trial right

was not violated. We affirm the Court of Appeals on this issue. Because this conclusion

does not resolve the constitutional issue, see Iniguez, 167 Wn.2d at 287, we next turn to

the issue whether Mr. Ollivier's constitutional rights to a speedy trial were violated.

Constitutional Rights Right to a Speedy Trial

Ollivier contends that the Court of Appeals erroneously ruled that to show a

violation of constitutional speedy trial rights, the defendant must establish actual

prejudice to his ability to prepare a defense. He maintains that actual prejudice is not

required before a violation of the right to a speedy trial can be found under the Sixth

Amendment and article I, section 22 ofthe Washington State Constitution.

4 Moreover, in Kenyon we noted that that "several continuances [were necessary] to prepare for trial, many ofthem against [the defendant's] wishes. But the continuances were deemed necessary to adequately prepare for [the defendant's] trial." Kenyon, 167 Wn.2d at 138. We thus acknowledged that time needed to prepare is a legitimate reason for continuances requested by counsel, even over the defendant's objections.

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Mr. Olivier's argument highlights the need for us to clarify our analysis in Iniguez

concerning when a showing of actual prejudice is required. As we explain below, and

contrary to Mr. Ollivier's contention, the defendant ordinarily must establish actual

prejudice to the ability to prepare a defense. The exception is when the delay is so

lengthy that prejudice to the ability to defend must be conclusively presumed.

Our review is de novo. Iniguez, 167 Wn.2d at 280. In Iniguez, we determined that

the analysis for speedy trial rights under article I, section 22 is substantially the same as

the Sixth Amendment analysis and that the state provision does not afford greater rights

to the defendant. Iniguez, 167 Wn.2d at 289. 5 Like the Sixth Amendment speedy trial

right, the state right is '"consistent with delays"' and subject to the circumstances.

Barker, 407 U.S. at 522 (quoting Beavers v. Haubert, 198 U.S. 77, 87, 25 S. Ct. 573, 49

L. Ed. 950 (1905)). Accordingly, the right is not quantified, does not depend upon

whether the defendant makes a specific request, and does not arise pursuant to some

inflexible rule. Id. at 522-25.

We use the balancing test set out in Barker to determine whether a constitutional

violation has occurred. Iniguez, 167 Wn.2d at 292. Because the state right is

substantially the same as the federal right and we employ the same balancing test that

was adopted by the United States Supreme Court, federal case law concerning the Sixth

Amendment right is highly relevant to application of the state constitutional provision in

5 The Sixth Amendment provides in part that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy ... trial." U.S. CoNST. amend. VI. Article I, section 22 of the Washington State Constitution similarly provides that "[i]n criminal prosecutions the accused shall have the right ... to have a speedy public trial."

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a given situation. !d. at 282; see also State v. Fortune, 128 Wn.2d 464, 474-75, 909 P.2d

930 (1996) (federal cases can provide guidance in interpreting the state constitution).

The analysis is fact-specific and "'necessarily dependent upon the peculiar

circumstances of the case."' Iniguez, 167 Wn.2d at 288, 292 (quoting Barker, 407 U.S. at

530-31). "[T]he conduct of both the prosecution and the defendant are weighed."

Barker, 407 U.S. at 529, 530. Among the nonexclusive factors to be considered are the

"[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and

prejudice to the defendant." Id. at 530. None of these factors is sufficient or necessary to

a violation. Iniguez, 167 Wn.2d at 283 (citing Barker, 407 U.S. at 533). But they assist

in determining whether a particular defendant has been denied the right to a speedy trial.

Threshold Showing of Presumptively Prejudicial Delay

Analysis of the length of delay entails a double inquiry. Doggett v. United States,

505 U.S. 647,651, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992). In order to trigger the

speedy-trial analysis, "an accused must allege that the interval between accusation and

trial has crossed the threshold dividing ordinary from 'presumptively prejudicial' delay"

because, "by definition," the accused "cannot complain that the government has denied

him a 'speedy' trial if it has, in fact, prosecuted his case with customary promptness." !d.

at 651-52 (quoting Barker, 407 U.S. at 530-31). Then, if this showing is made, a court

has to consider, "as one factor among several, the extent to which the delay stretches

beyond the bare minimum needed to trigger judicial examination of the claim." !d. at

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652. Thus, "the length of the delay is both the trigger for analysis and one of the factors

to be considered." United States v. Colombo, 852 F.2d 19, 24 (1st Cir. 1988).

The more than eight-year delay in Doggett was clearly sufficient to trigger the

speedy trial inquiry. The Court also noted in Doggett that while dependent upon the

nature of the charges, lower courts had in general found presumptively prejudicial delay

at least at the point at which it approaches one year. Doggett, 505 U.S. at 652 n.1. In

Iniguez, we found presumptive delay triggering the Barker analysis where the more than

eight-month delay was substantial and the charges were not complex.

In Mr. Ollivier's case, the State concedes, and we agree, that the delay was

presumptively prejudicial as a threshold matter. This does not mean that the right to a

speedy trial has been violated, but rather that the 23-month delay is sufficient to trigger

the Barker analysis. We next consider the Barker factors, noting that Ollivier has limited

his arguments to these factors and recognizing that although we generally examine each

in order, they are interrelated.

Length of Delay

The first of the Barker factors is the length of the delay. Ollivier maintains that

the length of delay weighs in his favor particularly because, he claims, it was not

reasonably necessary. He also points out he spent nearly the full period incarcerated and

that his counsel had told the court that she had never had a case with such a long delay.

Initially, in numerous cases courts have not regarded delay as exceptionally long

where the delay was as long as or longer than here, particularly when the delay was

11 No. 86633-3

attributable to the defense. E.g., United States v. Lane, 561 F.2d 1075 (2d Cir. 1977) (58

months, much attributable to repeated requests by the defense for continuances); Gattis v.

Snyder, 278 F.3d 222 (3d Cir. 2002) (28-month delay, all of which was attributable to the

defendant); United States v. Hills, 618 F.3d 619,630-31 (7th Cir. 2010) (two-year delay,

most of which was attributable to the defense); United States v. Porchay, 651 F.3d 930,

940 (8th Cir. 2011) (assuming 39-month delay was presumptively prejudicial, no Sixth

Amendment violation; "much of the delay ... was attributable to [defendant's] own

actions" where "[s]he filed well over fifty documents during the nearly three years she

was under indictment, including motions which required responses and hearings, notices

of interlocutory appeal, and written motions for continuance"); United States v. King, 483

F.3d 969 (9th Cir. 2007) (21-month delay did not violate the Sixth Amendment where

defense obtained numerous continuances, case was complex, and defendant obtained new

counsel halfway through proceedings); United States v. Larson, 627 F.3d 1198, 1209-10

(1Oth Cir. 201 0) (31-month delay did not violate Sixth Amendment in case that was not

unduly complicated; second factor weighed heavily against the defendant where every

continuance was attributable to the defendant). 6

6 See also United States v. Howard, 443 Fed. App'x 596, 599 (2d Cir. 2011) (unpublished) (43- month delay did not violate Sixth Amendment where "a significant portion of the delay in [the defendant's trial] was attributable to his own pretrial motions as well as ends-of-justice continuances that [the defendant] did not oppose"); United States v. Taylor, 489 Fed. App'x 34 (6th Cir. 2012) (unpublished) (22-month delay did not violate Sixth Amendment where delay was due to case's complexity and defendants' motions and requested continuances); United States v. Flowers, 476 Fed. App'x 55 (6th Cir. 2012) (unpublished) (no Sixth Amendment violation where much of the 904-day delay was attributed to the defendant's actions in changing counsel and seeking 21 continuances); Cejas v. Blanas, 366 Fed. App'x 763 (9th Cir. 2010) (unpublished) (38-month delay did not violate the Sixth Amendment where the majority of the

12 No. 86633-3

Contrary to Ollivier's claim, we do not agree that this was a case where the delay

was highly disproportionate to the complexity of the issues and counsel's need for

preparation. In fact, contrary to Ollivier's claim, one of the judges who granted

continuance requests commented on the complexity of the issues. Counsel had to obtain

information in connection with use of the computers in the shared residence and as the

State suggests, forensic computer analysis can be complex and tedious. We have

previously encountered the complexity associated with experts in relation to computers

delay was attributable to defendant, whose counsel requested continuances comprising about half of the delay and also consented to the prosecution's requests for continuances); Locke v. Dillman, 915 F. Supp. 2d 670 (E.D. Pa. 2013) (832-day delay did not violate the Sixth Amendment speedy trial right; 503 days of the delay were due to defense counsel's requests and another 329 days were due to congested court dockets and judicial delay); United States v. Goss, 646 F. Supp. 2d 137 (D.D.C. 2009) (4-year-5-month delay did not violate Sixth Amendment where delay primarily resulted from the defendant impeding the government's effort to provide him with recordings that he had requested and from defendant's requesting and obtaining new counsel four times); State v. Jones, 35 So. 3d 644 (Ala. Crim. App. 2009) (more than 30-month delay did not violate Sixth Amendment); Sechler v. State, 316 Ga. App. 675, 730 S.E.2d 142 (20 12) (44-month delay did not violate the Sixth Amendment where the defendant requested transfer to another court and the defense made numerous pretrial motions and requests for continuances); People v. O'Quinn, 339 Ill. App. 3d 347, 791 N.E.2d 1066 (2003) (3-and-1/2 year delay did not violate the Sixth Amendment where the defendant obtained al128 of the continuances that were granted); Eguia v. State, 468 N.E.2d 559 (Ind. Ct. App. 1984) (over 3- year delay, responsibility for most of which was with the defendant, did not violate the Sixth Amendment); Dickerson v. Commonwealth, 278 S.W.3d 145 (Ky. 2009) (23-month delay did not violate Sixth Amendment); State v. Wilkins, 11-1395 (La. App. 3 Cir. 6/20/12), 94 So. 3d 983 (2,294-day delay did not violate Sixth Amendment where delay was largely attributed to the defendant's pretrial motions); State v. Uffelman, 626 A.2d 340 (Me. 1993) (25-month-delay did not violate the Sixth Amendment; the great bulk of delay was attributable to the defendant); People v. Bailey, 101 Mich. App. 144, 300 N.W.2d 474 (1980) (24-month delay due in large part to defense); Taylor v. State, 672 So. 2d 1246 (Miss. 1996) (1027-day delay, much of which was attributable to the defense); State v. Grooms, 353 N.C. 50, 540 S.E.2d 713 (2000) (3-year-326- day delay, with much of the delay attributable to the defendant); Commonwealth v. Tilley, 528 Pa. 125, 595 A.2d 575 (1991) (22-month delay, mostly attributable to the defendant's continuances); Prihoda v. State, 352 S.W.3d 796 (Tex. App. 2011) (3-year delay did not violate Sixth Amendment); State v. Leighton, 2000 WI App. 156,237 Wis. 2d 709, 616 N.W.2d 126 (2000) (26-month delay, largely the result of defense requests for time to prepare did not violate the Sixth Amendment; the record strongly indicated defendant did not want a speedy trial).

13 No. 86633-3

and child pornography. State v. Grenning, 169 Wn.2d 47, 234 P.3d 169 (2010); State v.

Boyd, 160 Wn.2d 424, 158 P.3d 54 (2007); State v. Luther, 157 Wn.2d 63, 134 P.3d 205

(2006).

In addition, some of the delay in this case was attributed to discovery from the

King County Sheriffs Office in connection with preparation of the defense challenge to

the sufficiency of the search warrant. Counsel's pursuit of this discovery was highly

appropriate, obviously time-consuming, and required repeated efforts. And although the

sheriffs office is a state entity, it was not involved in the trial prosecution. Moreover, as

discovery proceeded, voluminous amounts of material were produced, necessitating

additional time to investigate and review.

Nearly all of the continuances were sought so that defense counsel could be

prepared to defend. This is an extremely important aspect of the balancing and leads us

to conclude that the length of delay was reasonably necessary for defense preparation and

weighs against the defendant.

Reason for Delay

The second Barker factor is the reason for the delay. Barker, 407 U.S. at 531;

Iniguez, 167 Wn.2d at 294. When the delay is due to trial preparation needs, as in this

case, the first and second factors are closely related.

The reason for the delay is "'the focal inquiry,"' United States v. Santiago-

Becerril, 130 F.3d 11, 22 (1st Cir. 1997) (quoting United States v. Sears, Roebuck & Co.,

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877 F.2d 734, 739 (9th Cir. 1989)), "[t]he flag all litigants seek to capture," United States

v. Loud Hawk, 474 U.S. 302, 315, 106 S. Ct. 648, 88 L. Ed. 2d 640 (1986).

To begin, the United States Supreme Court reminds us that "pretrial delay is often

both inevitable and wholly justifiable." Doggett, 505 U.S. at 656. Thus, careful

assessment of the reasons for the delay is necessary to sort the legitimate or neutral

reasons for delay from improper reasons. A court looks to each party's responsibility for

the delay, and different weights are assigned to delay, primarily related to

blameworthiness and the impact of the delay on defendant's right to a fair trial. Barker,

407 U.S. at 531. At one end of the spectrum is the situation where the defendant requests

or agrees to the delay and is therefore "is deemed to have waived his speedy trial rights as

long as the waiver is knowing and voluntary." Iniguez, 167 Wn.2d at 284 (citing Barker,

407 U.S. at 529). At the other end of the spectrum, if the government deliberately delays

the trial to frustrate the defense, this conduct will be weighted heavily against the State.

Barker, 407 U.S. at 531. Moving more toward the center, if the delay is due to the

government's negligence or overcrowded courts, the delay is still weighted against the

government, but to a lesser extent. ld. But if the government has a valid reason for the

delay, such as a missing witness, then the valid reason may justify a reasonable delay. Id.

We conclude that the second factor weighs more in favor of the State than the

defense. Delay caused by defense counsel is chargeable to the defendant. Vermont v.

Brillon, _U.S._, 129 S. Ct. 1283, 1290-91, 173 L. Ed. 2d 231 (2009); United States

v. Gearhart, 576 F.3d 459, 463 (7th Cir. 2009) ("[w]here a defendant seeks and obtains a

15 No. 86633-3

continuance, the defendant himself is responsible for the resulting delay"); United States

v. Gould, 672 F.3d 930,937 (lOth Cir. 2012) (delay of 1388 days; a "'[d]elay[]

attributable to the defendant do[es] not weigh against the government'" (quoting United

States v. Abdush-Shakur, 465 F.3d 458, 465 (lOth Cir. 2006))); United States v. Toombs,

574 F.3d 1262, 1274 (lOth Cir. 2009) ("[d]elays attributable to the defendant do not

weigh in favor of a Sixth Amendment violation"; "of the 671 days between the filing of

[the] indictment and the start of his trial, 423 were attributable to motions filed by [the

defendant]"; "this factor weighs heavily against" the defendant); United States v.

Garraud, 434 Fed. App'x 132, 137 (3d Cir. 2011) (unpublished) (no violation of Sixth

Amendment from 22-month delay because the defendant "was the cause for any delay in

his trial"; included in this time was an extension of time requested by the defendant for

discovery); United States v. Gates, 650 F. Supp. 2d 81, 87 (D. Me. 2009); United States

v. Hendrickson, 460 Fed. App'x 516, 520 (6th Cir. 2012) (unpublished); United States. v.

Woodley, 484 Fed. App'x 310, 319, 2012 WL 2299534, 7 (11th Cir. 2012) (unpublished)

(22-month delay attributable to defendant who filed over 40 pretrial motions and the

district court conducted multiple hearings and proceedings); Locke v. Dittman, 915 F.

Supp. 2d 670 (E.D. Pa. 2013) (where reason for delay originates with the defendant or his

counsel, the delay is not considered for purposes of determining whether constitutional

right to speedy trial is violated; 503-days delay attributable to defense counsel's

requests); In re Personal Restraint ofBenn, 134 Wn.2d 868, 952 P.2d 116 (1998)

(defendant charged in May 1988 and brought to trial in March 1990; virtually the entire

16 No. 86633-3

delay was attributable to continuances that were requested by the defense or agreed to by

the defense and there was no evidence of prejudice due to the delay; no constitutional

violation); Cookv. State, 810 N.E.2d 1064, 1068 (Ind. 2004).

In Brillon, 129 S. Ct. at 1290-91, the Court explained:

[D]elay caused by the defense weighs against the defendant Because "the attorney is the [defendant's] agent when acting, or failing to act, in furtherance of the litigation," delay caused by the defendant's counsel is also charged against the defendant. Coleman v. Thompson, 501 U.S. 722, 753, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991 ). The same principle applies whether counsel is privately retained or publicly assigned, for "[ o]nee a lawyer has undertaken the representation of an accused, the duties and obligations are the same whether the lawyer is privately retained, appointed, or serving in a legal aid or defender program." Polk County v. Dodson, 454 U.S. 312, 318, 102 S. Ct. 445, 70 L. Ed. 2d 509 (1981).

(Footnote and internal quotation marks omitted.) 7 The Court concluded that the

defendant's counsels' "'inability or unwillingness ... to move the case forward' may not

be attributed to the State simply because they are assigned counsel." Brillon, 129 S. Ct.

at 1292 (quoting State v. Brillon, 183 Vt. 475, 955 A.2d 1108, 1121 (2008)).

Nearly all of the continuances in this case were sought to accommodate defense

counsel's need to prepare for trial. Moreover, while it is true that the defendant objected

to most of these continuances, it does not follow that granting them violated his right to a

speedy trial.

Many courts hold that even where continuances are sought over the defendant's

objection, delay caused by the defendant's counsel is charged against the defendant under

7 The Court added that the rule is not absolute, and "[d]elay resulting from a systemic 'breakdown in the public defender system,' ... could be charged to the State." Brillon, 129 S. Ct. at 1292 (quoting 955 A.2d at 1111).

17 No. 86633-3

the Barker balancing test if the continuances were sought in order to provide professional

assistance in the defendant's interests. E.g., Bergman v. Cates, No. EDCV 12-00339-

AG, 2012 WL 5328717 (C.D. Cal. Aug. 10, 2012 (unpublished); Cox v. Warden, No.

1: 10-cv-117, 2011 WL 1980169, at *5 (S.D. Ohio Apr. 26, 2011) (unpublished); State v.

Ward, 227 Kan. 663, 667, 608 P.2d 1351 (1980) (defendant objected to continuances and

argued that timing of trial was a decision that must be left to the defendant; court

disagreed, saying that "[t]he matter of preparation and date of the trial and the type of

defense relied upon are clearly strategical and tactical decisions which require trained

professional skill and judgment which must rest with the lawyer"; no violation of Sixth

Amendment right to a speedy trial); Taylor v. State, 557 So. 2d 138, 141-42 (Fla. Dist.

Ct. App. 1990) (noting tension between the right to speedy trial and the constitutional

right to competent, prepared counsel; finding no violation of the constitutional right to

speedy trial where counsel sought a continuance over defendant's objections), overruled

on other grounds by Heuss v. State, 687 So. 2d 823 (Fla. 1996); State v. Taylor, 298

S.W.3d 482 (Mo. 2009) (counsel obtained continuances over objection of defendant to

prepare for trial; lengthy delay; defendant effectively asserted constitutional right to

speedy trial; no violation of Sixth Amendment); see also United States v. Brown, 498

F.3d 523, 531 (6th Cir. 2007) (delays resulting from defense counsel's need to prepare

are attributable to the defendant); People v. Lomax, 49 Cal. 4th 530, 556, 234 P.3d 377,

112 Cal. Rptr. 3d 96 (2010) (when defendant refuses to waive time despite attorney's

need for time to more prepare, conflict between statutory and constitutional rights to a

18 No. 86633-3

speedy trial and Sixth Amendment right to competent, adequately prepared counsel

arises; thus, when counsel seeks reasonable time to prepare and delay is for the

defendant's benefit, a continuance over the defendant's objection is justified).

Washington courts have reached the same conclusion, albeit with regard to the

rule-based speedy trial right. State v. Campbell, 103 Wn.2d 1, 15, 691 P.2d 929 (1984)

("[c]ounsel was properly granted the right to waive trial in 60 days, over defendant's

objection, to ensure effective representation and a fair trial"); State v. Lucas, 167 Wn.

App. 100, 112,271 P.3d 394 (2012); State v. Williams, 104 Wn. App. 516, 523, 17 P.3d

648 (2001); cf People v. Johnson, 26 Cal. 3d 557, 567, 162 Cal. Rptr. 431, 606 P.2d 738

(1980) (under California law, defense counsel's request for a continuance over a

defendant's objection is treated as a defense time waiver provided defense counsel was

"pursuing his client's best interests in a competent manner"); State v. McHenry, 268 Neb.

219, 682 N.W.2d 212 (2004) (request by defendant's attorney for a continuance to

prepare for trial waives the defendant's statutory right to a speedy trial despite

defendant's objection).

As explained above, this case involved issues of some complexity, and contrary to

some of Ollivier's arguments, complexity is not measured by whether the prosecutor

believed that the trial itself would be noncomplex or whether matters explored in

preparation for trial would actually be part of the trial. Much of the time expended in

preparing for this case involved pretrial discovery and suppression issues, and these are

the matters that led to most of the delay in this case.

19 No. 86633-3

Ollivier's arguments that delay should be attributed to the trial court and the

prosecution are unavailing. Ollivier argues that the trial court is responsible in part for

delay in obtaining discovery, citing United States v. Graham, 128 F.3d 372, 374 (6th Cir.

1997). But Graham involved discovery from the prosecution, a party to the action. Here,

discovery was sought from state entities that were not parties in the case, and the trial

court simply did not have the same responsibility as it would if a party were dilatory or

nonresponsive to discovery requests.

Ollivier also argues that the State had an affirmative duty to assist the defense

obtain discovery about the investigation into Detective Saario's misconduct but instead

remained passive. Ollivier urges that knowledge of the investigation is imputed to the

State and the State should have timely disclosed this knowledge to Ollivier as "Brady"

evidence material to Saario' s credibility, 8 but instead the State continued its passivity.

He cites Kyles v. Whitley, 514 U.S. 419,437-38, 115 S. Ct. 1555, 131 L. Ed. 2d 490

(1995) in support.

Given our analysis below with regard to sufficiency of the affidavit in support of

the search warrant and whether it was validly executed, we do not agree that any Brady

"material evidence" is at issue. "Materiality" means a '"reasonable probability' of a

different result," which is "shown when the government's evidentiary suppression

'undermines confidence in the outcome ofthe trial."' Kyles, 514 U.S. at 434 (quoting

United States v. Bagley, 473 U.S. 667, 678, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985)).

The evidence of images constituting child pornography was seized under a valid warrant 8 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

20 No. 86633-3

validly executed. The State presented evidence that Ollivier was the individual in

possession of the child pornography. Even if we assume the general soundness of

Ollivier's rather attenuated argument, the information about the investigation and

Saario's resignation-with any impeachment value it had on the issue of Saario's

credibility-is not material because even with this information there was no reasonable

probability of a different result. Kyles does not support Ollivier's claim that the State

should be blamed for the delay required to obtain discovery about the investigation into

Saario's misconduct.

We also note that despite Ollivier' s argument suggesting otherwise, neither the

court nor the prosecution had a specific duty to assist Ollivier in obtaining discovery from

the Department of Corrections, also a nonparty.

Finally, even if one assumes that any delay was due to institutional dysfunctions

attributable to the State, this would weigh against the State but "less heavily than

'deliberate delays or delays related to inexcusable inefficiency."' United States v.

McGrath, 622 F.2d 36, 41 (2d Cir. 1980) (quoting United States v. Companion, 545 F.2d

308, 312 n.3 (2d Cir. 1976)).

In summary, most of the continuances were sought by defense counsel to provide

time for investigation and preparation of the defense. Time requested by the defense to

prepare a defense is chargeable to the defendant, and this factor weighs heavily against

the defendant.

21 No. 86633-3

Assertion of Rights

The third Barker factor is "the defendant's assertion of or failure to assert his right

to a speedy trial." Barker, 407 U.S. at 514, 528. The Court added in Barker that "failure

to assert the right will make it difficult for a defendant to prove that he was denied a

speedy trial." Id at 532. Assertion of the speedy trial right is important in the balancing.

The Court explained that

[t]he more serious the deprivation, the more likely a defendant is to complain. The defendant's assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.

Id. at 531-32. Thus, assertion of the right is relevant to whether a violation has occurred

and also helps to establish or reinforce the conclusion that the defendant has not waived

the right.

It may be fairly unusual for a defendant to object to nearly all of a large number of

continuances sought by his own attorney. Here, however, Ollivier repeatedly objected to

counsel's motions for continuances, and he maintains that therefore his rights to a speedy

trial were timely asserted. But under the circumstances, these objections do not weigh in

favor of the conclusion that constitutional speedy trial violations occurred.

First, Ollivier's attorney acted as his agent and was responsible for investigating

issues and events related to possible defenses. She did this, for example, through

discovery requests for records from the King County Sheriffs Office concerning

Detective Saario, who prepared the affidavit in support of a search warrant, which

22 No. 86633-3

counsel sought in order to show that the affidavit contained deliberate falsehoods.

Counsel also sought continuances to obtain expert assistance in connection with child

pornography on the computer in Ollivier's residence and to obtain information from the

Department of Corrections about another possible suspect.

These matters were all relevant avenues of investigation and preparation for

Ollivier's defense. In light of the Court's discussion in Brillon, we conclude that the

delay resulting from such continuances must be attributed to the defense because "delays

caused by defense counsel are properly attributable to the defendant." Brillon, 129 S. Ct.

at 1293.

Second, a contrary conclusion would encourage objections even if defense counsel

is pursuing a legitimate defense and the continuances are unquestionably requested for

this purpose. Here, as noted, Ollivier has acknowledged that seeking the continuances

was reasonable. Appellant's Opening Br. at 20 (Mr. Ollivier "concedes," with regard to

his rule-based challenge, "that any of the continuances, standing alone, would not be an

abuse of discretion" (emphasis omitted)). His concession establishes that each request

for a continuance was a legitimate request for an extension of time to pursue matters in

preparation of his defense. But if defense counsel can seek continuances for any purpose

and at the same time the defendant can file effective objections-a nearly automatic

escape hatch would be created should the trial not proceed as hoped.

Indeed, if continuances over the defendant's objections were to weigh in favor of

the defendant's claim of a violation, then counsel might be encouraged

23 No. 86633-3

to delay proceedings by seeking unreasonable continuances, hoping thereby to obtain a dismissal of the indictment on speedy-trial grounds. Trial courts might well respond by viewing continuance requests ... with skepticism, concerned that even an apparently genuine need for more time is in reality a delay tactic.

Brillon, 129 S. Ct. at 1292. 9

Third, this brings to the fore the important fact that Ollivier's right to counsel was

furthered by counsel's requests. If because of the objections the trial court had denied

counsel's requests for continuances that were needed to prepare for trial, then Ollivier

might have had a strong claim that the right to effective assistance of counsel had been

denied.

The third factor, whether the defendant has asserted his speedy trial rights, does

not weigh in Ollivier's favor, given that his objections cannot be given effect when his

own counsel sought the continuances to prepare for trial. But this factor does not weigh

in favor of the State, either.

"Whether and how a defendant asserts his right is closely related to the other

factors .... The strength of his efforts will be affected by the length of the delay, to

some extent by the reason for the delay, and most particularly by the personal prejudice,

which is not always readily identifiable, that he experiences." Barker, 407 U.S. at 531.

This brings us to this last of the four factors.

9 The Court was specifically referring to appointed counsel's requests if appointed counsel was considered to be acting as the State for speedy trial purposes. The same reasoning applies here, however.

24 No. 86633-3

Prejudice

Under the fourth factor, prejudice to the defendant as a result of delay may consist

of(1) '"oppressive pretrial incarceration,"' (2) '"anxiety and concern ofthe accused,"'

and (3) '"the possibility that the [accused's] defense will be impaired' by dimming

memories and loss of exculpatory evidence." Doggett, 505 U.S. at 654 (alteration in

original) (quoting Barker, 407 U.S. at 532). These particularized showings of prejudice

are not just theoretical underpinnings to presumed prejudice, they are specific types of

prejudice that a defendant can offer in any case but, as in the present case, a defendant

must offer these or other particularized showings of prejudice when the delay is not due

to bad faith on the government's part and the delay is not sufficiently long for a

presumption of prejudice to arise. !d. at 656-68. 10

Contrary to Mr. Ollivier's contention, prejudice is not always presumed. To the

extent that our decision in Iniguez may have been less than clear on this point, we clarify

it now. A defendant ordinarily must establish actual prejudice before a violation of the

constitutional right to a speedy trial will be recognized.

As one court has accurately summarized the analysis:

The presumption of prejudice discussed in Doggett, however, is not automatically applicable whenever a defendant's trial is delayed. "Pretrial delay is often both inevitable and wholly justifiable." !d. at 656, 112 S. Ct. 2686. When the government prosecutes a case with reasonable diligence, a defendant who cannot demonstrate how his defense was prejudiced with specificity will not make out a speedy trial claim no matter how great the ensuing delay. See id.

10 The presumption of prejudice referred to in connection with the fourth Barker factor is prejudice that does not require that the defendant show actual prejudice to his defense. It is to be distinguished from the threshold presumption of prejudice that triggers the Barker analysis.

25 No. 86633-3

Where there is evidence of negligence on the government's part, but no bad faith, the Supreme Court has declared that a presumption of prejudice may arise, depending upon the length of the delay. See id. at 657, 112 S. Ct. 2686. "[T]o warrant granting relief, negligence unaccompanied by particularized trial prejudice must have lasted longer than negligence demonstrably causing such prejudice." !d. In Doggett, the Supreme Court noted an "extraordinary 8 1/2 year lag between Doggett's indictment and arrest," id. at 652, 112 S. Ct. 2686, and concluded that this delay was sufficient to create a presumption of prejudice to the defendant.

United States v. Howard, 218 F.3d 556, 564-65 (6th Cir. 2000) (emphasis added). 11

11 Doggett's explanation is more lengthy, but in relevant part is as follows: Our speedy trial standards recognize that pretrial delay is often both inevitable and wholly justifiable. The government may need time to collect witnesses against the accused, oppose his pretrial motions, or, if he goes into hiding, track him down .... [I]fthe Government had pursued Doggett with reasonable diligence from his indictment to his arrest, his speedy trial claim would fail. Indeed, that conclusion would generally follow as a matter of course however great the delay, so long as Doggett could not show specific prejudice to his defense . . . . [O]n the other hand, ... Doggett would prevail if he could show that the Government had intentionally held back in its prosecution of him to gain some impermissible advantage at trial. . . . Barker stressed that official bad faith in causing delay will be weighed heavily against the govermnent ... and a bad-faith delay the length of this negligent one would present an overwhelming case for dismissal. Between diligent prosecution and bad-faith delay, official negligence in bringing an accused to trial occupies the middle ground. While not compelling relief in every case where bad-faith delay would make relief virtually automatic, neither is negligence automatically tolerable simply because the accused cannot demonstrate exactly how it has prejudiced him .... Barker made it clear that "different weights [are to be] assigned to different reasons" for delay. Although negligence is obviously to be weighed more lightly than a deliberate intent to harm the accused's defense, it stilljctlls on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution once it has begun. And such is the nature of the prejudice presumed that the weight we assign to official negligence compounds over time as the presumption of evidentiary prejudice grows . ... Condoning prolonged and unjustifiable delays in prosecution would both penalize many defendants for the state's fault and simply encourage the government to gamble with the interests of criminal suspects assigned a low prosecutorial priority .... To be sure, to warrant granting relief, negligence unaccompanied by particularized trial prejudice must have lasted longer than negligence

26 No. 86633-3

This analysis requires a showing of particularized prejudice when shorter delays

and no government bad faith are involved. Presumed prejudice is recognized only in the

case of extraordinary delay, except when the government's conduct is more egregious

than mere negligence. WAYNE R. LAFAVE, JEROLD H. ISRAEL, NANCY J. KING &

ORIN S. KERR, CRIMINAL PROCEDURE§ 18.2(e) (3d ed. 2007). This treatise explains that

in applying the analysis from Doggett courts '"generally have found presumed prejudice

only in cases in which the post-indictment delay lasted at least five years except where

the government was responsible for the delay by virtue of something beyond simple

negligence."' !d. (quoting United States v. Serna-Villarreal, 352 F.3d 225, 232 (5th Cir.

2003)). In Serna-Villarreal, 352 F.3d at 232, the court summarized:

[T]his Court and others generally have found presumed prejudice only in cases in which the post-indictment delay lasted at least five years. See, e.g., Doggett, 505 U.S. at 658, 112 S. Ct. 2686 (finding presumed prejudice after a government-caused delay of six years); [United States v.] Bergfeld, 280 F.3d [486,] 488 [(5th Cir.2002)] (finding presumed prejudice after a delay of five years and three months but noting that, "[h]ad the delay been considerably shorter, [the defendant] might well have been properly required to demonstrate prejudice"); United States v. Cardona, 302 F .3d 494, 499 (5th Cir.2002) (finding presumed prejudice after a delay of five and one-half years); United States v. Brown, 169 FJd 344, 350 (6th

demonstrably causing such prejudice. But even so, the Government's egregious persistence in failing to prosecute Doggett is clearly sufficient. The lag between Doggett's indictment and arrest was 8 1/2 years, and he would have faced trial 6 years earlier than he did but for the Government's inexcusable oversights. The portion of the delay attributable to the Government's negligence far exceeds the threshold needed to state a speedy trial claim; indeed, we have called shorter delays "extraordinary." ... When the Government's negligence thus causes delay six times as long as that generally sufficient to trigger judicial review, ... and when the presumption of prejudice, albeit unspecified, is neither extenuated, as by the defendant's acquiescence, ... nor persuasively rebutted, ... the defendant is entitled to relief. Doggett, 505 U.S. at 656-58 (emphasis added).

27 No. 86633-3

Cir.1999) (finding presumed prejudice after a five and one-half year delay); United States v. Shell, 974 F.2d 1035, 1036 (9th Cir.1992) (finding presumed prejudice after a six-year delay). In the instant case, the delay between indictment and trial was, at most, only three years and nine months, considerably less than the delay in the cases cited above. And, if this Court considers only the period between the time of the indictment and the time that the government began diligently to pursue the charge, the delay shortens to three years and six months. Accordingly, the length of delay factor of the Barker balancing test does not weigh heavily in [the defendant's] favor.

Numerous cases exemplify this part of the Barker analysis as more fully explained

in Doggett. E.g., United States v. Malina-Solorio, 577 F.3d 300, 307 (5th Cir. 2009);

Howard, 218 F.3d at 564-65; Hills, 618 F.3d at 632; United States v. Toombs, 574 F.3d

1262, 1275 (lOth Cir. 2009) ("[i]n Doggett v. United States, the Supreme Court held that

if there is extreme delay, the defendant need not present specific evidence of prejudice

and instead may rely on the presumption of prejudice created by the extreme delay").

The delay in Ollivier's case is not lengthy enough to constitute extreme delay

warranting the presumption of prejudice. See, e.g., Toombs, 574 F.3d 1275 (22-month

delay does not constitute extreme delay); Serna-Villarreal, 352 F.3d at 232 (three years

and nine months insufficient for presumed prejudice); United States v. Williams, 557 F.3d

943, 950 (8th Cir. 2009) (400-day "delay was not of such length to eliminate the need to

show particularized prejudice and because there is no evidence that the delay impeded

[the defendant's] defense or threatened to deprive him of a fair trial, ... there was no

Sixth Amendment violation").

The next issue, therefore, is whether Mr. Ollivier has established particularized

prejudice that would weigh heavily against the State. As mentioned, the three types of

28 No. 86633-3

prejudice identified in Barker and Doggett are oppressive pretrial incarceration, anxiety

and concern of the accused, and the possibility that the defendant's defense will be

impaired by dimming memories and loss of exculpatory evidence.

Oppressive Pretrial Incarceration

While Ollivier spent almost two years in jail awaiting his trial this is not, on its

face, oppressive. Periods of incarceration as long or longer have been found not

oppressive. E.g., Hartridge v. United States, 896 A.2d 198 (D.C. 2006) (27 months);

United States v. Leeper, No. 08-CR-69S-5,12, 2009 WL 5171831, at *6 (W.D.N.Y.

Dec. 23, 2009) (unpublished) (22 months; this amount of time, without more, cannot

show undue oppression); United States v Herman, 576 F.2d 1139, 1147 (1978) (22

months); State v. Couture, 2010 MT 201, 357 Mont. 398, 418-19, 240 P.3d 987 (924

days); see also Smith v. State, 275 Ga. 261, 263, 564 S.E.2d 441 (2002) (19-month

incarceration; no evidence this "was oppressive to a degree beyond that which necessarily

attends imprisonment"). Moreover, his complaints about jail conditions do not suggest

that conditions were oppressive; rather, the conditions are common to incarceration. 12

Undue Anxiety and Concern

Anxiety and concern are often experienced by defendants awaiting trial. "[T]he

second type of prejudice ... is always present to some extent, and thus absent some

unusual showing is not likely to be determinative in defendant's favor." LAFAVE et al.,

supra,§ 18.2(e) (footnote omitted); United States v. Henson, 945 F.2d 430, 438 (1st Cir.

12 Ollivier complains that he was prejudiced because of the effect of the continuances on his potential for release on bond. However, he has failed to comprehensibly explain a connection between the delay and the prejudice that he claims was the result.

29 No. 86633-3

1991) ("considerable anxiety normally attends the initiation and pendency of criminal

charges; hence only 'undue pressuresl are considered"); United States v. Dirdenl 38 F.3d

1131l 113 8 (1Oth Cir. 1994) (the focus is whether there is some "special harm suffered

which distinguishes [the defendantls] case"). Mr. Ollivier has not established this type of

unusual anxiety and concern.

Impairment of Defense

The most important of the three interests is protection against impairment of the

defense because if the defendant cannot adequately prepare his easel "the fairness ofthe

entire system is skewed." Barker, 407 U.S. at 532. In Ollivier's case, however, most of

the continuances that resulted in the delay of which he complains were requested by

defense counsel in order to prepare an adequate defense. Thus, any impairment of this

interest must be weighed against the benefits obtained via the continuances, such as the

records pertaining to the honesty .or dishonesty of the detective who sought the search

warrant.

Further, although he expresses concern about one of his witnesses' ability to recall

and testify about matters, the witness did testify and consistently with Ollivier's account

of events, i.e., that Ollivier never showed him child pornography. Ollivier's ability to

call another witness was not impaired as claimed because he could have been called. The

only claimed impairment of his defense that might be implicated concerns whether

witnesses could recall the facts pertaining to his claim that officers failed to give him a

30 No. 86633-3

copy of the search warrant. But as we explain below, a copy of the search warrant was

posted at the apartment and no violation of CrR 2.3( d) occurred.

Balancing the Factors

Balancing the Barker factors clearly weighs against the defendant. The delay was

not unduly long; the reasons for the delay are primarily attributable to the defense

because defense counsel sought numerous continuances to facilitate investigation and

preparation of the defense; although Ollivier objected to most of the continuances and

asserted his speedy trial rights, this factor does not strongly weigh in his favor in light of

the reasons for the continuances and the absence of actual prejudice; and because the

delay was not sufficiently extraordinary to be presumed prejudicial, Ollivier was required

to show particularizyd prejudice and he has made an insufficient showing to tip the scales

in his favor.

We conclude that there was no violation ofOllivier's constitutional right to a

speedy trial under the Sixth Amendment and article I, section 22.

Sufficiency of the Affidavit in Support of the Search Warrant

Ollivier challenges the seizure of the computers and other property on the grounds

of an invalid search warrant. He first maintains that there was an insufficient showing of

probable cause once material misrepresentations made by Detective Saario were redacted

from the affidavit in support of the warrant.

Article I, section 7 provides that "[n]o person shall be disturbed in his private

affairs, or his home invaded, without authority oflaw." A search warrant may be issued

31 No. 86633-3

only on a determination of probable cause. State v. Jackson, 150 Wn.2d 251, 264, 76

P.3d 217 (2003). Probable cause exists when the affidavit in support of the search

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

may be found at a certain location." !d. Affidavits in support of a search warrant are

examined in a commonsense, not a hypertechnical manner, and doubts are to be resolved

in favor of the warrant. State v. Chamberlain, 161 Wn.2d 30, 41, 162 P.3d 389 (2007);

Jackson, 150 Wn.2d at 265.

Preliminary Showing of Material Misrepresentation or Omission

A search warrant may be invalidated if material falsehoods were included in the

affidavit intentionally (deliberately) or with reckless disregard for the truth, or if there

were deliberate or reckless omissions of material information from the warrant. State v.

Chenoweth, 160 Wn.2d 454,478-79, 158 P.3d 595 (2007); State v. Garrison, 118 Wn.2d

870, 872-73, 827 P.2d 1388 (1992). If the defendant makes a substantial preliminary

showing of such a material misrepresentation or omission, the defendant is entitled to a

Franks 13 evidentiary hearing. Garrison, 118 Wn.2d at 872. If at the hearing the

defendant establishes the allegations, then the material misrepresentation must be stricken

or the omitted material must be included and the sufficiency of the affidavit then assessed

as so modified. State v. Cord, 103 Wn.2d 361,367,693 P.2d 81 (1985). If at that point

13 Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).

32 No. 86633-3

the affidavit fails to support a finding of probable cause, the warrant will be held void and

evidence obtained when the warrant was executed must be suppressed. ld. 14

Here, Ollivier made a preliminary showing that triggered an evidentiary hearing.

The trial court found that Detective Saario deliberately misrepresented that Ollivier's

roommate had told her that Ollivier kept a red, locked box containing pornographic

magazines with photographs of unclothed children under 16 years of age in sexually

explicit poses for sexual gratification. The roommate had actually told her that Ollivier

kept a red box with pornography, including "Playboy" magazines and "Barely Legal"

magazines. Clerk's Papers at 233 (Finding of Fact l.f). The difference is significant in

that child pornography is illegal to possess. During argument to the trial court, Ollivier

claimed that another misrepresentation was made, i.e., that the roommate saw Ollivier

looking at both computer and print images of children under 10, when the roommate

actually said only that he saw Ollivier viewing computer images.

Qualifying Information Sufficient To Establish Probable Cause

The trial court determined that when the false information was omitted, there was

sufficient qualifying information in the affidavit to establish probable cause to support

issuance of the search warrant.

14 A similar analysis applies when information obtained by an unconstitutional search is included in an affidavit of probable cause. The illegally obtained information may not be used to support the warrant and the court must view the warrant without the illegally obtained information and determine whether the remaining facts in the affidavit are sufficient to establish probable cause to support the search warrant. Then, if the probable cause is lacking, the warrant is invalidated and evidence seized pursuant to the warrant must be excluded. State v. Eisfeldt, 163 Wn.2d 628, 640, 185 P.3d 580 (2008); State v. Ross, 141 Wn.2d 304, 311-15, 4 P.3d 130 (2000).

33 No. 86633-3

The determination whether the qualifying information amounts to probable cause

is a legal question that is reviewed de novo. State v. Garcia-Sa/gada, 170 Wn.2d 176,

240 PJd 153 (2010). We agree with the trial court that the affidavit, after the

misrepresentations are deleted, establishes probable cause. It states that the affiant

received a telephone call from a ceo with whom she had worked for the past four years

on criminal investigations, including investigations involving sex related crimes. It states

the CCO advised the affiant that one of the CCO's clients, Eugene Anderson, who was a

registered sex offender, had told the CCO that he had seen his roommate Ollivier, also a

registered sex offender, during a recent, specified 10-day period looked at many

photographs on his personal home computer at a specified address and these photographs

were of children under 10 years of age who were posed, deliberately exposing their

genitals. Anderson also told the CCO that he saw Ollivier view depictions of minors

under age 16 engaging in sexual intercourse. The affidavit then relates that the affiant

took Anderson's taped statement in which he said he knew the individuals in the photos

were prepubescent because of their physical characteristics (which were described) and

also said that while he lived with Ollivier, Ollivier viewed child pornography everyday.

Informant's Credibility

Mr. Ollivier also contends, however, that the affidavit is insufficient because it

does not establish Anderson's credibility as an informant. We continue to follow the

Aguilar-Spinelli standard under article I, section 7. 15 See State v. Lyons, 174 Wn.2d 354,

15 Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969) were overruled by Illinois v. Gates,

34 No. 86633-3

359 n.l, 275 P.3d 314 (20 12). This standard has two prongs. The basis of knowledge

prong requires that the affidavit contain "sufficient facts to convince a reasonable person

of the probability the defendant is engaged in criminal activity and that evidence of

criminal activity can be found at the place searched." !d. at 359 & 359 n.2. The veracity

prong requires that the affidavit contain information from which a determination can be

made that the informant is credible or the information reliable. State v. Jackson, 102

Wn.2d 432, 435, 688 P.2d 136 (1984). When a citizen informant provides information, a

relaxed showing of reliability suffices "because there is less risk of the information being

a rumor or irresponsible conjecture which may accompany anonymous informants" and

an identified informant's report is less likely to be marred by self-interest." State v.

Gaddy, 152 Wn.2d 64, 72-73, 93 P.3d 872 (2004); see Chamberlin, 161 Wn.2d at 42;

State v. Huft, 106 Wn.2d 206, 211, 720 P.2d 838 (1986) (citing State v. Northness, 20

Wn. App. 551, 557, 582 P.2d 546 (1978)).

Accordingly, "[c]itizen informants are deemed presumptively reliable." Gaddy,

152 Wn.2d at 73; see State v. Chenoweth, 160 Wn.2d 454,483, 158 P.3d 595 (2007)

(reference to the "presumed inherent reliability of a citizen informant"); Charles W.

Johnson, Survey of Washington Search and Seizure Law: 2005 Update, 28 SEATTLE U.

462 U.S. 213, 103 S. Ct. 2317,76 L. Ed. 2d 527 (1983), in which a totality ofthe circumstances analysis was adopted for purposes of the Fourth Amendment. Both Aguilar and Spinelli involved tips from confidential informants and we recently acknowledged that the Aguilar-Spinelli standard applies to confidential informants. Lyons, 174 Wn.2d at 359 & 359n.l ("we still adhere to theAguilar[-]Spinelli standard for establishing probable cause via a confidential informant"). We also employ the Aguilar-Spinelli standard when a named citizen informant provided the information used to establish probable cause. State v. Chamberlin, 161 Wn.2d 30, 41-42, 162 P.3d 389 (2007).

35 No. 86633-3

L. REV. 467, 534-35 (2005) (and cases cited therein) (when a named informant provides

information in the form of facts and circumstances sufficiently detailed to establish

personal knowledge, the informant may be presumed to be reliable when his or her

identity is disclosed to the issuing judge). The defendant must rebut the presumption of

reliability to overcome it. See Gaddy 152 Wn.2d at 73-74.

The second prong, basis of knowledge, may be satisfied by a showing that the

informant had personal knowledge of the facts provided to the affiant. State v. Vickers,

148 Wn.2d 91, 112, 59 P.3d 58 (2002).

Here, Mr. Ollivier concedes that Anderson had a basis of knowledge as to whether

there was pornography in the apartment. The concession is appropriate because

Anderson lived in the apartment for a brief period and provided information about

personal observations of child pornography on Ollivier's computer.

Ollivier contends, however, that no presumption of credibility should attach

because Anderson was under psychiatric care, jailed due to community custody violations

at the time he provided the information, and if he was found in possession of child

pornography, he could have been punished, but none of this information was in the

affidavit. These are appropriate facts to present in an effort to rebut the presumption of

credibility attaching to a citizen informant, but we do not agree these facts mean the

presumption does not arise. Nor do they rebut the presumption here.

As the State demonstrates, the affidavit identified Anderson as a prior sex offender

under the supervision of a ceo, and the fact he told the ceo about child pornography in

36 No. 86633~3

the same residence where he had resided, which was revealed in the affidavit, had the

potential to expose him to additional sanctions. Thus, rather than bringing his credibility

into question, this information showed that he would be motivated to tell the truth

because he was a supervised registered sex offender and that his information was reliable.

Ollivier does not explain why the fact that Anderson was under psychiatric care

shows that he was not credible or his information was unreliable in the circumstances.

In sum, we find that the affidavit sufficiently disclosed facts from which the judge

could assess the reliability of Anderson's information and the basis of his knowledge.

CrR 2.3(d)

Mr. Ollivier contends that the evidence found on his computer must be suppressed

because officers failed to present him with a copy of the search warrant before it was

executed, as he says is required by CrR 2.3(d). The State maintains that there is no such

requirement under the rule.

CrR 2.3( d) provides in part:

Execution and Return With Inventory. The peace officer taking property under the warrant shall give to the person from whom or from whose premises the property is taken a copy of the warrant and a receipt for the property taken. If no such person is present, the officer may post a copy of the search warrant and receipt.

We construe court rules using the same rules that we apply when construing

statutes. State v. McEnroe, 174 Wn.2d 795,800,279 P.3d 861 (2012). The plain

language at issue provides that if an officer takes property pursuant to the warrant, then

the officer "shall give" a copy of the warrant to the person from whose premises the

37 No. 86633-3

property is taken or post a copy of the warrant. 16 Nothing in the language of the rule says

that a copy of the warrant must be provided before the search is begun.

Here, property was taken and Detective Saario posted a copy of the warrant before

leaving. We do not agree that there was a violation of the rule.

CONCLUSION

We hold that the delay in bringing defendant Brandon Ollivier to trial, which

resulted because of numerous continuances sought by his own counsel, did not violate his

rights to a speedy trial under CrR 3.3, article I, section 22, or the Sixth Amendment. The

delay is attributable to Ollivier because his counsel acts as his agent when seeking

continuances to further the defense, and his objections to these acts do not weigh in favor

of finding a violation of constitutional speedy trial rights. If they did, counsel's ability to

provide effective assistance of counsel and the attorney-client relationship would be

seriously undermined.

We also hold that when misrepresentations are redacted from the affidavit in

support of the search warrant authorizing the search of Ollivier' s apartment, the affidavit

contains sufficient information to establish probable cause to search. Finally, there is no

requirement under CrR 2.3(d) that a copy of the search warrant be presented prior to

commencement of the search, and a copy of the warrant was posted, satisfying the

requirement that a copy be provided when property is seized under the warrant.

16 The rule is consistent with "[t]he prevailing view in state and federal cases" that exhibiting or delivering a copy of the warrant "need only be done prior to post-search departure by the police." 2 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 4.12(a) (5th ed. 2012).

38 No. 86633-3

We affirm the Court of Appeals and affirm Ollivier's conviction.

39 No. 86633-3

WE CONCUR:

40 State v. Ollivier (Brandon Gene), No. 86633-3

No. 86633-3

CHAMBERS, J. * (dissenting)-Brandon Ollivier was arrested in April

2007. His trial took place nearly two years later, in March 2009, after 22

continuances, during which time he remained incarcerated. The Washington and

United States constitutions both guarantee criminal defendants the right to a speedy

trial. CoNST. art. I,§ 22; U.S. CONST. amend. VI. The Sixth Amendment and

article I, section 22 of the Washington Constitution also protect Ollivier's right to

effective assistance of counsel. State v. Thomas, 109 Wn.2d 222, 229, 743 P.2d

816 (1987). The majority, in my view, forces a defendant to give up one of these

two important fundamental rights in order to maintain the other. The court has

decided that in order to assure a defendant receives effective assistance of counsel,

the defendant must waive his right to a speedy trail, and if he does not, the court

will do it for him. I do not read these two fundamental rights in the alternative.

Ollivier was entitled to both effective assistance of counsel and a speedy trial.

*Justice Tom Chambers is serving as a justice pro tempore ofthe Supreme Court pursuant to Washington Constitution article IV, section 2(a). State v. Ollivier (Brandon Gene), No. 86633-3 Chambers, J. (Dissenting)

The majority would, on an agency theory, deprive Ollivier of his speedy trial

right by permitting his appointed counsel to waive his right to a speedy trial little

by little, time and time again, over Ollivier's strenuous objections. The court must

be vigilant of collusion between counsel and defendant. But because there are

circumstances where appointed counsel may have unduly burdensome case loads,

applying principles of agency effectively strips the accused of the right of a speedy

trial, sacrificing it to the overworked lawyer to lessen the lawyer's case load. 1 To

such a profound misreading of our constitutions, I cannot agree. I dissent.

In 2007, Ollivier, a convicted sex offender, was living with another

convicted sex offender, Eugene Anderson. Anderson was arrested in March 2007

for failure to register as a sex offender. While in custody, Anderson told his

community custody officer that he had seen Ollivier looking at child pornography

on the computer in the apartment he shared with Ollivier. The exact date of

Ollivier' s arrest is not clear from the record before us, but it appears to be on or

about April18, 2007. Trial did not begin until March 9, 2009. Ollivier was found

guilty by a jury of one count of possessing depictions of minors engaged in

1 I use the example of the overworked defender to emphasize a flaw in the majority's analysis. The record does not address whether the attorney in this particular case was overburdened. 2 State v. Ollivier (Brandon Gene), No. 86633-3 Chambers, J. (Dissenting)

sexually explicit conduct on Apri114, 2009. Ollivier remained in custody from the

time of his arrest until his trial, and his judgment and sentence reflects a total credit

of 768 days in the King County jail.

Before Ollivier' s trial, the trial court granted 22 motions for continuance.

Ollivier objected, often strenuously, to every continuance but the first two?

Although nearly all the continuances were requested by Ollivier's attorney, the

reasons for the continuances were numerous and varied and included, for example,

ongoing investigation, incomplete. preparation by a defense expert, vacationing

defense attorney, vacationing detective, new investigator on the case, and delays in

obtaining discovery material from the Department of Corrections and the King

County Sheriffs Office. As to the last example, Ollivier's attorney apparently had

quite a lot of trouble obtaining discovery from government agencies, and that

accounted for a significant portion of the delay. Out of22 continuances only two

were requested by the prosecution. However, some continuances requested by the

defense contain explanations that also implicate the State. E.g., Clerk's Papers

(CP) at 267 (prosecutor jury duty); CP at 277 (prosecutor absent); CP at 290

(prosecutor on vacation). But it is evident that most of the continuances were

requested by and granted to the defense, not the State.

2 Ollivier may not have objected to one other continuance on February 15, 2008. See Report of Proceedings of Continuance Hearings (RP) (Feb. 15, 2008) at 39. 3 State v. Ollivier (Brandon Gene), No. 86633-3 Chambers, J. (Dissenting)

It appears that at least three bond hearings occurred. Record of Proceedings

of Continuance Hearings (RP) (Nov. 30, 2007) at 27 (indicating a bond hearing on

Nov. 19, 2007); Verbatim Report ofProceedings (VRP) (Dec. 10, 2007) at 2

(indicating a bond hearing sometime after Dec. 10, 2007); RP (Dec. 28, 2007) at

35 (indicating a bond hearing sometime in Jan. 2008). The record does not reveal

why Ollivier was never released on bond, but Ollivier's attorney admitted the

judge had ruled unfavorably for Ollivier in one hearing in part "based on [the

attorney's] assertion that the case would not be continued because at that time [she]

did not think that [she] would be asking for a continuance." RP (Nov. 30, 2007) at

27.

At one point Ollivier attempted to fire his attorney, but withdrew the motion

because he believed "she has her priorities in order, and everything straightened

out." VRP (Dec. 10, 2007) at 4. Fifteen more months passed before Ollivier went

to trial.

The Sixth Amendment states: "In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial." U.S. CoNST. amend. VI. The

Washington Constitution article I, section 22 states: "In criminal prosecutions the

accused shall have the right ... to have a speedy public trial." We review a claim

4 State v. Ollivier (Brandon Gene), No. 86633-3 Chambers, J. (Dissenting)

of denial of constitutional rights de novo. State v. Iniguez, 167 Wn.2d 273, 280,

217 P.3d 768 (2009) (citing Brown v. State, 155 Wn.2d 254, 261, 119 P.3d 341

(2005)).

In addition to the speedy trial right, an accused has another important

constitutional right at stake, the right to effective assistance of counsel. CONST. art.

I,§ 22; U.S. CONST. amend. VI; Thomas, 109 Wn.2d at 229. Both protections are

part of the bedrock foundation upon which our justice system rests. A person

cannot be forced to waive his or her right to a speedy trial in order to maintain the

right to effective assistance of counsel. See State v. Michielli, 132 Wn.2d 229,

244-46, 937 P.2d 587 (1997) (citing State v. Cannon, 130 Wn.2d 313, 328-29, 922

P.2d 1293 (1996)). Nor is a defendant obliged to choose between a speedy trial

and effective assistance. See State v. Price, 94 Wn.2d 810, 814, 620 P .2d 994

(1980). While these two fundamental rights may seem in tension in a case like

this, an accused is entitled to have both constitutional rights enforced. Both the

trial judge hearing motions for continuances and the prosecutor have a role in

assuring both of these important constitutional rights are upheld.

Our speedy trial analysis is "substantially the same" as the federal analysis.

Iniguez, 167 Wn.2d at 290. We analyze the four factors from the United States

Supreme Court case Barker v. Wingo, 407 U.S. 514,92 S. Ct. 2182, 33 L. Ed. 2d

5 State v. Ollivier (Brandon Gene), No. 86633-3 Chambers, J. (Dissenting)

101 (1972). "As a threshold to the Barker inquiry, a defendant must show that the

length of the delay crossed a line from ordinary to presumptively prejudicial."

Iniguez, 167 Wn.2d at 283 (citing Doggett v. United States, 505 U.S. 647, 651-52,

112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992); Barker, 407 U.S. at 530). Ifthe delay

is presumptively prejudicial, then we turn to the four Barker factors.

First, we examine the length of the delay, "focus[ing] on the extent to which

the delay stretches past the bare minimum needed to trigger the Barker analysis."

I d. at 283-84 (citing Doggett, 505 U.S. at 652). Second, we examine the reason for

the delay. ld. at 284 (citing Barker, 407 U.S. at 531). Third, we consider the

extent to which a defendant asserted his speedy trial rights. I d. (citing Barker, 407

U.S. at 531 ). Fourth, we consider the prejudice to the defendant as a result of the

delay. I d. (citing Barker, 407 U.S. at 532).

The majority's analysis ofthree ofthe four Barker factors relies heavily on

the tension between the defendant's right to a speedy trial and right to competent

representation. Regarding the first factor-the length of the delay-the majority

states that "the length of the delay was reasonably necessary for defense

preparation and weighs against the defendant." Majority at 14. Regarding the

second factor-the reason for the delay-the majority states that "[t]ime requested

by the defense to prepare a defense is chargeable to the defendant, and this factor

6 State v. Ollivier (Brandon Gene), No. 86633-3 Chambers, J. (Dissenting)

weighs heavily against the defendant." Majority at 21. And finally, regarding the

third factor-whether the defendant asserted his speedy trial right-the majority

states that "[t]he third factor ... does not weigh in Ollivier's favor, given that his

objection cannot be given effect when his own counsel sought the continuances to

prepare for trial." Id. at 24. In essence, the majority finds that none of the first

three factors weigh in Ollivier's favor because "[i]f ... the trial court had denied

counsel's requests for continuances that were needed to prepare for trial, then

Ollivier might have a strong claim that the right to effective assistance of counsel

had been denied." Id. In other words, under the majority's analysis, Ollivier could

have either effective assistance of counsel or a speedy trial, but not both. I believe

that result is unacceptable. My analysis of the first three factors consequently

differs from the majority's analysis. I also disagree with the majority's discussion

of the fourth factor, as discussed below.

THE FOUR SPEEDY TRIAL FACTORS

1. First Factor: Length of Delay

The parties in this case agree that the delay of 23 months is presumptively

prejudicial and triggers the Barker analysis. However, the first factor focuses on

how much longer the delay was than the minimum needed to trigger the analysis.

See Iniguez, 167 Wn.2d at 292. Iniguez rejected a bright line period of delay that

7 State v. Ollivier (Brandon Gene), No. 86633-3 Chambers, J. (Dissenting)

triggers a presumption of prejudice and emphasized that each case must be

evaluated upon its own merits. I d. at 291-92 (citing State v. Corrado, 94 Wn. App.

228, 231, 972 P.2d 515 (1999)). For guidance, we examined precedent with

similar facts. Courts in general have often found presumptive prejudice at a delay

of about eight months to one year. I d. In Iniguez, we found an eight month delay

was presumptively prejudicial under the facts of the case. I d. Under the relatively

straightforward facts and issues in this case, eight months was sufficient to cross

the line to presumptive prejudice.

Ollivier's trial was delayed more than a full year beyond any reasonable

presumptively prejudicial time for a delay of his trial. It is not clear why the

majority finds the reason for the delay-the second factor-significant in its

analysis of the first factor. In fact, the majority's analysis generally conflates and

then elides all the first three factors into the "reason for the delay" factor.

Regardless, more than one year in jail is an exceptionally long time for a

noncomplex case such as this one 3 and cannot be said to be in compliance with a

3 I will concede that at the outset, this case appeared to have some complexity as the defense's case rested in part upon expert testimony relating to an analysis of the computer in the apartment available to more than one registered sex offender. However, the defense had concluded by November 30, 2007, that its expert's "services will not be required ... for the case." RP (Nov. 30, 2007) at 26-27. From the defense's point of view it appears there were only two issues for trial: whether the images on the computer were Ollivier's or his roommate's and whether the seizure of the computer was lawful. It 8 State v. Ollivier (Brandon Gene), No. 86633-3 Chambers, J. (Dissenting)

constitutional mandate for a speedy trial. Overall this factor weighs heavily in

favor of the defendant.

n. Second Factor: Reason for Delay

In general, this factor looks at fault-who is to blame for the delay-by

asking "whether the government or the criminal defendant is more to blame for

th[e] delay." Doggett, 505 U.S. at 651 (citing Barker, 407 U.S. at 530). The

majority, by contrast, focuses on whether "the delay is due to trial preparation."

Majority at 14. But who is to blame for the delay is not necessarily the same

question as whether the delay is due to the defense counsel's trial preparation. For

example, in this case, a large number of continuances resulted from the failure of

state agencies to timely respond to discovery requests. E.g., RP (Mar. 7, 2008) at

41; RP (June 4, 2008) at 46. Defense counsel was also very busy with other cases.

At one point, the defendant's attorney admitted that she was simply "not

prepared." RP (Sept. 5, 2008) at 51. Other examples of the reasons for delay are

numerous and many have been delineated above. The defendant himself was never

appears also that the bulk of the delay occurred while defense counsel obtained two records: records from the Department of Corrections about the computer skills of Ollivier's roommate, Anderson, to impeach his claim he was computer illiterate and records from the King County Sheriffs Office concerning the detective responsible for the search warrant affidavit who was accused of dishonesty. From the prosecution.'s perspective, the case was not particularly complex either. The charges were straightforward; the crime did not involve multiple parties, involved one eyewitness, and did not have a specific victim. 9 State v. Ollivier (Brandon Gene), No. 86633-3 Chambers, J. (Dissenting)

personally responsible for delay, and he objected in almost every instance to

continuance. Certainly, a person should not rot in jail because an appointed

defender is too overworked to prepare his or her case for trial.

I do not fault the trial judge in this case. Once the case was assigned to the

trial judge only one continuance was permitted. Unfortunately, various presiding

department judges granted most of the continuances without taking any steps to

ensure the trial would occur in a timely fashion. Some of the delay was caused by

government agencies apparently not responding to discovery requests and these

agencies were not parties before the court. The judge does not have a specific duty

under the Barker analysis, but I would stress that judges are more than potted

plants in the corner of the courtroom. And judges are more than umpires calling

strikes and balls (although even umpires move the game along and do not permit

undue delays). I understand this is not always an easy task for a judge; judges

should not force cases to trial when counsel is unprepared. Nor should judges

interfere with attorney-client relationships. But neither can the judge permit the

defendant to languish in jail for an unreasonable length of time merely because

appointed counsel has too heavy a case load. When practical and appropriate,

judges should exercise the court's authority to control the calendar and move a

case forward in a timely fashion. That was not done in this case.

10 State v. Ollivier (Brandon Gene), No. 86633-3 Chambers, J. (Dissenting)

Nor do I find a specific fault with the prosecutor in this case-but neither am

I willing to hear the prosecutor complain. The prosecutor has no specific duty to

assist the defense in obtaining discovery from third parties. But, as we have said

before, the prosecutor does owe a duty to defendants to ensure their constitutional

rights are not violated. State v. Monday, 171 Wn.2d 667, 676, 257 P.3d 551 (2011)

(citing State v. Case, 49 Wn.2d 66, 70-71,298 P.2d 500 (1956)). Such officials,

with the power of the state at their disposal, must constantly bear in mind ""'that a

fearless, impartial discharge ofpublic duty, accompanied by a spirit offairness

toward the accused, is the highest commendation they can hope for."'" State v.

Warren, 165 Wn.2d 17, 27-28, 195 P.3d 940 (2008) (quoting State v. Charlton, 90

Wn.2d 657, 665, 585 P.2d 142 (1978) (quoting State v. Montgomery, 56 Wash.

443, 447-48, 105 P. 1035 (1909))). When trial is delayed as long as this one

primarily because the defense claims to be having difficulty obtaining records from

the King County Sheriff's Office and Department of Corrections without the State

making efforts or suggestions to expedite the process, the State is not in a position,

in my view, to protest too loudly. This factor does not weigh heavily in favor of

either party in this case.

111. Third Factor: Defendant's Objections

11 State v. Ollivier (Brandon Gene), No. 86633-3 Chambers, J. (Dissenting)

The third factor examines "whether and to what extent a defendant demands

a speedy trial." Iniguez, 167 Wn.2d at 294 (citing Barker, 407 U.S. at 528-29).

We look at the frequency and force of the defendant's objections, and we give

strong evidentiary weight to a defendant's assertion of his rights. !d. at 295 (citing

Barker, 407 U.S. at 529).

The decision that the majority would thrust upon criminal defendants to give

up one of two fundamental rights is most apparent in its analysis of the third factor.

The majority makes an agency argument that no matter how often or strenuously a

defendant objects to continuing his trial, if the request for a continuance is made by

the defendant's lawyer for the purposes of preparing for trial, that request is

attributable to the defendant. I disagree.

The majority relies upon Vermont v. Brillon, 556 U.S. 81, 129 S. Ct. 1283,

173 L. Ed. 2d 231 (2009). But that case is entirely distinguishable. In fact, the

Brillon Court itself emphasized the extremely narrow nature of its holding:

Barker's formulation "necessarily compels courts to approach speedy trial cases on an ad hoc basis," and the balance arrived at in close cases ordinarily would not prompt this Court's review. But the Vermont Supreme Court made a fundamental error in its application of Barker that calls for this Court's correction. The Vermont Supreme Court erred in attributing to the State delays caused by "the failure of several assigned counsel ... to move his case forward," and in failing adequately to take into account the role ofBrillon's disruptive behavior in the overall balance.

12 State v. Ollivier (Brandon Gene), No. 86633-3 Chambers, J. (Dissenting)

Brillon, 556 U.S. at 91-92 (citations omitted). As the above passage illustrates, the

question in Brillon was plainly not whether defense counsel may indefinitely

obtain continuances over the specific objection of the defendant. Instead, the

question in Brillon was twofold.

The first question was whether the Vermont Supreme Court erred by holding

that a public defender's request for continuances may be attributed to the State

because the defender is assigned and paid for by the State rather than privately

retained. The Court answered yes. Id. at 85 ("We hold that the Vermont Supreme

Court erred in ranking assigned counsel essentially as state actors in the criminal

justice system. Assigned counsel, just as retained counsel, act on behalf of their

c11ents. . . .") . .

The second question was whether the Vermont Supreme Court failed to

consider the fact that the defendant himself was plainly a bad actor in causing the

delay in his own case. That fact weighed heavily against him in the Court's

decision, as is evident in the above passage. The Court noted that Brillon fired

three of his attorneys and was assigned new counsel six times. Id. at 86-88. Each

time Brill on fired a lawyer, the judge warned him the motion to dismiss counsel

would result in him spending more time in jail. I d. at 87. The Court also made a

point of repeating the concern voiced by the dissent in the Vermont State Supreme

13 State v. Ollivier (Brandon Gene), No. 86633-3 Chambers, J. (Dissenting)

Court's decision below: "But for Brillon's 'repeated maneuvers to dismiss his

lawyers and avoid trial through the first eleven months following arraignment,' the

dissent explained, 'the difficulty in finding additional counsel would not have

arisen."' Id. at 89 (quoting State v. Brillon, 183 Vt. 475, 504, 955 A.2d 1108

(2008)).

While it is true that the Brillon Court stated, based upon agency principles,

that in a Sixth Amendment speedy trial context, delay caused by counsel is

"ordinarily" attributable to the client, id. at 85, this is not an "ordinary" case. Like

the federal courts, our speedy trial analysis is ad hoc. Each case is examined on its

own facts. I find Brillon distinguishable. No one in this case has suggested that

Ollivier's counsel's delay is attributable to the State because Ollivier's counsel was

a public defender. And no one has suggested that Ollivier actively attempted to

delay his own case. Those were the only questions at issue in Brillon. Brillon

simply does not stand for the principle that, based on agency, the power to waive

the right to a speedy trial belongs to the lawyer, not the client.

In this case, I find no fault with the defendant. Ollivier did demand a speedy

trial, in at least 19 out of 22 continuances. He asserted his rights constantly, and

even prepared a five page letter on the subject to the judge in October 2007 (seven

months after his arraignment, with 16 months still to go before trial). CP at 271-

14 State v. Ollivier (Brandon Gene), No. 86633-3 Chambers, J. (Dissenting)

76. The record shows that Ollivier was constantly being assured trial was just

around the corner, even as each continuance proved such assurances false. RP

(June 15, 2007) at 5 ("I'm going to try and be ready by July."); RP (Nov. 30,

2007) at 27 ("Part of the judge's ruling in [the bond hearing] was based upon my

assertion that the case would not be continued."); RP (Mar. 7, 2008) at 41 ("I am

hoping that this is the last continuance."); RP (July 25, 2008) at 48 ("I have a

confidence that this case can be tried in September."); RP (Sept. 5, 2008) at 50

("This is a case that needs to be completed before I rotate out of my unit so it will

be done by the first of the year."). Ollivier's frustration was apparent when he

stated in January 2009 that "[Judge Gain] denied my bond hearing that I had in

March because I was going to trial in May, guaranteed, were his promised words to

me. This is far past May." RP (Jan. 21, 2009) at 9. We do not have any

transcripts of the bond hearings, but this assertion was not corrected by Ollivier's

attorney, who was present, and it is consistent with her previous statement that an

earlier bond hearing had turned out the same way because of her assurance to the

judge that trial was imminent.

The defendant himself did nothing to delay the case and, if anything, he

strenuously objected to almost every continuance. To impute waiver of his speedy

trial right to the defendant sitting in jail because his lawyer, appointed by the

15 State v. Ollivier (Brandon Gene), No. 86633-3 Chambers, J. (Dissenting)

government, is too busy, overworked, or simply fails to prepare, effectively strips

from the defendant the affirmative constitutional right to a speedy trial. Or, at the

very least, the court forces the defendant to waive his right to a speedy trial in

order to preserve his right to effective assistance of counsel.

The majority argues that if a defendant's objections to continuances granted

at defense counsel's request are counted as assertions of the defendant's speedy

trial right, defense counsel and the defendant might collude to later obtain a

reversal. I concede that is a concern. But it is a concern that should be dealt with

on a case by case basis, not with a blanket rule that forces a defendant to waive a

fundamental right. The majority proposes just such a blanket rule-that a

defendant's "objections cannot be given effect when his own counsel sought the

continuances to prepare for trial." Majority at 24. Otherwise, the majority

explains, "Ollivier might have had a strong claim that the right to effective

assistance of counsel had been denied." I d. At the risk of repetition, I emphasize

that this is tantamount to the majority suggesting that Ollivier could not be

permitted to assert his speedy trial right because he could then assert ineffective

assistance of counsel.

Imagine a case, much like this one, where, each month, a defendant's court-

appointed counsel requests a continuance over the defendant's objection. Defense

16 State v. Ollivier (Brandon Gene), No. 86633-3 Chambers, J. (Dissenting)

counsel, each month, asserts that she needs just one more month to prepare, and

then she will be ready for trial. A one month delay does not seem unreasonable,

and it may well be necessary for a fair trial and competent representation, so it is

granted. Each motion in isolation may have merit. Incrementally, month after

month, the case is continued. Incrementally, months become years. In a system

where the appointed defenders are sometimes woefully underpaid and overworked,

this approach in practice effectively guts the right to a speedy trial to save the right

to effective assistance of counsel. The defendant is forced to give up the former

right to receive the latter. Such a situation is simply unacceptable. We can and

must do better. There is no claim of collusion between the defendant and his

attorney in this case. I would find this factor weighs heavily in favor of the

defendant.

1v. Fourth Factor: Prejudice

The importance of the speedy trial right is illustrated by the fourth and final

factor in the Barker analysis. In Iniguez, we described the application of the final

factor as follows: "Prejudice is judged by looking at the effect on the interests

protected by the right to a speedy trial: ( 1) to prevent harsh pretrial incarceration,

(2) to minimize the defendant's anxiety and worry, and (3) to limit impairment to

the defense." Iniguez, 167 Wn.2d at 295 (citing Barker, 407 U.S. at 532). Thus,

17 State v. Ollivier (Brandon Gene), No. 86633-3 Chambers, J. (Dissenting)

the fourth factor shows exactly what interests a defendant must give up when the

court forces the defendant to sacrifice his or her speedy trial right in order to

receive effective assistance.

While impairment to the defense is "the most serious" of the three aspects of

prejudice, we cannot discount prejudice to the other interests protected by the

speedy trial right, as identified by the Supreme Court: prevention of oppressive

pretrial incarceration and minimizing the anxiety and concern of the accused.

Barker, 407 U.S. at 532. Because I believe the majority's analysis of these other

two aspects of prejudice is seriously flawed, I address them first.

In this case, the defendant spent almost two years in jail awaiting trial. His

anxiety and worry is apparent throughout the record. In Barker, the United States

Supreme Court explained:

We have discussed previously the societal disadvantages of lengthy pretrial incarceration, but obviously the disadvantages for the accused who cannot obtain his release are even more serious. The time spent in jail awaiting trial has a detrimental impact on the individual. It often means loss of a job; it disrupts family life; and it enforces idleness. Most jails offer little or no recreational or rehabilitative programs. The time spent in jail is simply dead time. Moreover, if a defendant is locked up, he is hindered in his ability to gather evidence, contact witnesses, or otherwise prepare his defense. Imposing those consequences on anyone who has not yet been convicted is serious. It is especially unfortunate to impose them on those persons who are ultimately found to be innocent. Finally, even if an accused is not incarcerated prior to trial, he is still disadvantaged

18 State v. Ollivier (Brandon Gene), No. 86633-3 Chambers, J. (Dissenting)

by restraints on his liberty and by living under a cloud of anxiety, suspicion, and often hostility.

Barker, 407 U.S. at 532-33 (footnotes omitted) (emphasis added). The right to a

speedy trial protects against pretrial incarceration and the anxiety that comes with

the deprivation of personal liberty and complete loss of control over one's own

fate. As the Supreme Court passage above makes clear, it does not operate, as the

majority suggests, only when incarceration is particularly horrific or anxiety is

particularly intense. To hold otherwise severely neuters the speedy trial right.

Two years in jail is a long time by any measure, and the first two prongs ofthe

prejudice analysis weigh in Ollivier's favor in this case.

Finally, the question remains whether Ollivier must show some prejudice to

his defense to gain relief and, if so, whether he has shown any here. In this case,

there was some evidence of prejudice because contested relevant facts were

difficult to ascertain as a result of faded memories of police officers and the

defendant. One of Ollivier' s primary claims related to the failure of the officers

who searched his home to give him a copy of the warrant. That claim depended on

the memories of both the defendant and the officers. According to the Supreme

Court, "[t]here is ... prejudice if defense witnesses are unable to recall accurately

events of the distant past." Barker, 407 U.S. at 532. According to the trial court's

findings in this case, the "officers testified truthfully based on their memories, but 19 State v. Ollivier (Brandon Gene), No. 86633-3 Chambers, J. (Dissenting)

had no recollection of some ofthe events." CP at 229. As a result, the court could

find only that "[t]he defendant probably expressed an interest in being shown a

copy of the search warrant, and probably was shown a copy of the warrant." !d.

This is enough to satisfy the third prong of the prejudice factor under the

circumstances of this case.

Ollivier remained incarcerated for 23 months while his trial was continued

22 times. Ollivier personally and sometimes strenuously objected to at least 19 of

the continuances. The majority entirely dismisses Ollivier' s objections and

concludes that he must have waived his speedy trial right because otherwise, had

his objections been sustained, he might have received ineffective assistance of

counsel. I do not believe that is a choice courts can foist on defendants, nor do I

think this court can sacrifice the right to a speedy trial in order to preserve the right

to effective assistance of counsel. I therefore conclude Ollivier's speedy trial

rights were violated. I would reverse the Court of Appeals and dismiss the charges

against him.

20 State v. Ollivier (Brandon Gene), No. 86633-3 Chambers, J. (Dissenting)