Opinion
No. 39478-6-III
07-11-2024
STATE of Washington, Respondent, v. Justin Joe ORTEGA, Appellant.
Andrea Burkhart, Two Arrows, PLLC, 1360 N. Louisiana St. #a-789, Kennewick, WA, 99336-8113, for Appellant. Jill Shumaker Reuter, Yakima County Prosecuting Attorney’s Office, P.O. Box 30271, Spokane, WA, 99223-3004, for Respondent.
Appeal from Yakima Superior Court, Docket No: 19-1-01953-6, Honorable Kevin S. Naught, Judge.
Andrea Burkhart, Two Arrows, PLLC, 1360 N. Louisiana St. #a-789, Kennewick, WA, 99336-8113, for Appellant.
Jill Shumaker Reuter, Yakima County Prosecuting Attorney’s Office, P.O. Box 30271, Spokane, WA, 99223-3004, for Respondent.
OPINION PUBLISHED IN PART
Pennell, J.
¶1 Justin Ortega appeals his convictions for eight instances of sexual and physical abuse against his girlfriend’s young daughters. He argues the State’s case was tainted by evidence seized during an unconstitutional cell phone search. We reject this claim. The search occurred pursuant to a warrant that particularly authorized seizure of photographs documenting sexual abuse. And by using forensic technology to extract and or- ganize the cell phone’s data, law enforcement officers were able to execute the warrant in a way that limited the scope of information that came under their review. We therefore affirm Mr. Ortega’s convictions.
To protect the privacy interests of the minor children, we refer to them by their initials throughout this opinion. See Gen. Order 2012-1 of Division III, In re Use of Initials or Pseudonyms for Child Victims or Child Witnesses (Wash Ct App Jun. 18, 2012), https://www.courtswagov/appellate_trial_courts/?fa=atc.genorders_orddisp&ordnumber=2012-001 &div=III
FACTS
¶2 In October 2019, nine-year-old J.R. and her sister, eight-year-old M.R., each disclosed—-first to a teacher, then to police— that they had suffered physical and sexual abuse at the hands of their mother’s boyfriend, Justin Ortega. The State charged Mr. Ortega with five counts of first degree rape of a child, two counts of first degree child molestation, and one count of third degree assault of a child.
¶3 During the police investigation, M.R. related that Mr. Ortega had recorded images of his assaultive conduct on his cell phone. Based on this disclosure, law enforcement believed Mr. Ortega’s cell phone probably contained evidence of the crimes with which he was charged. The police subsequently obtained possession of the cell phone from a family member, who voluntarily turned it over to police.
¶4 Detective Curtis Oja of the Yakima Police Department applied for a search warrant to examine the contents of the phone. The superior court granted a warrant, authorizing police to search Mr. Ortega’s cell phone and seize any images or videos depicting Mr. Ortega engaged in "sexual contact" with M.R., as well as any information identifying the owner of the device. Clerk’s Papers (CP) at 63, 66.
¶5 Pursuant to the warrant, police searched the phone and seized 35 images, some showing Mr. Ortega as the device’s owner (for example, selfies taken by Mr. Ortega), some showing him engaged in sexual contact with M.R., and one showing him engaged in sexual contact with J.R.
¶6 Mr. Ortega moved to suppress the fruits of the cell phone search. He argued that the warrant was insufficiently particular, in violation of the state and federal constitutions. The trial court held an evidentiary hearing on the motion and the State presented testimony from detectives Curtis Oja and Kevin Lee.
¶7 According to the testimony, officers began the search by connecting Mr. Ortega’s phone to an extraction device known as the "Cellebrite Touch." 1 Rep. of Proc. (RP) (Nov. 9, 2022) at 90. Detective Lee then ran an extraction that allowed the files on Mr. Ortega’s phone to be organized into categories (for example, messages, images, etc.). Once extracted, data is not visible unless someone opens the individual category folders through Cellebrite’s physical analyzer program. See id. at 91-92. Neither Detective Lee nor Detective Oja recalled reviewing anything besides photos and videos.
¶8 Detective Lee was asked, "are you able to" simply type in "8-year-old girl, sexual contact and only remove" those images "from [the phone?]" Id. at 98. Detective Lee responded, "No. … It’s just not possible." Id. He clarified that it would be possible to run a search directing the program to extract solely images, instead of all of the phone’s data, but such an extraction would be incomplete because it would not gather deleted images. Detective Lee also agreed that it was technically possible to search the phone manually for the authorized images, given that the phone had no passcode. But he explained that "best practice dictates that hand searches occur after a forensic search is conducted, that way there’s no chance that you would delete or change any data." Id. at 110. Detective Oja explained that the forensic extraction process "preserves [the cell phone] in the same format that it was at the time it was searched." Id. at 139.
¶9 After the data extraction, Detective Lee gave Detective Oja a thumb drive containing more than 5,000 extracted images. Detective Oja agreed that it was similar to being given a physical photo album and having to flip through the pages to find what you are looking for. As he explained, "Somebody has to manually go through and identify which images … depict sexual contact." Id at 136. Detective Oja explained that after he seized 35 images, M.R. and J.R. identified themselves in the photographs they were shown.
¶10 The trial court denied Mr. Ortega’s motion to suppress the images seized from his cell phone. Mr. Ortega subsequently waived his right to a jury trial and his case was tried to the bench. The court found Mr. Ortega guilty as charged. At sentencing, the court imposed an indeterminate life sentence with a minimum of 299 months’ confinement. As to legal financial obligations, the court found Mr. Ortega was indigent and imposed the then-mandatory $500 crime victim penalty assessment (VPA) and $100 DNA collection fee.
The court granted the suppression motion in one narrow respect, ruling that it would not consider any of the "EXIF" (exchangeable image file format) data associated with the extracted images. 1 RP (Nov. 14, 2022) at 178. While Detective Oja had asked for permission to seize EXIF data, the warrant itself—perhaps inadvertently—did not include EXIF data in its authorization. EXIF data is metadata that can help precisely identify when an image was captured.
¶11 Mr. Ortega timely appeals.
ANALYSIS
Cell phone search
¶12 Mr. Ortega contends we should reverse his convictions and remand with instructions to grant his suppression motion. He argues (1) the search warrant was insufficiently particular, and (2) police exceeded the scope of the warrant. We discuss each contention in turn.
1. Whether the warrant failed the particularity requirement
[1–7] ¶13 "Both the Fourth Amendment [to the United States Constitution] and article I, section 7 [of the Washington Constitution] require that a search warrant describe with particularity the place to be searched and the persons or things to be seized." See State v. Vance, 9 Wash. App. 2d 357, 363, 444 P.3d 1214 (2019). The particularity requirement, which aims to prevent generalized rummaging through a suspect’s private affairs, "is of heightened importance in the cell phone context," given the vast amount of sensitive data contained on the average user’s smartphone device. State v. Fairley, 12 Wash. App. 2d 315, 320, 457 P.3d 1150 (2020). Whether a warrant satisfies the particularity requirement is a constitutional issue that is reviewed de novo. Id. at 321.
Mr. Ortega emphasizes that our state constitution "provides for broader privacy protections than" its federal counterpart. State v. Z.U.E., 183 Wash.2d 610, 618, 352 P.3d 796 (2015). This is certainly true and explains why the state constitution is less forgiving of warrantless searches. See, e.g., State v. Hendrickson, 129 Wash.2d 61, 69 n 1, 917 P.2d 563 (1996). However, Mr. Ortega cites no authority indicating that our state constitution imposes a stricter particularity requirement.
[8, 9] ¶14 The purposes of the particularity requirement are to prevent a general search, limit the discretion of executing officers, and ensure that items to be searched or seized are supported by probable cause. State v. Perrone, 119 Wash.2d 538, 545, 834 P.2d 611 (1992). When reviewing whether a warrant satisfies the requirement, we do not take a hypertechnical approach. Id. at 549, 834 P.2d 611. Rather, we interpret a warrant "in a commonsense, practical manner." Id.
[10] ¶15 The warrant here easily satisfies the particularity requirement. It directed officers to "search" the phone and "seize … images and/or videos depicting Justin Ortega engaged in sexual contact with" an eight-year-old, along with "information identifying the owner of the device." CP at 66. This did not permit a general rummaging; it was akin to a warrant allowing a search of a residence for controlled substances and indicia of ownership. The terms of the warrant were sufficiently descriptive to direct the actions of law enforcement; the warrant only allowed for a search of areas of the phone where the officer might find photos or indicia of ownership. And, as set forth in the warrant, there was probable cause to believe that images of Mr. Ortega assaulting M.R. would be found on the phone and that the phone belonged to Mr. Ortega.
While the warrant here only authorized seizure of images of Mr. Ortega engaged in sexual contact with M.R., the image of Mr. Ortega engaged in sexual contact with J.R. was properly seized under the plain view doctrine. See State v. Temple, 170 Wash. App. 156, 164, 285 P.3d 149 (2012) ("Under the plain view doctrine, an officer must (1) have a prior justification for the intrusion, (2) inadvertently discover the incriminating evidence, and (3) immediately recognize the item as contraband."). Law enforcement had a prior justification for the intrusion into the photo album on Mr. Ortega’s phone: the warrant. And while executing that warrant, law enforcement inadvertently discovered an image of Mr. Ortega engaged in sexual contact with J.R., a nine-year-old, which any reasonable observer would immediately recognize as contraband.
Mr. Ortega has never challenged the existence of probable cause.
¶16 Mr. Ortega complains that the warrant authorized a wholesale data dump of information on his phone. But this issue goes to how the warrant was executed. The warrant itself did not mention broad swaths of cell phone data. Cf State v. McKee, 3 Wash. App. 2d 11, 19, 29, 413 P.3d 1049 (2018) (holding warrant specifying broad categories of cell phone data not connected to charged crimes was overbroad), rev’d on other grounds, 193 Wash.2d 271, 438 P.3d 528 (2019). Nor did the warrant specify a forensic method for how officers were to search Mr. Ortega’s phone. Thus, Mr. Ortega’s complaints about the data dump go not to the issue of particularity, but to the officers’ execution of the warrant.
Arguably, Mr. Ortega did not preserve an objection to the execution of the warrant. During the suppression hearing in superior court, his only complaint pertained to whether the warrant particularly described items to be seized. Nevertheless, the State does not claim this issue has been waived.
2. Whether officers exceeded the scope of the warrant
[11–13] ¶17 Execution of a search warrant must be strictly tied to "the scope of the warrant." State v. Witkowski, 3 Wash. App. 2d 318, 325, 415 P.3d 639 (2018). Our review of whether a particular search has met this constitutional mandate is de novo. Id. at 324, 415 P.3d 639.
[14–16] ¶18 " ‘[A] computer search may be as extensive as reasonably required to locate items described in the warrant’ based on probable cause." United States v. Burgess, 576 F.3d 1078, 1092 (10th Cir. 2009) (quoting United States v. Grimmett, 439 F.3d 1263, 1270 (10th Cir. 2006)). The scope of a search can be limited by identifying targeted content. Id. at 1093. When a warrant authorizes a search for a particular item, the scope of the search " ‘generally extends to the entire area in which the object of the search may be found.’ " Witkowski, 3 Wash. App. 2d at 325-26 (quoting United States v. Ross, 456 U.S. 798, 820-21,102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982)).
¶19 The record here shows detectives Oja and Lee properly limited the scope of their search to the terms of the warrant. The images of M.R. could have been located almost anywhere on Mr. Ortega’s cell phone— not only in a photos application, but also in e-mails and text messages. Had the detectives chosen to search Mr. Ortega’s phone manually, they likely would have needed to sort through data other than images in order to find the targets of their search. And they would have risked jeopardizing the evidentiary integrity of the phone. See United States v. Ganias, 824 F.3d 199, 215 (2d Cir. 2016) (recognizing that, when dealing with digital evidence, "[p]reservation of the original medium or a complete mirror may … be necessary in order to safeguard the integrity of evidence" and "afford criminal defendants access to that medium or its forensic copy"); State v. Grenning, 169 Wash.2d 47, 60-61, 234 P.3d 169 (2010) (holding defendant was entitled to "mirror image copy" of the data on his hard drives seized by law enforcement). By instead using forensic software, the detectives were able to organize the data from Mr. Ortega’s phone without first viewing the phone’s contents. This enabled them to limit their search to data labeled as photos and videos, thus restricting the scope of the search to areas where the target of the search could be found.
[17] ¶20 Mr. Ortega laments that, due to the extraction method used by police, "the entire contents of the phone" were "available" to police. Appellant’s Br. at 7-8. But it is unclear how the mere availability of the data constituted an intrusion into Mr. Ortega’s "private affairs" absent any indication that law enforcement in fact looked at data besides that which they were authorized to examine. Wash. Const. art. I, § 7. The phone was not password protected; its contents were therefore "available" to law enforcement the moment it came into their possession. Appellant’s Br. at 7. But a seizure is not the same as a search. See Fairley, 12 Wash. App. 2d at 321-22. Here, the extraction process did not, by itself, enable law enforcement to view the entire contents of Mr. Ortega’s phone. It was still necessary to open up the individual data-type folders created through the extraction process. By using forensic software to extract and organize data from Mr. Ortega’s phone, the detectives were able to minimize their review of the phone contents and tailor their search to the evidence authorized by the warrant. This did not violate Mr. Ortega’s constitutional rights. See United States v. Mann, 592 F.3d 779, 784 (7th Cir. 2010).
¶21 Mr. Ortega’s convictions are affirmed.
¶22 The panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports, and that the remainder having no precedential value, shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR:
Lawrence-Berrey, C.J.
Staab, J.