IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON, Respondent,

v. WILLIAM PHILLIP, JR., Appellant. No. 72120-8-1 DIVISION ONE

UNPUBLISHED OPINION FILED: August 29. 2016 

### Spearman, J. — Asearch warrant may only issue ifthe underlying affidavit 

### provides facts and circumstances sufficient toconclude that the defendant is probablyinvolved incriminal activity and that evidence of the criminal activity is likely to be found in the place to be searched. While a magistrate may draw reasonable inferences from facts in the affidavit, mere speculation is not 

### sufficient to give rise to probable cause. In this case, William Phillip challenges the trial court's denial of his motion to suppress, arguing that the warrant 

### authorizing search of his cell phone records was invalid. Because we conclude thatthe warrant was not supported by probable cause, we reverse and remand. 

### Phillip also challenges the trialcourt's denial of his motion to suppress evidenceNo. 72120-8-1/2 

### seized pursuant to otherwarrants and his motion to dismiss based on CrR 8.3(b). These claims are without merit and we reject them. FACTS 

### William Phillip lived inPortland, Oregon. Seth Frankel lived in Auburn, 

### Washington. Frankel's girlfriend, BonnyJohnson, lived part-timewith him in Auburn and part-time in Portland where she worked. Johnson became worried when she was unable to reach Frankel by phone 

### on May 21, 2010. On May 22, Johnson called a neighbor and asked him to check on Frankel. When no one responded to a knock on Frankel's front door, the 

### neighbor looked in a window and saw a body on the floor. 

### Policeresponded to the neighbor's 911 call and found Frankel dead of a knife wound to his throat. Frankel had also sustained blunt force injuries to his 

### head and knifewounds to his hand and leg. There was an 18-inch black zip tie
on one ofFrankel's wrists and another zip tie near him. Otherthan the area 

### immediately surrounding the body, Frankel's apartment was orderly and valuables appeared untouched. Amedical examiner estimated Frankel's time of death as between 8:00 p.m. May 21 and 4:30 a.m. May 22. Police interviewed Johnson the day they discovered the body. They 

### questioned Johnson about herrelationship with Frankel and asked her about exboyfriends. Johnson identified Phillip, who went by the name "JR," as someone she had dated. Verbatim Report ofProceedings (VRP) (3/26/14) at 70-71. When asked ifshe could think ofanyone who might want to hurt Frankel, Johnson saidNo. 72120-8-1/3 "I cannot. You know the close[...], Ifeel terrible saying this because Istill consider him a friend and I, Idon't think he's capable of itbut JR is the only one 

### that has ever said anything ill ofSeth [Frankel] to me. . .." Clerk's Papers (CP) at
227. 

### Johnson gave police permission to search her cell phone. Officers found that Johnson had been infrequent contact by phone with Phillipand another man, later identified as James Whipkey. Text messages between Johnson and Phillip appeared flirtatious. 

### At the request of the Auburn policedepartment, a Portland officervisited 

### Phillip on May 25, 2010. Withouttelling Phillip that Frankel was dead or stating that he was investigating a murder, the officerasked Phillip ifhe knewJohnson. 

### Phillip stated that Johnson was afriend. When the detective asked Phillip ifhe had been to Auburn recently, Phillip responded that he wanted to exercise his right to counsel. 

### Auburn police interviewed Johnson again on May 26. An officer asked if there was anybody in her life whowould want to get Frankel out of the way. Johnson replied "All Ican think of is JR ... Ican't think of anybody else that would 

### hurt Seth [Frankel] like that." CP at 231.When the officerfollowed up by asking "You think JR would hurt him?" Johnson stated that Phillipwas very upset when 

### she broke upwith him. CP at 231-32. Johnson said that itscared her to think Phillip might have something to do with Frankel's murder, but the more she 

### thought about it, the more she could not believe that he would do it.No. 72120-8-1/4 On May 27, the Auburn police department requested a warrant to obtain records from Phillip's cell phone provider. The affidavit brieflydescribes the crime scene, states that Johnson was Frankel's girlfriend, and states that Johnson requested a welfare check on Frankel before his body was discovered. The affidavit states that Johnson had a significant relationship with Phillip and described him as someone she had dated. Ajudge approved the warrant. On May 28, Auburn detectives visited Phillip in Portland. The officers noticed that Phillip's right hand was bruised and part of itwas covered with a blood-stained Band-Aid. Phillipstated that he had injured his hand at work. When asked about Johnson, Phillipindicated thatthe lasttime he had seen or talked to Johnson was about a month earlier. He latertold officers that he had received a 

### text fromJohnson the previous weekend. When an officerasked if he had ever been to Auburn, Phillip said he wanted to speak to an attorney. Detectives interviewed Phillipagain on June 2. Officers noticed that he tried to conceal a 1-2 inch cut on his right hand. The officers asked Phillip to 

### voluntarily provide a DNA sample via buccal swab. Phillip denied consentto the buccal swab and refused to answer questions about the last time he was in Auburn. On June 9, detectives visited the convention centerwhere Phillipworked. 

### Phillip's supervisor stated that Phillip and other employees commonly used zip ties as part of their job duties. The zip ties used at the convention centermatched the ties found inFrankel's apartment. Acoworkerconfirmed that Phillip hadNo. 72120-8-1/5 injured his hand at work, but stated that the injury did not break the skin or cause bleeding. Auburn police received Phillip's cell phone records from AT&T on June 20, 2010. The records included the locations ofthe cell towers pinged by Phillip's phone. On May 21, the day ofFrankel's murder, Phillip's phone accessed cell towers along the I-5 corridor heading north from Portland. Phillip's phone pinged cell towers in Auburn from about 7:00 until 9:00 p.m. The cell tower locations then track Phillip returning to Portland. On June 22, Auburn police obtained a warrant to search Phillip's 

### apartment and motorcycle. They seized Phillip's mobile phone and a journal. In 

### the journal, Phillip wrote that he was "obsessed" with Johnson and that Frankel
was not good enough for her. VRP (4/8/14) at 104, 108-09. 

### InAugust 2010, detectives learned that a bloodstain from the murder


### scene had yielded two different DNA samples. The firstsample belonged to Frankel. The second sample was from an unknown male. InNovember 2010, a 

### judge granted the detectives a warrant to obtain Phillip's DNA via buccal swab. Analysis of the sample determined that Phillip was a possible contributor of the second sample. Onlyabout 1 in 2.2 million individuals could have contributed the 

### sample and Phillip was within that set. Phillip was arrested and charged with first degree murder. 

### InJanuary 2012, officers obtained a warrantto search the contents of Phillip's mobile phone. Detective Blake reviewed the data from the phone. BlakeNo. 72120-8-1/6 discovered that Phillip submitted a request for information through a Portland law firm's website several hours before Frankel's body was discovered. Phillip asked ifthe firm had attorneys that practiced inWashington and stated that he was seeking representation for an alleged violent crime that occurred inWashington State. An attorney responded to Phillip by email later that morning and told him they did not practice inWashington but they may be able to provide a referral. Phillip specified thatthe alleged crime took place in King County. Detective Blake summarized this information in an email to the prosecutor, 

### Wyman Yip. The following week, Yipasked Blake to forward the actual emails. The State did not offer the emails into evidence. In March 2012, Yip asked Blake to prepare a more thorough warrant 

### affidavit for Phillip's cell phone records. Yipstated that the May2010 warrant was defensible, butthe affidavit could have included many otherfacts that were 

### known at the time. Police prepared an affidavitthat incorporated the May2010 affidavit and provided further details aboutthe crime scene and Johnson's relationship with Phillip. Ajudge approved the warrant. 

### Prior to trial, Phillip moved fordismissal under CrR 8.3. He argued that the 

### government committed misconduct by reading Phillip's email exchange with the Portland law firm and that the misconduct was presumed prejudicial. The trial court found that the State had rebutted the presumption ofprejudice and denied Phillip's motion.No. 72120-8-1/7 Phillip also moved to suppress all evidence obtained during the execution of search warrants. The trial court denied the motion. The court found that the May 2010 warrant for Phillip's phone records was invalid because itwas not supported by probable cause. Butthe courtfound that the March 2012 warrant for the phone records was supported by probable cause and met the 

### requirements of the independent source doctrine. The trial court determined that the otherwarrants, evaluated without consideration ofany information obtained from the faulty May 2010 warrant, were valid. 

### The juryfound Phillip guilty offirst degree murder and he appeals.1 DISCUSSION 

### We firstaddress Phillip's challenge to the trialcourt's denial of his CrR 8.3 motion to dismiss. He asserts that the State violated his right to confidential 

### communication with an attorney when itread his email exchange with the Portland law firm. 

### Eavesdropping on an attorney-client conversation is presumptively 

### prejudicial. State v. Pena Fuentes, 179 Wn.2d 808, 819, 318 P.3d 257 (2014). It is the State's burden to rebutthe presumption by showing the absence of 

### prejudice beyond a reasonable doubt. Id,This court reviews the trial court's decision on a CrR 8.3 motion for abuse ofdiscretion. Id. at 820. The trial court abuses its discretion if its decision was manifestly unreasonable or based on 

### untenable grounds. State v. Wilson, 149 Wn.2d 1, 9, 65 P.3d 657 (2003).
1 Phillip's first trial resultedin a hungjury. He was convicted at his secondtrial.
7No. 72120-8-1/8 Atthe hearing on Phillip's motion to dismiss, the court heard testimony from the lead investigator and the forensic examinerwho extracted the information from Phillip's cell phone. The court also considered the detective's follow-up report and the prosecutor's affidavit. The trial court found the State's witnesses credible. Itfound that the police took no meaningful action and discovered no new evidence as a result ofthe privileged communication. The courtfurther found thatthe privileged communication did not affect the prosecution's trial preparation or strategy. The trial court accordingly ruled that the State had rebutted the presumption ofprejudice and that itcould not find any injury to Phillip's rights to due process, counsel, and a fair trial. The trial court's decision is based on the correct legal standard and is not manifestly unreasonable. There was no abuse ofdiscretion. 

### Phillip next argues thatthe trial court erred in denying his motion to 

### suppress his cell phone records. He asserts that the March 2012 warrantwas invalid and the cell phone records were thus unlawfully seized. 

### Asearch warrant may only issue ifthe underlying affidavitshows probable
cause. State v. Thein, 138Wn.2d 133, 140, 977 P.2d 582 (1999) (citing State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995)). Probable cause exists where the affidavit includes facts sufficient for a reasonable person to conclude the defendant is probably involved in criminal activity and that evidence ofthe criminal activity is likely to be found inthe place to be searched, jd. Inthe context of a search warrant, the probable cause inquiryfocuses on the connection

8No. 72120-8-1/9 between the crime, the items sought, and the likelylocation ofthe items. Zurcher

v. Stanford Daily, 436 U.S. 547, 555-56, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978). An affidavit is evaluated "inthe light of common sense." Cole, 128 Wn.2d at 286 (citing State v. Young, 123 Wn.2d 173, 195, 867 P.2d 593 (1994)). A magistrate may draw reasonable inferences from the facts and circumstances included in the affidavit. State v. Nusbaum. 126 Wn. App. 160, 166-67, 107 P.3d 

### 768 (2005) (citing State v. Anderson, 105 Wn. App. 223, 229, 19 P.3d 1094 (2001)). But mere speculations are not sufficientto give rise to probable cause, 

### jd. (citing Thein. 138 Wn.2d at 145-46). Whetherthe facts in the affidavit support probable cause is a question of law that this court reviews de novo. Id. (citing In
re Pet, of Petersen v. State, 145 Wn.2d 789, 799-800, 42 P.3d 952 (2002)). Our review is limited to the four corners ofthe affidavit. State v. Neth, 165 Wn.2d 177, 182, 196 P.3d 658 (2008). 

### Phillip argues that the trial court erred in concluding thatthe affidavit 

### underlying the March 2012 warrantestablished probable cause. Heargues that the facts inthe affidavit do not sufficiently state a factual basis connecting Phillip's phone records with Frankel's murder. We agree. The March 2012 affidavit incorporates the May 2010 affidavit and thus 

### includes the earlier affidavit's briefdescription of the crime scene, identification of Johnson as Frankel's girlfriend, informationthat Johnson asked the neighborto check on Frankel, and description ofPhillip as a man with whom Johnson had a close relationship. The March 2012 affidavitprovides further details abouttheNo. 72120-8-1/10 

### crime scene, including the fact that doors were locked and that, exceptfor the


### area immediately surrounding the body, the apartment appeared untouched. It also includes Johnson's statements that Phillip had served inthe military, he was 

### the only person she knewwho had ever spoken ill ofFrankel, he was the only person she could think of whowould want to hurtFrankel, and he was extremely upset when she broke upwith him. The affidavit reports Phillip's statementto the Portland police that Johnson was "just a friend" and his invocation of the rightto counsel when asked ifhe had ever been in Auburn. CP at 134. 

### The affidavit includes copies of text messages between Johnson and 

### Phillip in the week of Frankel's death. The textmessages appearflirtatious. In
one message, Phillip refers to Frankel as an "unhotold man." CP at 133. In 

### Johnson's reply, she tells Phillip notto speak aboutFrankel like that. The text messages do notexpress any intent to harm Frankel. The facts inthe affidavit indicate that Phillip had a close relationship with 

### Johnson andfrequently communicatedwith her by telephone. Johnson said that 

### Phillip was the only person she could think ofwho had spokenill ofFrankel and who mightwant to harm Frankel. Butthe only evidence supporting these assertions was Phillip's textreferring to Frankelas an "unhot old man" and Johnson's claim that Phillip was very upset when she broke upwith him. These 

### facts at most suggest that Phillip may have been jealous ofFrankel's relationship with Johnson. But they do notcreate a reasonable inference that Phillip was

10No. 72120-8-1/11 involved in Frankel's death orthat evidence relating to Frankel's death would likelybe found in Phillip's cell phone records. The affidavit also establishes that Phillip did not wantto discuss with 

### police whether he had traveled to Auburn.2 This fact may have indicated to police thatfurther investigation was warranted, but itdoes not establish a connection sufficient to inferthat evidence ofthe crime would likely be found in Phillip's cell phone records. "Absent a sufficient basis in fact from which to conclude evidence 

### of illegal activitywill likely be found at the place to be searched, a reasonable

nexus is not established as a matter of law." Thein, 138 Wn.2d at 147. See e.g., (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 that the facts in the affidavit give rise to a chain of inferences supporting probable cause. The State argued below that Phillip's relationship withJohnson gave him a motive to harm Frankel, Phillip could have obtained a key to the apartmentfromJohnson, and Phillip thus may have had
access to Frankel. The State further argued that Johnson and Phillip may have

2Phillip argues that thetrial courterred in considering hisinvocation oftherightto counsel when asked if he had been to Auburn. Relying on cases holdingthat a person's exercise of the rightto remain silent may not be used as substantive evidence ofguilt, Phillip asserts that it is fundamentally unfair to considerhis exercise of the right to counsel in evaluating probable cause. App. Br. at 36-37. We reject this argument. Anaffidavit of probable cause is notlimited to facts that are admissible in evidence. State v. Grenninq, 142 Wn. App. 518, 534, 174 P.3d 706 (2008^ (citing State v. Withers. 8Wn. App. 123, 125, 504 P.2d 1151 (1972)). Asuspect's conduct inspeaking with police, including the suspect's invocation of a constitutional right, is relevant to the common sense determination of probable cause. 11No. 72120-8-1/12 beenjointly involved inthe crime and that ifeither ofthem was the killer, evidence ofthe crime would likelybe found in Phillip's phone records. These are mere speculations. The facts inthe affidavit provide no basis for inferring that Johnson and Phillipconspired to harm Frankel and that 

### evidence of this conspiracy would be found in Phillip's phone records. To the 

### contrary, in the text messages, Johnson defends Frankel and instructs Phillip not to speak badly of him. Conclusory statements, speculations, and suspicions do not provide a factual basis that supports probable cause. Thein, 138 Wn.2d at
147. We conclude thatthe March 2012 warrantfor Phillip's cell phone records
was invalid and the trial court erred indenying Phillip's motion to suppress the 

### records. The underlying affidavit did not provide a sufficient factual basis from which to inferthat evidence ofthe crime would likelybe found in Phillip's phone records. Because we conclude thatthe warrant was not supported by probable 

### cause, we do notconsider Phillip's further challenges to itsvalidity. We also do notconsider Phillip'schallenge to the testimony ofAT&T's custodian concerning the phone records. 

### Phillip also argues thatthe trial court erred in denying his motion to 

### suppress evidence obtained from the June 2010 and November 2010 warrants to search his apartment, vehicle, person, and DNA. He argues thatthese warrants 

### were invalid because they relied on informationunlawfully obtained from Phillip's

12No. 72120-8-1/13 cell phone records. Phillip also asserts that the unlawfully obtained information motivated police to seek the June and November 2010 warrants. We disagree. Evidence seized during an illegal search is generally subjectto suppression underthe exclusionary rule. State v. Gaines, 154 Wn.2d 711, 716- 17, 116 P.3d 993 (2005). Evidence derived from an illegal search may also be subject to suppression underthe fruit ofthe poisonous tree doctrine. ]d_. at 717. One exception to the exclusionary rule, however, is the independent source doctrine. Id. Underthe independent source doctrine, "evidence obtained pursuantto a warrant is admissible, even though the warrant recites information tainted by an unconstitutional search, provided the warrant contains enough untainted 

### information to establish probable cause." State v. Eseriose, 171 Wn.2d 907, 928, 259 P.3d 172 (2011) (citingGaines, 154Wn.2d at 719)). To pronounce such a warrant lawful, a court must also find that police would have sought the warrant


### even without knowingthe tainted information. Id. (citingGaines, 154 Wn.2d at 

### 721). See Murray v. United States, 487 U.S. 533, 542,108 S. Ct. 2529, 2533, 101 L.Ed.2d 472 (1988). 

### Both a Washington court and an Oregon court issued warrants on June 

### 22, 2010. The Oregon warrant authorized search of Phillip'sapartment and motorcycle. Italso authorized seizure of Phillip's cell phone and a limited seizure ofPhillip inorderto photograph his righthand and any other blunt or sharp force 

### injuries on his person. The Washington warrant authorized search ofPhillip's

13No. 72120-8-1/14 email account and search ofVerizon records for information concerning the cell phone number that Phillip dialed at 8:56 p.m. on the night ofthe murder. The affidavits supporting the two warrants were identical in all relevant particulars. Applying the independent source doctrine, we first analyze the affidavits with all references to the illegally obtained cell phone records excised to determine ifthe warrants were supported by probable cause. Viewed inthat light, the affidavits contain the following facts: Frankel suffered multiple violent injuries and died of a knife wound to the neck. There
were no signs offorced entry or burglary at Frankel's home. Frankel had a cut on
one hand. An 18-inch zip tie was around one ofFrankel's wrists and another zip 

### tie was nearby. On May 25, investigators searched Johnson's cell phone with her consent. They learned that Johnson was infrequent contactwith Phillip. In 

### addition, they were aware that Phillip appearedjealous ofJohnson's relationship with Frankel. The affidavits further state: On May 28, Auburn detectives visited Phillip and observed that he tried to conceal his righthand, which was covered inpart 

### by a bloodstained Band-Aid. Phillip stated that he injured his hand at work. Phillip refused to answer any questions about when he was last in Auburn. On June 2, detectives again visited Phillip. The detectives observed that Phillip had a 1-2 inch cut on his right hand when he opened the door. Phillipcovered the cut before talking withthe detectives. Phillipagain refused to answer any questions about Auburn. On June 9, detectives learned that zip ties consistent with the type

14No. 72120-8-1/15 found at the crime scene were available at Phillip's work and commonly used in his job duties. A coworker stated that Phillip had injured his hand at work in May but the accident did not break the skin or cause any bleeding. We conclude that, when viewed with the tainted information excised, the affidavit taken as a whole established probable cause to believe that Phillip was probably involved with Frankel's murder and that evidence ofthe crime would be found in Phillip's apartment or motorcycle. The affidavit also established probable
cause to seize Phillip's cell phone and to seize his person for evidence that the injury to his right hand was related to the crime. However, the provision inthe Washington warrant issued inJune 2010 

### and authorizing search of Verizon records concerning the phone numberthat Phillip dialed on the night of the crime was not valid. The phone numberwas 

### known to police from Phillip'sunlawfully obtained phone records. Absentthat information, there was no probable cause to search phone records forthat number.3 We next examine whetherthe police would have soughtthe warrant even 

### without knowing the informationcontained in the unlawfully obtained cellphone records. Eseriose, 171 Wn.2d at 928. Phillip asserts that absentthose records 

### the police would not have soughtthe subsequentwarrants. We disagree.

3We concludethat theremaining provisions of the warrantare valid under the doctrine of severability. State v. Maddox, 116Wn. App. 796, 807-09, 67 P.3d 1135 (2003)).

15No. 72120-8-1/16 Police obtained the cell phone records from AT&T on June 20. The facts inthe affidavit amply demonstrate that Phillipwas a person ofinterest under 

### active investigation prior to that date.4 We conclude that based on the information gathered intheir investigation prior to June 20, the police had probable cause to believe Phillipwas involved inthe crime and would have soughtthe additional warrants even without knowledge of cell phone records. The trial court did not err 

### in admitting the evidence obtained fromexecuting the warrant on Phillip's apartment and vehicle. Under the same analysis, the November 2010 warrant authorizing search 

### of Phillip'sDNA was also valid. The warrant affidavit incorporates the previous warrants and additionallystates that the bloodstained towel recovered from the 

### murder scene hadyielded a partial DNA samplefrom an unknown male.5 Police did not have a known sample of Phillip's DNAto compare withthe sample obtained from the crime scene. We conclude thatthe trial court did not err in denying Phillip's motion to 

### suppress the evidence seized inexecuting the warrants for Phillip'sapartment, 

### motorcycle, email,cell phone, person, and DNA. Butbecause the trial court erred in denying Phillip's motion to suppress his phone records and the cell phone

4Phillip places great weight on a detective's statement that, at the timepolice requested the warrant forPhillip's phone records on May 27, they "didn'treally have any suspects." App. Br. at 23-24; ReplyBr. at 4. ButPhillip does not account for the additionalinformation revealed throughinvestigation after police requested the warrant but before they obtained the phone records.5In considering theNovember2010warrantauthorizing search ofPhillip's DNA, we excise information obtained from the search ofVerizon records for the number that Phillip dialed on the night of the crime. 16No. 72120-8-1/17 records related to the number Phillip dialed on the night ofthe crime, we reverse and remand forfurther proceedings. We do not reach Phillip's arguments thatthe trialcourt erred indenying his motion to dismiss for juror misconduct or in 

### requiring Phillip to appear in restraints at sentencing.6 Reversed and remanded.

WE CONCUR: 

# >Jle.rrlt*^t-r* Q

6We note, however, that the latter issue arose below before our decision inState v. Walker. 185 Wn. App. 790, 344 P.3d 227 (2015)rev,denied, 183Wn.2d 1025, 355 P.3d 1154 (2015). 17