Opinion
No. 59752-3-I.
July 14, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 06-1-03392-7, George N. Bowden, J., entered March 20, 2007.
Affirmed by unpublished opinion per Agid, J., concurred in by Dwyer, A.C.J., and Leach, J.
Hasan Clay appeals his conviction of one count of first degree burglary, one count of first degree assault, and two counts of second degree assault, contending that (1) the trial court erred in denying his motion to suppress information obtained from his cell phone and (2) that prosecutorial misconduct deprived him of a fair trial. Because Clay failed to prove that he had standing to challenge the third party warrant used to obtain the cell phone records and the prosecutor's conduct was not improper or prejudicial, we affirm.
FACTS
On November 30, 2006, two masked men forcibly entered a duplex apartment occupied by Kevin and Tonja Stromseth, their three daughters, and their infant granddaughter. The taller of the two intruders held a gun to 11-year-old S.S.'s head and said, "[w]here's the money?" Kevin Stromseth woke up to his wife's and daughter's screams, ran to the living room, and tackled the armed intruder. They both fell over a coffee table and traded punches. The intruder got up and raised his gun to Kevin Stromseth's chest. When Kevin struck the intruder, the gun discharged and shot Kevin in the leg. The intruder then fired the gun two or three more times, and one of the shots struck Tonja Stromseth's arm. Both intruders then fled down the stairs and out the door.
Kevin and Tonja Stromseth were treated at the hospital for non life-threatening wounds, and S.S. had a painful lump on her head where the intruder had held the gun to it. The Stromseths gave the police a general physical description of the attackers, including their relative sizes, and the black clothes, gloves, and masks they were wearing. They were able to see enough through the masks' eye and mouth holes to tell the men were of African-American descent.
The police found a cell phone on the ground by the front steps of the Stromseth's duplex and determined that it did not belong to them. They then got a search warrant to turn on the phone, from which they learned the phone's number and the carrier, Sprint Nextel (Nextel). Contacts in the phone included a contact number marked "my wife."
Meanwhile, officers obtained a second search warrant for phone records and served it on the local Everett office of Nextel. A Nextel employee obtained the subscriber information and informed the officers that the cell phone number was in the name of Mary Clay, at 41st Street in Everett, and listed Hasan Clay and his wife, Raven Clay, as other authorized users. The investigation revealed the "my wife" number was for Raven Clay and that the last three phone calls before the home invasion were to Mrs. Clay. The records also showed that the phone was in the vicinity of the Stromseths' home the evening before the home invasion. Specifically, a Nextel employee was able to track the cell phone's location at each of a series of phone calls made that evening and determined that the cell phone moved southward approximately eight miles from an area near 41st street to the Stromseths' neighborhood.
The police then put Mary Clay's 41st Street address under surveillance and confirmed that Hasan Clay was there. They arrested him and searched his home and two vehicles. The officers found two black ski masks that looked just like those the intruders had worn and a black jacket very similar to what the Stromseths recalled the taller intruder wearing.
Clay was charged by amended information with four counts: first degree burglary, first degree assault (as to Kevin), first degree assault (as to Tonja), and second degree assault (as to S.S.). Each count carried a deadly weapon enhancement.
On the morning of the trial, Clay moved to suppress all evidence drawn from the cell phone records. He argued that the warrant was invalid because the Nextel records were kept in Reston, Virginia, which is beyond the jurisdiction of the Snohomish County District Court judge who signed the warrant. The court denied the motion, stating that Clay failed to establish standing to challenge the disclosure of the records:
The search warrant was a warrant issued to Sprint Nextel for records maintained by that company. And while I agree that an individual consumer has some privacy interest in their telephone calls and arguably some of those telephone records, I cannot tell if there is a privacy interest here that the defendant has because I don't have a copy of his subscriber agreement or whatever privacy policy Sprint Nextel may maintain. And most of the time, in my experience, whether it's credit cards, phone companies, banks, and others, there is a policy that they provide disclosure to their customers that indicates what their privacy expectations may be as a condition of their contract with the bank, the phone company, and other entities. So I'm left to assume that the representation that Mr. Clay has a constitutional privacy interest in those records maintained by Sprint and Nextel is true. And I'm not willing to make that assumption without knowing what his contractual agreement may have been with Sprint and Nextel.
I don't know if that information can be obtained. . . . And, without that, I'm certainly not willing to make an assumption that there is a privacy interest there or that he has standing to object to the company's disclosure of those records. . . .
At trial, the Stromseths testified that Clay matched the description of the taller intruder. They testified that they rented the upstairs of the duplex and that the downstairs unit was rented by "three guys and a girl," who "came and went." Their front door was the same color as the Stromseths', just off to the side on the left as one faced the house. The jury also saw evidence that Clay had bruising on his side, consistent with having fallen over a coffee table. He did not testify.
In closing, the prosecutor stated it was obvious the Stromseth family was not the intended target of this home invasion. Rather, despite having watched the house, the perpetrators must have gone to the wrong door in an attempt to rob a "cash rich drug dealer." Defense counsel did not object.
The jury convicted on counts I, II, and IV as charged and came back with a conviction on the lesser-included crime of assault 2 on count III (as to Tonja). The jury answered in the affirmative on the firearm enhancement as to all counts. Clay was sentenced within the standard range. He now appeals.
DISCUSSION
Clay first assigns error to the trial court's denial of his motion to suppress cell phone records obtained from Nextel, contending that the warrant authorizing the search of Nextel's records was invalid. But the court did not decide whether the warrant was valid; instead the court denied the motion because Clay failed to establish that he had standing to challenge it.
A trial court's decision upholding a search warrant is reviewed for abuse of discretion. The reviewing court gives great deference to the issuing magistrate. All doubts are resolved in favor of the warrant's validity. A party challenging the warrant bears the burden of proving it deficient.
State v. Maddox, 152 Wn.2d 499, 509, 98 P.3d 1199 (2004).
Id.
State v. Kalakosky, 121 Wn.2d 525, 531, 852 P.2d 1064 (1993).
State v. Fisher, 96 Wn.2d 962, 967, 639 P.2d 743, cert. denied, 457 U.S. 1137 (1982); State v. Mance, 82 Wn. App. 539, 544, 918 P.2d 527 (1996).
When a defendant seeks to suppress evidence on privacy grounds and the State contests the defendant's standing, it is the defendant's burden to establish that the search violated his own privacy rights. Constitutional privacy rights are personal rights that cannot be vicariously asserted. To determine whether a defendant is entitled to challenge a warrant, we must decide whether he or she has standing to qualify for Fourth Amendment protection. Courts have found that a person lacks standing to challenge a search of a third party if he or she had no reasonable expectation of privacy in the records sought.
State v. Cardenas, 146 Wn.2d 400, 404, 47 P.3d 127, 57 P.3d 1156 (2002), cert. denied, 538 U.S. 912 (2003); State v. Link, 136 Wn. App. 685, 692, 150 P.3d 610, review denied, 160 Wn.2d 1025 (2007).
State v. Francisco, 107 Wn. App. 247, 252, 26 P.3d 1008 (2001) (citing State v. Foulkes, 63 Wn. App. 643, 647, 821 P.2d 77 (1991)), review denied, 145 Wn.2d 1019 (2002).
Id.
Smith v. Maryland, 442 U.S. 735, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979) (no standing to challenge recording of numbers dialed from a particular phone); City of Seattle v. McCready, 124 Wn.2d 300, 877 P.2d 686 (1994) (landlord has no standing to challenge a search consented to by tenant).
Here, the court found that Clay failed to demonstrate that he had a privacy interest in the phone records that were the subject of the challenged warrant. We agree. Because Clay sought to suppress the phone record evidence on privacy grounds and the State contested his standing, Clay had the burden to establish that his rights were violated. Under these circumstances, Clay had the burden of producing the agreement with the cell phone service provider. In the absence of that evidence, the trial court properly determined that Clay failed to show that he had a reasonable expectation of privacy in phone records connected to the account, which was in the name of Mary Clay.
Cardenas, 146 Wn.2d at 404.
No Washington case addresses whether an "authorized user" of another person's cell phone account has any expectation of privacy in the account records, but the Minnesota case State v. Gail, 713 N.W.2d 851 (Minn. 2006), is instructive. There, the Supreme Court of Minnesota found the defendant, Gail, had no legitimate expectation of privacy in cell phone records connected to an account that was set up by, billed to, and paid by another individual because "Gail was a stranger to Verizon, the holder of the records at issue." Id. at 860. We need not reach this issue of first impression in Washington because Clay failed to meet his threshold burden of producing the Nextel subscriber agreement.
Clay also argues that the prosecutor's remarks in closing were so flagrant and ill-intentioned that he suffered prejudice that could only be cured by a new trial. Specifically, Clay focuses on the prosecutor's statements in closing that the Stromseths were not the intended victims and the attackers must have planned to rob drug dealers but got the wrong apartment.
Prosecutorial misconduct is grounds for reversal when actual misconduct occurs and there is a substantial likelihood that the misconduct affected the jury's verdict. The defense bears the burden of establishing both the impropriety and prejudicial effect. This court views alleged misconduct "in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given."
State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991).
Id.
State v. Graham, 59 Wn. App. 418, 428, 798 P.2d 314 (1990).
But absent a proper objection to the comments at trial, request for a curative instruction, or motion for mistrial, we will not reverse a verdict on appeal unless the prosecutor's behavior was "so flagrant and ill intentioned that no curative instructions could have obviated the prejudice engendered by the misconduct." A prosecutor's remarks in closing are flagrant and highly prejudicial when they deliberately appeal to the jury's passion and prejudice and encourage a verdict that was not based on properly admitted evidence. But counsel "must be accorded a reasonable latitude in argument to draw and express inferences and deductions from the evidence." Failure to request a curative instruction or move for a mistrial "strongly suggests to a court that the argument or event in question did not appear critically prejudicial to an appellant in the context of the trial." Clay's prosecutorial misconduct claim fails. While it is true that the prosecutor's theory was factually weak, it provided a possible explanation for why armed robbers invaded a family home and demanded "the money." And even if that inference did not flow directly from the evidence, the prosecutor's comments were not flagrant and inflammatory. If they were unfair to anybody, it was to the Stromseth's neighbors, not to Clay. Accordingly, Clay fails to demonstrate that the prosecutor's remarks were so flagrant and prejudicial to warrant reversal despite his failure to object. He also fails to show that a curative instruction would not have obviated any potential error.
State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988).
Id. at 507-08.
State v. Swan, 114 Wn.2d 613, 662-63, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046 (1991).
Id. at 661.
See A.C. ex rel. Cooper v. Bellingham Sch. Dist., 125 Wn. App. 511, 525, 105 P.3d 400 (2004) (when a party who prevails on a motion in limine later suspects a violation of that ruling, that party has a duty to bring the violation to the court's attention to allow the court to decide what remedy, if any, to direct).
For the reasons stated above, we affirm Clay's conviction.