IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) No.77175

-2

-I ) Respondent, )

) DIVISION ONE v

. )

) ORDER WITHDRAWING WILLIAM PHILLIP, JR., ) OPINION AND SUBSTITUTING ) OPINION ) Appellant. )

) Thecourthasdeterminedthatthe opinion in the above

-entitled casefiled on July 1, 2019, shall be withdrawn and a substitute published opinion be filed. Now, therefore, it is hereby ORDEREDthatthe opinionfiled onJuly 1, 2019, is withdrawn and a substitutepublishedopinionshallbe filed

.IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, 

### ) No. 77175-2-I

Respondent, 

### ) DIVISION ONE v. 

### )

) WILLIAM PHILLIP, JR., 

### ) PUBLISHED OPINION

Appellant. 

### ) FILED: August 5, 2019

MANN, A.C.J.

— In the digital age thatwe live in, cell phones are now a “pervasive and insistent part ofdaily life.”1 Butwith the advent ofthis newtechnology,

comes the potential for its abuse. Cell phone data, forexample, represents a new frontier in police investigative tactics. Cell-site location information (CSLI) is highly detailed data, which can create a historical map ofwhere a particularcell phone traveled during a set period oftime. Based on this technology, police are able to look back in time and find out preciselywhere anyone was at a given time, buttressed only bythe retention policy ofthe individual’s wireless provider.

Riley v. California, 573 u.s. 373, 385, 134 5. Ct. 2473, 2484, 189 L. Ed. 2d 430 (2014).No. 77175-2-1/2 ~

The protection against abuse ofthis highly detailed and personal information is through a familiar mechanism: the constitutional requirements ofa warrant. Awarrant, supported by probable cause and meeting the particularity requirement, provides an individual with the constitutionally required protections against privacy invasions bythe state. William PhiIHp sought discretionary review ofa trial court orderapproving a subpoena issued to Phillip’s wireless provider requiring the providerto release Phillip’s CSLI records. Because the State failed to seek issuance ofa warrant, and State and trial courtfailed to recognize Phillip’s privacy interest in the CSLI records, we reverse, vacate the subpoena, and remand forfurther proceedings.2

In May 2010, Phillip lived in Portland, Oregon.3 Seth Frankel lived in Auburn, Washington. Frankel’s girlfriend, Bonnie Johnson, lived part-time with Frankel in Auburn and part-time in Portland where she worked. On May21, 2010, Johnson became concerned when she was unable to reach Frankel by phone. Johnson contacted Frankel’s neighbor, who wentto Frankel’s house and observed a body lying on the floor. The Auburn police department responded and discovered Frankel was dead due to a knife wound to his throat. An 18-inch blackzip tie was attached to one of Frankel’s wrists and anotherzip tie was found near his body. Frankel’s house was locked and appeared orderly otherthan the area immediately

2 Phillips moved to strike the State’s statement of additional authorities. We deny the motion to strike.

~ The background facts are taken from this court’s opinion in State v. Phillip, No. 72120-8-I (Wash. Ct. App. Aug. 29, 2016) (unpublished), http://www.courts.wa.gov/opinions/pdf/721208.pdf -2-No. 77175-2-1/3

surrounding Frankel’s body. A medical examinerestimated Frankel’s time ofdeath as between 8:00 p.m. May21 and 4:30 a.m. May 22, 2010. Overthe next few days, Auburn police interviewed Johnson multiple times. During these interviews and a consensual search ofJohnson’s cell phone, police discovered that Johnson had been in frequent contact bytelephone with Phillip and another man from Sacramento, California. Text messages between Johnson and Phillip appeared flirtatious.4 On May 25, 2010, atthe request ofthe Auburn police, a Portland police officer visited Phillip. Withouttelling him that Johnson was dead orthat he was investigating a murder, the officer asked if Phillip knewJohnson. Phillip stated that Johnson was a friend. When asked if he had been to Auburn recently, Phillip responded that he wanted to exercise his right to counsel. Overthe course oftheir investigation, the Auburn police obtained a total offive warrants. First, on May 27, 2010, the Auburn Police obtained a warrant requiring AT&T to provide them with Phillip’s CSLI records. The affidavitforthe May 2010 warrant described the crime scene, that Johnson and Frankel were in a relationship, and that Johnson continued to speakto her previous boyfriend, Phillip. On June 9, 2010, the police visited the convention centerwhere Phillip worked. Phillip’s supervisor explained that Phillip commonly used zip ties in hisjob. The zip ties used at Phillip’s workwere identical to the zip ties found in Frankel’s home. The police received Phillips CSLI records from AT&T on June 20, 2010. The records revealed that on the day of Frankel’s murder Phillip traveled from Portland,

“Auburn police eliminated the California man as a potential suspect because his cell phone records revealed thatatthe time Frankel was murdered, the man was in the Sacramento, California area. -3-No. 77175-2-1/4

Oregon to Auburn, Washington. Phillip remained in Auburn—attimes within blocks of Frankel’s home—until approximately 9:00 p.m., and then traveled backto Portland. On June 22, 2010, the police obtained a warrant to search Phillip’s apartment, vehicle, and person. While executing thatwarrant, the police seized Phillips cell phone andjournal. In hisjournal, Phillip expressed that he was obsessed with Johnson and that Frankel was not good enough for her. Auburn police then spoke with Katy Sanguino, Phillip’s mother. She explained that Phillip, who only owned a motorcycle, had borrowed her carfrom May 21 to May 22, 2010. Sanguino gave the police consentto search hervehicle, where police found traces of blood on the inside driver’s door handle. In August of2010, the Washington State Patrol Seattle Crime Laboratory determined that a bloodstained towel from the crime scene revealed two different deoxyribonucleic acid (DNA) types. The firsttype was from Frankel, the second was from an unknown male. On November 5, 2010, the police obtained a warrant for Phillip’s DNA. That DNA sample revealed that Phillip was a possible contributorofthe second DNA sample and only about 1 in 2.2 million individuals could have contributed the sample. Afterthe DNA results came in, police arrested Phillip and charged him with first degree murder. The police’s fourth warrant came on January 25, 2012, and allowed the police to search the physical contents of Phillip’s cell phone. In March 2012, Wyman Yip, the King County Prosecutor assigned to Phillip’s case, asked the Auburn police to seek a

more thorough warrant for Phillip’s CSLI records. Yip stated that the May 2010 warrant

was defensible, but the affidavit could have included otherfacts thatwere known at the

-4-No. 77175-2-1/5

time. Police prepared a new affidavitthat incorporated the affidavit used to obtain the May 2010 warrant and provided furtherdetails aboutthe crime scene and Johnson’s relationship with Phillip. The trial court issued the warrant for Phillips CSLI records on March 22, 2012. Pre-trial, Phillip moved to suppress all evidence obtained during the execution of the search warrants. The trial court denied the motion. Although the courtfound that the May 2010 warrantwas not supported by probable cause, it determined thatthe March 2012 warrantwas supported by probable cause and metthe requirements ofthe independent source doctrine. The trial court also determined thatthe remaining warrants were valid. Phillip was tried forfirst degree murder. After his firsttrial ended in a hung jury, a second jury convicted Phillip of Frankel’s murder. Phillip appealed his conviction to this court. On appeal, we concluded thatthe facts in the affidavits used to obtain the May 2010 and March 2012 warrants for Phillip’s CSLI records failed to provide a sufficient factual basis from which to inferthat evidence ofthe crime would likely be found on Phillips CSLI records. As we explained: The March 2012 affidavit incorporates the May 2010 affidavit and thus includes the earlier affidavit’s briefdescription ofthe crime scene, identification ofJohnson as Frankel’s girlfriend, information that Johnson asked the neighborto check on Frankel, and description of Phillip as a man with whom Johnson had a close relationship. The March 2012 affidavit provides furtherdetails aboutthe crime scene, including the fact that doors were locked and that, exceptforthe area immediately surrounding the body, the apartment appeared untouched. It also includes Johnson’s statements that Phillip had served in the military, he was the only person she knewwho had ever spoken ill of Frankel, he was the only person she could think ofwho would wantto hurt Frankel, and he was extremely upsetwhen she broke up with him. The affidavit reports

-5-No. 77175-2-1/6

Phillips statementto the Portland police that Johnson was “just a friend” and his invocation ofthe rightto counsel when asked if he had ever been in Auburn. The affidavit includes copies oftext messages between Johnson and Phillip in the week of Frankel’s death. The text messages appear flirtatious. In one message, Phillip refers to Frankel as an “unhot old man.” In Johnson’s reply, she tells Phillip notto speak about Frankel like that. The text messages do not express any intentto harm Frankel. The facts in the affidavit indicate that Phillip had a close relationship with Johnson and frequently communicated with her by telephone. Johnson said that Phillip was the only person she could think ofwho had spoken ill of Frankel and who might wantto harm Frankel. But the only evidence supporting these assertions was Phillips text referring to Frankel as an “unhot old man” and Johnson’s claim that Phillip was very upsetwhen she broke up with him. These facts at most suggestthat Phillip may have beenjealous of Frankel’s relationship with Johnson. Butthey do not create a reasonable inference that Phillip was involved in Frankel’s death orthat evidence relating to Frankel’s death would likely be found in Phillip’s cell phone records. The affidavit also establishes that Phillip did notwantto discuss with police whether he had traveled to Auburn. This fact may have indicated to police thatfurther investigation was warranted, but it does not establish a connection sufficientto inferthat evidence ofthe crime would likely be found in Phillip’s cell phone records. “Absent a sufficient basis in factfrom which to conclude evidence of illegal activity will likely be found atthe place to be searched, a reasonable nexus is not established as a matterof law.” Them, 138 Wn.2d at ~ See, ~ State v. Smith, 93 Wn.2d 329, 352, 610 P.2d 869 (1980); State v. Helmka, 86 Wn.2d 91, 92-93, 542 P.2d 115 (1975); State v. Patterson, 83 Wn.2d 49, 52, 61, 515 P.2d 496 (1973). The State argues thatthe facts in the affidavit give rise to a chain of inferences supporting probable cause. The State argued belowthat Phillip’s relationship with Johnson gave him a motive to harm Frankel, Phillip could have obtained a keyto the apartment from Johnson, and Phillip thus may have had access to Frankel. The State furtherargued that Johnson and Phillip may have been jointly involved in the crime and that ifeither ofthem was the killer, evidence ofthe crime would likely be found in Phillip’s phone records. These are mere speculations. The facts in the affidavit provide no basis for inferring that Johnson and Phillip conspired to harm Frankel and that

~ State v. Them, 138 Wn.2d 133, 977 P.2ci 582 (1999). -6-No. 77175-2-1/7

evidence ofthis conspiracywould be found in Phillips phone records. To the contrary, in the text messages, Johnson defends Frankel and instructs Phillip notto speak badly of him. Conclusory statements, speculations, and suspicions do not provide a factual basis that supports probable cause. Them, 138 Wn.2d at 147. Phillip, slip op. at 9-12 (internal footnote omitted). Accordingly, we reversed Phillip’s conviction because the warrants for Phillips CSLI records were not supported by probable cause.6 On remand, the State moved the trial courtfor issuance ofa subpoena duces tecum directed to AT&Tfor Phillip’s CSLI records. Ratherthan offering a new affidavit in support ofthe subpoena, the State filed a memorandum that attached six previously filed affidavits including: (1) the December 8,2010, certification fordetermination of probable cause that included information from the tainted May 2010 CSLI records, (2) the affidavitforthe May 22, 2010, search warrant forthe CSLI records thatthe trial court held insufficient, (3) an unsworn June 22, 2010, affidavitforthe warrant to search Phillip’s apartment, vehicle, and person, that included information from the tainted May 2010 CSLI records, (4) the affidavitforthe November 5, 2010 warrantfor Phillips DNA, (5) the affidavit forthe January 25, 2012 warrant for Phillips cell phone that included information from the tainted May 2010 CSLI record, and (6) the affidavitforthe March 22, 2012, renewed warrantfor Phillip’s CSLI records that included information from the tainted CSLI record AND that this court held insufficient. In its accompanying legal memorandum, the State recited the evidence contained in the attached affidavits, including a recitation ofthe information contained in

6We concluded thatthe three additional warrants police obtained during their investigation of Phillip were validly based on evidence independentfrom the evidence collected through the two invalid warrants. -7-No. 77175-2-1/8

the tainted CSLI records. While the State’s memorandum urged the trial courtto apply

a probable cause standard for issuance ofthe subpoena, the memorandum also incorrectly asserted that ourdecision in Phillip “noted thatthe facts established thatthe State would have soughtthe cell phone usage records via the second warrant even without knowledge ofwhatthe [tainted CSLI} records showed.”7 The State’s memorandum further argued that, while itwas requesting a subpoena, it should not need eithera subpoena or probable cause because Phillip did not have a legitimate expectation of privacy in the cell phone records. Finally, the State argued thatthe

~ The State’s memorandum includes the following quote from ouropinion in Phillip to argue that awarrantwas unnecessary: Police obtained the cell phone records from AT&T on June 20. The facts in the affidavit amply demonstrate that Phillip was a person of interest underactive investigation priorto that date. We conclude that based on the information gathered in their investigation prior to June 20, the police had probable cause to believe Phillip was involved in the crime and would have soughtthe additional warrants even without knowledge of [whatthe AT&T cell phone usage records showed]. (Paraphrase in original memorandum) (quoting Phillip, slip op. at 16). We disagree with the State’s interpretation ofourdecision. We specifically stated: The trial court did not err in admitting the evidence obtained from executing the warrant on Phillips apartment and vehicle. Underthe same analysis, the November 2010 warrant authorizing search of Phillips DNA was also valid. The warrant affidavit incorporates the previous warrants and additionally states thatthe bloodstained towel recovered from the murderscene had yielded a partial DNA sample from an unknown male.5 Police did not have a known sample of Phillips DNAto compare with the sample obtained from the crime scene. We conclude that the trial court did not err in denying Phillips motion to suppress the evidence seized in executing the warrants for Phillips apartment, motorcycle, email, cell phone, person, and DNA. But because the trial court erred in denying Phillips motion to suppress his phone records and the cell phone records related to the number Phillip dialed on the night ofthe crime, we reverse and remand forfurther proceedings. Phillip, slip op. at 16-17 (emphasis added). Contraryto the State’s representation to the trial court, ouropinion only stated that the untainted evidence supported the warrants for Phillips DNA, and to search his apartment, person, vehicle and cell phone. Our opinion did not state or implythat the untainted evidence supported a warrant for Phillips CSLI records.

-8-No. 77175-2-1/9

independent source doctrine applied. The State asserted that Phillip ‘implicitly held that the [cell phone] records would have been admissible underthe independent source rule ifthere had been sufficient probable cause setforth in the affidavit.” The trial court granted the subpoena for Phillip’s CSLI records on July 24, 2017. In doing so, the court determined that Phillip had a lower expectation of privacy in the historic cell tower records than he did in his personal cell phone and apartment. The trial court subsequentlygranted Phillip’s motion to staythe execution ofthe subpoena, and certified its decision for interlocutory appeal. RAP 2.3(b). We granted discretionary review.

Phillip argues thatthe subpoena authorizing release of his CSLI records violates article ~, section 7 ofthe Washington Constitution and the Fourth Amendmentto the U.S. Constitution. We agree. Article I, section 7 ofthe Washington Constitution provides that “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Article 1, section 7 “provides greater protection to individual privacy rights than the Fourth Amendment.” State v. Betancourth, 190 Wn.2d 357, 366, 413 P.3d 566 (2018). “Whereas the Fourth Amendment prohibits ‘unreasonable searches and seizures,’ article 1, section 7 of our State constitution prohibits any invasion ofan individual’s right to privacywithout ‘authority of law.” Betancourth, 190 Wn.2d at 366. Further, “[un contrastto the Fourth Amendment, article I, section 7 ‘recognizes an individual’s rightto privacywith no express limitations.” ki. (quoting State v. Winterstein, 167 Wn.2d 620, 631-32, 220 P.3d 1226 (2009)).

-9-No. 77175-2-I/IC

“Unlike its federal counterpart, Washington’s exclusionary rule is ‘nearly categorical.” ki. (quoting State v. Alfana, 169 Wn.2d 169, 180, 233 P.3d 879 (2010). Also in contrastwith the Fourth Amendment, Washington does not allow a “good faith”

or “reasonableness” exception to the exclusionary rule. “Under article I, section 7, the requisite ‘authority of law’ is generally a valid search warrant.” Betancourth, 190 Wn.2d at 367. A. The parties devote the majority oftheir argument to the issue ofwhetherthe trial court properly applied the independent source doctrine—an exception to exclusionary rule—to authorize issuance ofthe July 2017 subpoena. We do not address application ofthe independent source doctrine because the subpoena fails as a matter of law. Underthe Supreme Court’s recent decision in Carpenter, an individual maintains an expectation of privacy in CSLI records, and the wayto obtain such records is through a warrant. CSLI records include precise data that can be used to create a historical map of where a particular cell phone traveled during a set period oftime. As described bythe United States Supreme Court in Carpenterv. United States,

— U.S._, 138 5. Ct. 2206, 2211-12,, 201 L. Ed. 2d 507 (2018): There are 396 million cell phone service accounts in the United States— fora Nation of 326 million people. Cell phones perform theirwide and growing variety offunctions by connecting to a set of radio antennas called “cell sites.” Although cell sites are usually mounted on a tower, they can also be found on light posts, flagpoles, church steeples, orthe sides of buildings. Cell sites typically have several directional antennas that divide the covered area into sectors. Cell phones continuously scan their environment looking forthe best signal, which generally comes from the closest cell site. Most modern

-10-No. 77175-2-I/li

devices, such as smartphones, tap into the wireless network several times a minute whenevertheir signal is on, even ifthe owner is not using one of the phone’s features. Each time the phone connects to a cell site, it generates a time-stamped record known as cell-site location information (CSLI)

. Wireless carriers collect and store CSLI fortheir own business purposes, including finding weak spots in their network and applying “roaming” charges when anothercarrier routes data through their cell sites. In addition, wireless carriers often sell aggregated location records to data brokers, without individual identifying information ofthe sort at issue here. While carriers have long retained CSLI forthe start and end of incoming calls, in recentyears phone companies have also collected location information from the transmission oftext messages and routine data connections. Accordingly, modern cell phones generate increasingly vast amounts of increasingly precise CSLI. In Carnenter, the State sought and obtained court orders compelling two wireless carriers to disclose CSLI records for Carpenter’s cell phone covering a time period where Carpenterwas suspected of committing multiple robberies. The CSLI records confirmed that Carpenter’s phone was in the vicinity ofthe charged robberies atthe times theywere committed. The Court ofAppeals forthe Sixth Circuit affirmed admission ofthe records attrial, holding that Carpenter lacked a reasonable expectation of privacyforthe CSLI records because cell phone users voluntarily convey cell location data to their carriers in orderto establish service. United States. v. Carnenter, 819 F.3d 880, 888 (6th Cir. 2016). The Supreme Court granted certiorari and reversed. In doing so, the Courtfirst addressed whether, as argued by the State in this case, an individual maintains an expectation of privacy in CSLI records. In answering in the positive, the Court explained that CSLI records “provide[

## I an intimate window into a person’s life, revealing not only his particular movements, butthrough them his familial, political, professional, religious, and sexual associations.” Carpenter, 138 S. Ct. at 2217. “With justthe click ofa

—11—No. 77175-2-1/12

button, the Government can access.

. . deep repositor[ies] of historical location information at practically no expense.” Carpenter, 138 S. Ct. at 2218. Indeed, CSLI records actually “present even greater privacy concerns than the GPS monitoring ofa vehicle” as considered in United States v. Jones, 565 U.S. 400, 132 5. Ct. 945, 181 L. Ed. 2d 911(2012), because “a cell phone—almost a feature of human anatomy—tracks nearly exactlythe movements of its owners.” “A cell phone faithfullyfollows its owner beyond publicthoroughfares and into private residences, doctor’s offices, political headquarters, and other potentially revealing locales.” Carpenter, 138 S. Ct. at 2218. “When the Government tracks the location ofa cell phone it achieves near perfect surveillance.

. . [and] the retrospective quality ofthe data here gives police access to a category of information otherwise unknowable.” Carpenter, 138 5. Ct. at 2218. The Courtfurther explained that “[T]he Government can nowtravel back in time to retrace a person’s whereabouts, subject onlyto the retention policies ofthe wireless carriers.” Carpenter, 138 S. Ct. at 2218. “Whoeverthe suspectturns outto be, he has effectively been tailed every moment ofevery dayfor.

. . years, and the police may—in the Government’s view—call upon the results ofthat surveillance without regard to the constraints ofthe Fourth Amendment.” Carpenter, 138 S. Ct. at 2218. The Court concluded that accessing CSLI data from wireless carriers invades an individual’s “reasonable expectation of privacy in the whole of his physical movements.” Carpenter, 138 S. Ct. at 2219. And, as a result, [b]efore compelling a wireless carrierto turn over a subscribers CSLI, the Government’s obligation is a familiar one—get a warrant.” Carpenter, 138 S. Ct. at 2221.

-12-No. 77175-2-1113

The Court’s concerns in Carpenter applywith even more persuasive force here. Just as in Carpenter, Phillip’s cell phone data provided the State an intimate view into Phillip’s life. Similarto Carpenter, Phillips cell phone data preciselytracked his movements. Just as in Carpenter, the State traveled back in time to retrace Phillip’s whereabouts: the State effectivelytailed Phillip every moment, and the police may—in the State’s view—call upon the results ofthat surveillance without regard to the constraints ofarticle I, section 7. And just as in Carpenter, this court is ‘obligated—as ‘[s]ubtler and more far-reaching means of invading privacy have become available to the Government’—to ensure thatthe ‘progress ofscience’ does not erode Fourth Amendment protections.” Carpenter, 138 S. Ct. at 2223 (quoting Olmstead v. United States, 277 U.S. 438, 473-74, 48 S. Ct. 564, 72 L. Ed. 944 (1928) (Brandeis, J., dissent), overruled in part by Bergerv. State of NewYork, 388 U.S. 41, 87 S. Ct. 1873, 18 L. Ed. 2d 1040 (1967)). Yet even more concerning is thatthe primary concern of article I, section 7 is to protect privacy. “[A] disturbance of private affairs must satisfy article I, section 7’s authority of law requirement.” State v. Miles, 160 Wn.2d 236, 249, 156 P.3d 864 

### (2007).8 Article I, section 7 “recognizes an individual’s rightto privacywith no express limitations[,]” Winterstein, 167 Wn.2d at 631-32, and “the paramount concern ofour state’s exclusionary rule is protecting an individual’s right of privacy.” Betancourth, 190 Wn.2d at 367.

8While in Miles I, the Supreme Court concluded that a “search of personal banking records withoutajudicially issued warrantorsubpoena.

. . violated article I, section 7[,]” 160 Wn.2d at252 (emphasis added), it did not considerthe validity ofa subpoena versus a warrant when the State attempted to invade an individual’s reasonable expectation of privacy, especially in consideration ofthe U.S. Supreme Court’s opinion in Carpenter, 138 S. Ct. at2221. -13-No. 77175-2-1/14

The State argued belowthat Phillip had no expectation of privacy in the CSLI records because he voluntarily shared this data with his cell phone provider. Based on the State’s argument, the trial court agreed that itwas applying a lowerthreshold of protection for cell phone data: “[olne could certainly hold that Mr. Phillip’s expectation of privacy in his personal cell phone and apartment is higherthan his expectation of privacy in the historic cell tower location records.” The State’s argument and trial court’s determination is in direct odds with the holding in Carrenter. This was in error as Phillip has a reasonable expectation of privacy in his cell phone records, which was seriously impeded when the police obtained those records without a valid warrant or probable

cause. B. In addition to misstating Phillip’s reasonable expectation of privacy in his CSLI records, the State also failed to applyfor and obtain a warrant based on probable

cause. The State argues that itwasjustified in requesting a subpoena using a probable

cause standard because the probable cause standard, regardless ofwhat mechanism it is attached to, sufficiently satisfied the authority of law requirement ofarticle I, section 7. Because ofthe expectation of privacy associated with CSLI records, we disagree. The Stateattempts to distinguish Carnenter by arguing thatthe Supreme Court did not saythat a warrantwas required in all situations, but instead said that a subpoena or court order based on a reasonable grounds standard was insufficient. While the State is correctthatthe court order in Carnenterwas based on a reasonable ground standard, this does not diminish the Supreme Court’s mandate: “Before compelling a wireless carrierto turn over a subscriber’s CSLI, the Government’s

-14-No. 77175-2-1/15

obligation is a familiarone—ciet a warrant.” Carpenter, 138 S. Ct. at 2221 (emphasis added). And as the Court furtherexplained “this Court has never held that the Government may subpoena third parties for records in which the suspect has a reasonable expectation of privacy.” ki. The State also cites to Garcia-Salqado, 170 Wn.2d 176, 240 P.3d 153 (2010), as support for its argumentthatthe subpoena here was the functional equivalent ofa warrant. While in Garcia-Salciado, our Supreme Court held that “the warrant requirement ofthe Fourth Amendment and article I, section 7 may be satisfied by a court order[,]” 170 Wn.2d at 186, we disagree with the State thatthis ends our analysis. First, the United States Supreme Court established a clear mandate that in orderto obtain cell phone records the government must get a warrant. Carpenter, 138 5. Ct. at 2221. And as Garcia-Salc~ado was decided eightyears before Carpenter, our Supreme Court did not consider its analysis ofjudicial orders in light of Carpenter. But more importantly, our Supreme Court in Garcia-Salgado did notfind that a court order perse metthe article I, section 7 authority of law requirement. Instead, the courtfound that “[a] court order~j~yfunction as a warrant as long as it meets constitutional requirements.” Garcia-Salciado, 170 Wn.2d at 186 (emphasis added).9 For a court orderto sufficiently replace a warrant, the order must be entered by a neutral and detached magistrate, must describe the place to be searched and items to be seized; and must be supported by probable cause based on oath or affirmation, and there must be a clear indication thatthe desired evidence will be found, the method of intrusion

~ This same concern undercutsthe State’s citation in its statement ofadditional authorities to Statev. Reeder, 184Wn.2c1 805, 817, 365 P.3d 1243 (2015). Reederdoes not hold that a subpoena per se meets the authority of law requirement, but ratherthat because “[t]he Fourth Amendment does not protect information in bank records,” and therefore probable cause was not required to obtain the bank records in thatcase, the specificsubpoena soughtthere metthe authority of law requirement. ~ Reeder, 184 Wn.2d at 824-25. -15-No. 77175-2-1/16

must be reasonable, and the intrusion must be performed in a reasonable manner. Garcia-Salciado, 170 Wn.2d at 186. The State did not meetthis standard. The State failed to support its revised subpoena requestwith an updated affidavit of probable cause. Instead, the State simply attached its previous affidavits. Four ofthose six affidavits submitted included the specific details of, and argument about, Phillip’s illegally obtained cell phone records.1° Moreover, this court held in Phillir thatthe two affidavits used to obtain the CSLI records failed to demonstrate probable cause. To be constitutionallyvalid, a warrant must not only be supported by probable cause but it must also specificallytie the facts known to the State to the specific evidence it seeks to obtain. ~ Garcia Salgado, 170 Wn.2d at 186. The State made no effortto connectthe facts known to the State to the need for Phillip’s CSLI records. The trial courtthen followed the State’s recommendation and granted the requested subpoena. But the trial court’s order also failed to include any particularized finding ofwhatfact supported a conclusion thatthe State had met its probable cause burden for Phillips cell phone records. When combined with the trial court’s mistaken beliefthat Phillip had a reduced expectation of privacy in his CSLI records, it’s impossible, from this record, to determine whetherthe State had probable cause, compliantwith the independent source doctrine, to obtain a warrantfor Phillips CSLI records.

10The State also cites to Read, 147 Wn.2d at245, forthe contention that because a trial court judge is often tasked with disregarding inadmissible evidence itwas not improperforthe Stateto include these details in its subpoena request. This argument misses this point. It is notthe factthatthe State included this illegallyobtained information that makes its subpoena requestfaulty but ratherthatthe State failed to specifically connectthe information it legally obtained to its need for Phillips CSLI records. -16-No. 77175-2-1117

We reverse, vacate the subpoena, and remand forfurther proceedings.



# I~LJ

WE CONCUR:

-17-