# /FI~E- IN CLERKS OFFICE llJIR!ME COURT, STATE OFWASHING1QN 

### 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, ) ) 

### OCT 3**~.** 

### 20'13 Petitioner. ) Filed ) MADSEN, C.J.-BrandonOllivier 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 ofthe Washington State Constitution were violated by delay in bringing him to trial. He also maintains that evidence obtained in a search ofhis apartment mustbe suppressed because ofmisrepresentations and other defects in the affidavit in support ofprobable
cause to issue the warrant, and CrR2.3(d) was violated because he was notpresented with a copy ofthe search warrantpriorto commencement ofthe search. We conclude thatthe delay in bringing Ollivierto 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, thatprobable cause for theNo. 86633-3 search warrant was sufficiently established by qualifying information in the affidavit, and
no violation ofCrR2.3(d) occurred because a copy ofthe search warrantwas posted upon seizure ofproperty pursuant to the warrant. We affirm the Court ofAppeals' decision upholding Ollivier's conviction for possession ofchildpornography. FACTS In March 2007, Brandon Ollivier, aregistered sex offender, was living with roommates who also were registered sex offenders. When one ofthe roommates, Eugene Anderson, was arrested for aviolation ofcommunity custody, he told his Community Corrections Officer (CCO) on March 8, 2007, that Ollivierhad 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 ofa young girl and boy having sexual relations. He also statedthat Ollivierhad shown him photographs ofyoung girls about nine years old who were dressed butposed provocatively. In addition, Anderson told Saario that Ollivier kept a locked red boxthat containedpornography, including 

### "Playboy" and 

### "BarelyLegal" magazines. Detective Saario prepared an affidavitto obtain a search warrant for the apartment. Among otherthings, she incorrectly statedthat Anderson informed herthat the red box containedphotographs ofunclothed children in sexually explicitposes. 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 seizedtwo desktop

2No. 86633-3 computers, one laptop computer, several compact disks, USB (Uniform Serial Bus) drives, and other storage media. At the conclusion ofthe search, Detective Saario posted
a copy ofthe warrant on a bookcase in the apartment. A detective who initially examined the computer images concluded they contained
over 14,000 images ofchild pornography and about 100 video files ofchildpornography. The vast majority were images ofchildren under 15 years ofage 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 ofminors engaged in sexually explicit activity. On April 18, 2007, he was arraigned, with an initial speedy trial expiration date ofJune 29, 2007. Trial began on March 9, 2009, following 22 continuances. Defense counsel sought most ofthe continuances to allow time for investigation, to obtain expertreview ofcomputer content, to obtain discovery material from the Washington State Department ofCorrections and the King County Sheriff's Office, and because ofa new investigator onthe case. Some ofthe requested continuances mentioned circumstances involving the State and some motions werejoinedby the State. In addition, shortly after executing the search warrant, Detective Saario was investigated for misconduct and she resigned. A continuance was requested to permittime to obtain information about the investigation into her conduct. Ollivier did not objectto the first two ofthese continuances, but he did objectto nearly all ofthe rest.

3No. 86633-3 King County Detective Barry Walden conducted a forensic search ofthe computers. 

### It is undisputed childpornography 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 ofimages ofchildpornography 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 ofchildpornography and they were not shown to thejury. Anderson testified at Ollivier's trial that he stayed with Ollivier one weekbefore he was arrested onthe community custody violation. He testified he never used the computer he saw in Ollivier's apartment, thathe saw Ollivier use it daily, and that he
never saw anyone else use it. Hetestified that Ollivier showed him childpornography on the computer. Another roommate, Daniel Whitson, testified on Ollivier's behalfthat he (Whitson) had never seen Ollivier use the computer to view pornography. Ollivierwas convicted ofone countpossession ofdepictions ofminors engaged in sexually explicit conduct1and was sentenced to a standard range sentence. He appealed. The Court ofAppeals affirmed his conviction. State v. Ollivier, 161 Wn. App. 307, 254 P.3d 883 (2011).

1Ollivier was originally charged with additional counts, butthe State agreed to dismissal of several counts in light ofState v. Sutherby, 165 Wn.2d 870, 204 P.3d 916 (2009). 4No. 86633-3
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 ofthe trial court and will not be disturbed absent an abuse ofdiscretion. State v. Kenyon, 167 Wn.2d 130, 135, 216 P.3d 1024 (2009). CrR 3.3 accords withthe United States Supreme Court's determination that states
canprescribe reasonable periods for commencement oftrials 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 ofensuring that a defendant's constitutional rightto 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 considerthe 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 ofcriminal proceedings without establishing any constitutional standards"). Under CrR 3.3(b)(l)(i), an individual held in custody pending trial mustbe tried within 60 days ofarraignment. Certaintime periods are excluded from the computation



### 5No. 86633-3
oftime, including continuances granted by the trial court. CrR3.3(e). CrR 3.3(f)(2) explains: On motion ofthe court or aparty, the court may continue the trial date to a specified date when such continuance is required in the administration of justice and the defendantwill not be prejudiced in the presentation ofhis or her defense. The motion mustbe 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 behalfofany party waives thatparty's objectionto the requested delay." Here, Ollivier's own counsel soughtthe continuances about which he complains, and as the rule expressly provides, any objection is therefore waived? Ollivier contends, however, thatthe 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 notprejudiced. For example, Mr. Ollivier says as to the October 19, 2007 ruling that the court indicatedthe continuance was granted in the administration of justice but failed to comply with the requirement that the delay notprejudice the defendant. However, the order explains the reason for the continuance was thatthetime was needed for a defense expertto do work before trial. Implicit is the ideathat ifthe expert lacked sufficienttime to complete the work, the defense would suffer or be incompletely prepared.

2 Under case law preceding the 2003 adoption ofthe last sentence in CrR 3.3(f)(2) that waives objections when defense counsel moves for a continuance, granting continuances over the defendant's objectionto ensure that counsel was adequately prepared and provided effective representation was not an abuse ofdiscretion. 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). 

### 6No. 86633-3
Each order continuing the trial provides a reason for the continuance. Inhis opening briefin the Court ofAppeals, Mr. Ollivier "concede[d] that any ofthe continuances, standing alone, wouldnotbe an abuse ofdiscretion." 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 oftime to pursue matters in preparation ofhis defense and that the trial courtproperly 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. InSaunders, three continuances at issue were granted thatthe Court ofAppeals found to be unsupportedby convincing and valid
reasons. 3 Indeed, the continuances were grantedto permit ongoing pleanegotiations over the defendant's objection and contrary to his desire to go to trial. As the State points out in the present case, whetherto plead guilty is an objective ofrepresentation controlled by the defendant and not a matter oftrial 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 ofAppeals summarized them as follows: Here, [the defendant] consistently resisted extendingtime for trial while he was incarcerated awaiting trial onhis 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, contestedby [the defendant], or relied on uninformed standby defense attorneys or assigned prosecutorsto present contested orders-these standbys either did not lmow aboutthe continuances or believed they were agreed continuances-and, whenthe trial court challengedthem to state the basis ofthe requested continuances, they admitted they lmew nothing substantive about the status ofthe case. Saunders, 153 Wn. App at 220-21. 7No. 86633-3 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 becausethe record failed to sufficiently document details showing that nojudgewas available to try the case, as required by precedent. Kenyon involves continuances for far differentreasons than in Ollivier's

In light ofCrR3.3(f)(2) and Mr. Ollivier's concession that individually the continuances were not an abuse ofdiscretion, Mr. Ollivier's rule-based speedy trial right
was not violated. We affirm the Court ofAppeals 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 whetherMr. Ollivier's constitutional rights to a speedy trial were violated. ConstitutionalRightsRight to a Speedy Trial Ollivier contends that the Court ofAppeals erroneously ruled thatto show a violation ofconstitutional 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 aviolation ofthe 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. Butthe 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. 8No. 86633-3
Mr. Olivier's argument highlights the need for us to clarify our analysis in Iniguez concerning when a showing ofactual 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 thatprejudice to the ability to defend mustbe conclusivelypresumed. Our review is de novo. Iniguez, 167 Wn.2d at 280. InIniguez, 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 '"consistentwith delays"' and subjectto the circumstances. Barker, 407 U.S. at 522 (quotingBeavers 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 pursuantto 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 balancingtestthat
was adopted by the United States Supreme Court, federal case law concerningthe Sixth Amendmentright is highly relevantto application ofthe state constitutional provision in

5The Sixth Amendmentprovides inpart 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 ofthe Washington State Constitution similarly provides that "[i]ncriminal prosecutions the accused shall have the right
... to have a speedypublic trial." 9No. 86633-3

a given situation. !d. at 282; see also State v. Fortune, 128 Wn.2d 464, 474-75, 909 P.2d 930 (1996) (federal cases canprovide guidance in interpreting the state constitution). The analysis is fact-specific and "'necessarily dependentupon the peculiar circumstances ofthe case."' Iniguez, 167 Wn.2d at 288, 292 (quotingBarker, 407 U.S. at 530-31). "[T]he conduct ofboth 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 ofdelay, the reason for the delay, the defendant's assertion ofhis right, and prejudice to the defendant." Id. at 530. None ofthese factors is sufficient or necessary to
a violation. Iniguez, 167 Wn.2d at 283 (citingBarker, 407 U.S. at 533). Butthey assist in determining whether aparticular defendanthas been denied the right to a speedy trial. ThresholdShowing of PresumptivelyPrejudicialDelay Analysis ofthe length ofdelay entails a double inquiry. Doggett v. UnitedStates, 505 U.S. 647,651, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992). In orderto trigger the speedy-trial analysis, "an accused must allege that the interval between accusation and trial has crossedthe threshold dividing ordinary from 'presumptively prejudicial' delay" because, "by definition," the accused "cannotcomplain thatthe governmenthas denied him a 'speedy' trial ifit has, in fact, prosecuted his case with customary promptness." !d. at 651-52 (quoting Barker, 407 U.S. at 530-31). Then, ifthis showing is made, a court has to consider, "as one factor among several, the extentto which the delay stretches beyondthe bare minimum neededto triggerjudicial examination ofthe claim." !d. at

10No. 86633-3 652. Thus, "the length ofthe delay is both the trigger for analysis and one ofthe factors to be considered." UnitedStates v. Colombo, 852 F.2d 19, 24 (1st Cir. 1988). The more than eight-year delay in Doggettwas clearly sufficientto trigger the speedy trial inquiry. The Court also noted in Doggettthat while dependent upon the nature ofthe 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 speedytrial has been violated, butrather thatthe 23-month delay is sufficientto 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 ofthe Barker factors is the length ofthe delay. Ollivier maintains that the length ofdelay weighs in his favor particularly because, he claims, it was not reasonably necessary. He also points outhe spent nearly the full period incarcerated and that his counsel had told the courtthat 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

11No. 86633-3
attributable to the defense. E.g., UnitedStates v. Lane, 561 F.2d 1075 (2d Cir. 1977) (58 months, much attributable to repeatedrequests by the defense for continuances); Gattis v. Snyder, 278 F.3d 222 (3d Cir. 2002) (28-month delay, all ofwhich was attributable to the defendant); UnitedStates v. Hills, 618 F.3d 619,630-31 (7th Cir. 2010) (two-year delay, most ofwhich was attributable to the defense); UnitedStates v. Porchay, 651 F.3d 930, 940 (8th Cir. 2011) (assuming 39-month delay was presumptivelyprejudicial, no Sixth Amendment violation; "much ofthe 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 ofinterlocutory appeal, and written motions for continuance"); UnitedStates v. King, 483 F.3d 969 (9th Cir. 2007) (21-month delay did not violate the Sixth Amendmentwhere defense obtained numerous continuances, case was complex, and defendant obtained new counsel halfway throughproceedings); UnitedStates v. Larson, 627 F.3d 1198, 1209-10 (1Oth Cir. 2010) (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 UnitedStates v. Howard, 443 Fed. App'x 596, 599 (2d Cir. 2011) (unpublished) (43- month delay did not violate SixthAmendment where "asignificantportion ofthe delay in [the defendant's trial] was attributable to his ownpretrial motions as well as ends-of-justice continuances that [the defendant] did not oppose"); UnitedStates 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 ofthe 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 SixthAmendment where the majority ofthe 12No. 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 ofthe issues and counsel's need for preparation. In fact, contrary to Ollivier's claim, one ofthejudges who granted continuance requests commented on the complexity ofthe issues. Counsel had to obtain information in connection withuse ofthe 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 ofthe delay and also consentedto 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 ofthe delay were due to defense counsel'srequests and another 329 days were due to congested court dockets andjudicial delay); UnitedStates 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 withrecordings 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 (2012) ( 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 SixthAmendment where the defendant obtained al128 ofthe continuances that were granted); Eguia v. State, 468 N.E.2d 559 (Ind. Ct. App. 1984) (over 3- year delay, responsibility for most ofwhich 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 ofdelay 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 ofwhich 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 ofthe 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. 156,237Wis. 2d 709, 616 N.W.2d 126 (2000) (26-month delay, largely the result ofdefense requests for time to prepare did not violate the Sixth Amendment; the record strongly indicated defendant did not want a speedytrial). 

### 13No. 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 ofthe delay in this case was attributed to discovery from the King County Sheriffs Office in connection with preparation ofthe defense challenge to the sufficiency ofthe search warrant. Counsel's pursuit ofthis 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 ofmaterial were produced, necessitating additional time to investigate and review. Nearly all ofthe continuances were sought so that defense counsel could be prepared to defend. This is an extremely important aspect ofthe balancing and leads us to conclude that the length ofdelay was reasonably necessary for defense preparation and weighs against the defendant. Reasonfor Delay The secondBarker factor is the reason for the delay. Barker, 407 U.S. at 531; Iniguez, 167 Wn.2d at 294. Whenthe 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,"' UnitedStates v. SantiagoBecerril, 130 F.3d 11, 22 (1st Cir. 1997) (quoting UnitedStates v. Sears, Roebuck & Co.,

14No. 86633-3
877 F.2d 734, 739 (9th Cir. 1989)), "[t]he flag all litigants seek to capture," UnitedStates
v. LoudHawk, 474 U.S. 302, 315, 106 S. Ct. 648, 88 L. Ed. 2d 640 (1986). To begin, the United States Supreme Courtreminds us that "pretrial delay is often both inevitable and whollyjustifiable." Doggett, 505 U.S. at 656. Thus, careful assessment ofthe 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 ofthe delay on defendant's right to a fair trial. Barker, 407 U.S. at 531. At one end ofthe spectrum is the situation where the defendantrequests
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 (citingBarker, 407 U.S. at 529). At the other end ofthe spectrum, ifthe government deliberately delays the trial to frustrate the defense, this conductwill be weightedheavily against the State. Barker, 407 U.S. at 531. Moving more toward the center, ifthe 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 ifthe government has avalid reason for the delay, such as a missing witness, then the valid reason mayjustify a reasonable delay. Id. We conclude that the second factor weighs more in favor ofthe 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); UnitedStates
v. Gearhart, 576 F.3d 459, 463 (7th Cir. 2009) ("[w]here a defendant seeks and obtains a

15No. 86633-3 continuance, the defendant himselfis responsible for the resulting delay"); UnitedStates
v. Gould, 672 F.3d 930,937 (lOth Cir. 2012) (delay of 1388 days; a "'[d]elay[] attributable to the defendant do[es] notweigh againstthe government'" (quoting United States v. Abdush-Shakur, 465 F.3d 458, 465 (lOth Cir. 2006))); UnitedStates v. Toombs, 574 F.3d 1262, 1274 (lOth Cir. 2009) ("[d]elays attributable to the defendant do not weigh in favor ofa Sixth Amendmentviolation"; "ofthe 671 days between the filing of [the] indictment and the start ofhis trial, 423 were attributable to motions filed by [the defendant]"; "this factor weighs heavily against" the defendant); UnitedStates v. Garraud, 434 Fed. App'x 132, 137 (3d Cir. 2011) (unpublished) (no violation ofSixth Amendment from 22-month delay because the defendant "was the cause for any delay in his trial"; included in this time was an extension oftime requested by the defendant for discovery); UnitedStates v. Gates, 650 F. Supp. 2d 81, 87 (D. Me. 2009); UnitedStates
v. Hendrickson, 460 Fed. App'x 516, 520 (6th Cir. 2012) (unpublished); UnitedStates. 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 ofdetermining whether constitutional right to speedy trial is violated; 503-days delay attributable to defense counsel's requests); In re PersonalRestraint ofBenn, 134 Wn.2d 868, 952 P.2d 116 (1998) (defendant charged in May 1988 and broughtto trial in March 1990; virtually the entire

16No. 86633-3 delay was attributable to continuances that were requested by the defense or agreed to by the defense and there was no evidence ofprejudice 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 ofthe 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 orpublicly assigned, for "[o]nee a lawyer has undertaken the representation ofan accused, the duties and obligations are the same whetherthe 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 concludedthatthe 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 ofthe continuances in this case were soughtto accommodate defense counsel's needto prepare for trial. Moreover, while it is true thatthe defendant objected to most ofthese continuances, it does not follow that granting them violated his right to a speedy trial. Many courts hold that even where continuances are sought overthe defendant's objection, delay caused by the defendant's counsel is charged against the defendant under
7The 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). 17No. 86633-3 the Barker balancing test ifthe continuances were sought in order to provideprofessional 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 arguedthat timing oftrial was a decision that mustbe left to the defendant; court disagreed, saying that "[t]he matter ofpreparation and date ofthe trial and the type of defense relied upon are clearly strategical and tactical decisions which require trained professional skill andjudgmentwhich mustrest with the lawyer"; no violation ofSixth Amendmentright to a speedy trial); Taylor v. State, 557 So. 2d 138, 141-42 (Fla. Dist. Ct. App. 1990) (noting tension betweenthe right to speedy trial and the constitutional right to competent, prepared counsel; finding no violation ofthe constitutional right to speedy trial where counsel sought a continuance over defendant's objections), overruled
on othergrounds byHeuss v. State, 687 So. 2d 823 (Fla. 1996); State v. Taylor, 298 S.W.3d 482 (Mo. 2009) (counsel obtained continuances over objection ofdefendantto prepare for trial; lengthy delay; defendant effectively asserted constitutional right to speedy trial; no violation ofSixth Amendment); see also UnitedStates 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 defendantrefuses to waive time despite attorney's need for time to more prepare, conflict between statutory and constitutional rights to a

18No. 86633-3 speedytrial and Sixth Amendmentright 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 isjustified). 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); cfPeople 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 waiverprovided 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) (requestby 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 ofsome complexity, and contrary to
some ofOllivier's arguments, complexity is not measured by whetherthe prosecutor believedthatthe trial itselfwouldbe noncomplex or whether matters explored in preparation for trial would actually be part ofthe trial. Much ofthe time expended in preparing for this case involvedpretrial discovery and suppression issues, and these are the matters that led to most ofthe delay in this case.

19No. 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 UnitedStates v. Graham, 128 F.3d 372, 374 (6th Cir. 1997). But Graham involved discovery from the prosecution, aparty 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 ifaparty 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 misconductbut instead remained passive. Ollivierurges that knowledge ofthe 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,8but 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 ofthe 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 '"reasonableprobability' ofa different result," which is "shown when the government's evidentiary suppression 'undermines confidence in the outcome ofthetrial."' Kyles, 514 U.S. at 434 (quoting UnitedStates v. Bagley, 473 U.S. 667, 678, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985)). The evidence ofimages constituting childpornography was seized under avalid warrant 8Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). 20No. 86633-3 validly executed. The State presented evidence that Ollivier was the individual in possession ofthe childpornography. Even ifwe assume the general soundness of Ollivier's rather attenuated argument, the information aboutthe investigation and Saario's resignation-with any impeachment value it had on the issue ofSaario's credibility-is not material because even with this informationthere was no reasonable probability ofa different result. Kyles does not support Ollivier's claim that the State shouldbe 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 ofCorrections, also a nonparty. Finally, even ifone 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."' UnitedStates v. McGrath, 622 F.2d 36, 41 (2d Cir. 1980) (quoting UnitedStates v. Companion, 545 F.2d 308, 312 n.3 (2d Cir. 1976)). In summary, most ofthe continuances were sought by defense counsel to provide time for investigation and preparation ofthe defense. Time requested by the defense to prepare a defense is chargeable to the defendant, and this factor weighs heavily against the defendant.

21No. 86633-3
Assertion of Rights The third Barker factor is "the defendant's assertion ofor failure to assert his right to a speedy trial." Barker, 407 U.S. at 514, 528. The Court added in Barkerthat "failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial." Idat 532. Assertion ofthe 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 ofhis speedy trial right, then, is entitled to strong evidentiary weight in determining whetherthe defendant is being deprived ofthe 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 ofthe right is relevant to whether a violation has occurred and also helps to establish or reinforce the conclusionthat the defendant has not waived the right. Itmay be fairly unusual for a defendant to objectto nearly all ofa large number of continuances sought by his own attorney. Here, however, Ollivier repeatedly objectedto counsel's motions for continuances, and he maintains that therefore his rights to a speedy trial were timely asserted. Butunder the circumstances, these objections do not weigh in favor ofthe 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 ofa search warrant, which
22No. 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 ofCorrections about another possible suspect. These matters were all relevant avenues ofinvestigation and preparation for Ollivier's defense. In light ofthe Court's discussion inBrillon, we conclude that the delay resulting from such continuances mustbe attributed to the defense because "delays causedby defense counsel are properly attributable to the defendant." Brillon, 129 S. Ct. at 1293. Second, a contrary conclusion would encourage objections even ifdefense counsel is pursuing a legitimate defense and the continuances are unquestionably requested for this purpose. Here, as noted, Ollivierhas 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 ofthe continuances, standing alone, would notbe an abuse ofdiscretion" (emphasis omitted)). His concession establishes that eachrequest for a continuance was a legitimate request for an extension oftime to pursue matters in preparation ofhis defense. But ifdefense counsel can seek continuances for any purpose and atthe same time the defendant can file effective objections-anearly automatic escape hatch would be created should the trial notproceed as hoped. Indeed, ifcontinuances over the defendant's objections were to weigh in favor of the defendant's claim ofaviolation, then counsel might be encouraged

23No. 86633-3
to delay proceedings by seeking unreasonable continuances, hoping thereby to obtain a dismissal ofthe 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. Ifbecause ofthe objections the trial courthad denied counsel's requests for continuances thatwere needed to prepare for trial, then Ollivier might have had a strong claimthatthe right to effective assistance ofcounsel had been denied. The third factor, whetherthe defendant has asserted his speedy trial rights, does not weigh in Ollivier's favor, given thathis objections cannotbe given effect when his
own counsel soughtthe continuances to prepare for trial. Butthis factor does not weigh in favor ofthe State, either. "Whether and how a defendant asserts his right is closely related to the other factors
.... The strength ofhis efforts will be affected by the length ofthe delay, to
some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, thathe experiences." Barker, 407 U.S. at 531. This brings us to this last ofthe four factors.

9 The Court was specifically referring to appointed counsel's requests ifappointed counsel was consideredto be acting as the State for speedy trial purposes. The same reasoning applies here, however. 24No. 86633-3 Prejudice Under the fourth factor, prejudice to the defendant as a result ofdelay may consist of(1) '"oppressive pretrial incarceration,"' (2) '"anxiety and concern ofthe accused,"' and (3) '"thepossibility that the [accused's] defense will be impaired' by dimming memories and loss ofexculpatory evidence." Doggett, 505 U.S. at 654 (alteration in original) (quoting Barker, 407 U.S. at 532). These particularized showings ofprejudice
are notjusttheoretical underpinnings to presumedprejudice, they are specific types of prejudice that a defendant can offer in any case but, as in the present case, a defendant mustoffer these or otherparticularized showings ofprejudice whenthe delay is not due to bad faith on the government's part and the delay is not sufficiently long for a presumption ofprejudice to arise. 

### !d. at 656-68. 10 Contrary to Mr. Ollivier's contention, prejudice is not always presumed. To the extentthat our decision inIniguez may have been less than clear on this point, we clarify it now. A defendant ordinarily must establish actual prejudice before a violation ofthe constitutional right to a speedy trial will be recognized. As one courthas accurately summarizedthe analysis: Thepresumption ofprejudice discussed in Doggett, however, is not automatically applicable whenever a defendant's trial is delayed. "Pretrial delay is often both inevitable and whollyjustifiable." 

### !d. at 656, 112 S. Ct. 2686. Whenthe governmentprosecutes a case withreasonable diligence, a defendant who cannot demonstrate how his defense was prejudiced with specificity will not make out a speedy trial claim no matterhow great the ensuing delay. See id.
10 The presumption ofprejudice referred to in connection withthe fourth Barker factor is prejudice that does notrequire that the defendant show actual prejudice to his defense. Itis to be distinguished from the threshold presumption ofprejudice that triggers theBarker analysis. 25No. 86633-3 Where there is evidence ofnegligence on the government's part, but no bad faith, the Supreme Court has declared that apresumption 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 musthave lasted longer than negligence demonstrably causing suchprejudice." !d. InDoggett, 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 ofprejudice to the defendant. UnitedStates v. Howard, 218 F.3d 556, 564-65 (6th Cir. 2000) (emphasis added). 11

11 Doggett's explanation is more lengthy, but inrelevant part is as follows: Our speedy trial standards recognize thatpretrial delay is often both inevitable and whollyjustifiable. The governmentmay need time to collect witnesses against the accused, oppose his pretrial motions, or, ifhe goes into hiding, track him down
.... [I]fthe Governmenthadpursued Doggettwith reasonable diligence from his indictment to his arrest, his speedytrial claim would fail. Indeed, that conclusionwould generally follow as a matter ofcourse howevergreat the delay, so long asDoggett couldnotshow specificprejudice to his defense
.

. . . [O]n the other hand,
... Doggettwouldprevail ifhe could showthat the Governmenthad intentionally held back in its prosecution ofhimto 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 negligentone wouldpresentan overwhelming casefor dismissal. Between diligent prosecution and bad-faith delay, official negligence in bringing an accused to trial occupies the middle ground. While not compelling reliefin every case where bad-faith delay would make reliefvirtually automatic, neither is negligence automatically tolerable simply because the accused cannot demonstrate exactly how it has prejudiced him
.... Barker made it clear that "differentweights [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, itstilljctlls on the wrongside ofthe divide between acceptable and unacceptable reasons for delaying a criminal prosecution once it has begun. And such is the nature ofthe prejudice presumed that the weightwe assign to official negligence compounds over time as thepresumption of evidentiaryprejudice grows. ... Condoning prolonged and unjustifiable delays inprosecution would bothpenalize many defendants for the state's fault and simply encourage the governmentto gamble with the interests ofcriminal suspects assigned a lowprosecutorial priority
.... To be sure, to warrantgranting relief, negligence unaccompaniedby particularizedtrialprejudice musthave lasted longer than negligence 26No. 86633-3
This analysis requires a showing ofparticularizedprejudice when shorter delays and no governmentbad faith are involved. Presumedprejudice is recognized only in the
case ofextraordinary delay, exceptwhen 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 fromDoggettcourts '"generally have found presumedprejudice only in cases in which thepost-indictment delay lasted at least five years exceptwhere the government was responsible for the delay by virtue ofsomethingbeyond simple negligence."' !d. (quoting UnitedStates 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 presumedprejudice only in cases in whichthe post-indictment delay lasted at least five years. See, e.g., Doggett, 505 U.S. at 658, 112 S. Ct. 2686 (findingpresumedprejudice after a government-caused delay ofsix years); [UnitedStates v.] Bergfeld, 280 F.3d [ 486,] 488 [(5th Cir.2002)] (findingpresumedprejudice after a delay offive years and three months butnoting that, "[h ]adthe delay been considerably shorter, [the defendant] might well have beenproperly required to demonstrate prejudice"); UnitedStates v. Cardona, 302 F.3d 494, 499 (5th Cir.2002) (findingpresumedprejudice after a delay offive and one-halfyears); UnitedStates v. Brown, 169 FJd 344, 350 (6th demonstrably causingsuchprejudice. 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 thanhe did but for the Government's inexcusable oversights. The portion ofthe 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."
... Whenthe Government's negligence thus causes delay six times as long as that generally sufficientto triggerjudicial review,
... and when the presumption ofprejudice, 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). 27No. 86633-3 Cir.1999) (finding presumedprejudice after a five and one-halfyear delay); UnitedStates 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 betweenthe time ofthe 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 ofthe Barker balancing test does not weigh heavily in [the defendant's] favor. Numerous cases exemplifythis part oftheBarker analysis as more fully explained in Doggett. E.g., UnitedStates v. Malina-Solorio, 577 F.3d 300, 307 (5th Cir. 2009); Howard, 218 F.3d at 564-65; Hills, 618 F.3d at 632; UnitedStates v. Toombs, 574 F.3d 1262, 1275 (lOth Cir. 2009) ("[i]nDoggettv. UnitedStates, the Supreme Court heldthat ifthere is extreme delay, the defendant need not present specific evidence ofprejudice and instead may rely on the presumption ofprejudice created by the extreme delay"). The delay in Ollivier's case is not lengthy enoughto constitute extreme delay warranting thepresumption ofprejudice. 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 presumedprejudice); UnitedStates v. Williams, 557 F.3d 943, 950 (8th Cir. 2009) (400-day "delay was not ofsuch length to eliminate the need to show particularizedprejudice and because there is no evidence that the delay impeded [the defendant's] defense or threatenedto deprive him ofa fair trial,
...there was no Sixth Amendmentviolation"). The next issue, therefore, is whetherMr. Ollivier has establishedparticularized prejudice that would weigh heavily against the State. As mentioned, the three types of
28No. 86633-3 prejudice identified in Barker andDoggett are oppressive pretrial incarceration, anxiety and concern ofthe accused, and the possibility that the defendant's defense will be impaired by dimming memories and loss ofexculpatory evidence. Oppressive Pretrial Incarceration While Ollivier spent almost two years injail awaiting his trial this is not, on its face, oppressive. Periods ofincarceration as long or longer have been found not oppressive. E.g., Hartridge v. UnitedStates, 896 A.2d 198 (D.C. 2006) (27 months); UnitedStates 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 oftime, withoutmore, cannot show undue oppression); UnitedStates 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 oppressiveto a degree beyond thatwhich necessarily attends imprisonment"). Moreover, his complaints aboutjail conditions do not suggest that conditions were oppressive; rather, the conditions are commonto incarceration. 12 Undue Anxiety and Concern Anxiety and concern are often experienced by defendants awaiting trial. "[T]he second type ofprejudice
... is always presentto 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); UnitedStates v. Henson, 945 F.2d 430, 438 (1st Cir.
12 Ollivier complains that he was prejudicedbecause ofthe effect ofthe continuances onhis potential for release on bond. However, he has failed to comprehensibly explain aconnection between the delay and the prejudice that he claims was the result. 29No. 86633-3 1991) ("considerable anxiety normally attends the initiation and pendency ofcriminal charges; hence only 'unduepressuresl are considered"); UnitedStates v. Dirdenl 38 F.3d 1131l 1138 (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 ofDefense The most important ofthe three interests is protection against impairment ofthe defense because ifthe 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 thatresulted in the delay ofwhich he complains were requestedby defense counsel in order toprepare an adequate defense. Thus, any impairment ofthis interest mustbe weighed against the benefits obtained viathe continuances, such as the records pertaining to the honesty.or dishonesty ofthe detective who soughtthe search warrant. Further, although he expresses concern about one ofhis witnesses' ability to recall and testify about matters, the witness did testify and consistently with Ollivier's account ofevents, 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 ofhis defense that might be implicated concerns whether witnesses could recall the facts pertaining to his claimthat officers failed to give him a

30No. 86633-3
copy ofthe search warrant. But as we explain below, a copy ofthe search warrant was posted at the apartment and no violation ofCrR2.3(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 ofthe defense; although Ollivier objectedto most ofthe 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 ofactual prejudice; and because the delay was not sufficiently extraordinaryto be presumedprejudicial, Ollivier was required to show particularizydprejudice 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 theAffidavit in Support of the Search Warrant Ollivier challenges the seizure ofthe computers and other property on the grounds ofan 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 ofthe 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

31No. 86633-3 only on a determination ofprobable cause. State v. Jackson, 150 Wn.2d 251, 264, 76 P.3d 217 (2003). Probable cause exists whenthe affidavit in support ofthe search warrant "sets forth facts and circumstances sufficientto establish a reasonable inference that the defendant is probably involved in criminal activity and that evidence ofthe crime may be found at a certain location." !d. Affidavits in support ofa search warrant are examined in a commonsense, not ahypertechnical manner, and doubts are to be resolved in favor ofthe warrant. State v. Chamberlain, 161 Wn.2d 30, 41, 162 P.3d 389 (2007); Jackson, 150 Wn.2d at 265. PreliminaryShowing of MaterialMisrepresentation or Omission A search warrant may be invalidated ifmaterial falsehoods were included in the affidavit intentionally (deliberately) or with reckless disregard for the truth, or ifthere
were deliberate or reckless omissions ofmaterial 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). Ifthe defendant makes a substantial preliminary showing ofsuch a material misrepresentation or omission, the defendant is entitled to a Franks 13 evidentiary hearing. Garrison, 118 Wn.2d at 872. Ifat the hearing the defendant establishes the allegations, then the material misrepresentation must be stricken
or the omitted material mustbe included and the sufficiency ofthe affidavit then assessed
as so modified. State v. Cord, 103 Wn.2d 361,367,693 P.2d 81 (1985). Ifat thatpoint

13 Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). 32No. 86633-3 the affidavit fails to support a finding ofprobable cause, the warrant will be held void and evidence obtained when the warrantwas executed must be suppressed. 

### ld. 14 Here, Ollivier made apreliminary showing thattriggered 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 containingpornographic magazines with photographs ofunclothed children under 16 years ofage in sexually explicitposes for sexual gratification. The roommate had actually told her that Ollivier kept a red boxwithpornography, including "Playboy" magazines and "BarelyLegal" magazines. Clerk's Papers at 233 (Finding ofFact 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 ofchildren under 10, when the roommate actually said only that he saw Ollivier viewing computer images. QualifyingInformation 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 establishprobable cause to support issuance ofthe search warrant.

14 A similar analysis applies when information obtained by an unconstitutional search is included in an affidavit ofprobable cause. The illegally obtained information may not be used to support the warrant and the court must viewthe warrant without the illegally obtained information and determine whether the remaining facts in the affidavit are sufficientto establishprobable cause to support the search warrant. Then, ifthe probable cause is lacking, the warrant is invalidated and evidence seizedpursuantto the warrant mustbe 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). 33No. 86633-3 The determination whetherthe 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. Itstates 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 ofthe 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 1 0-day period looked at many photographs on his personal home computer at a specified address and these photographs
were ofchildren under 10 years ofage who wereposed, deliberately exposing their genitals. Anderson also told the CCO that he saw Ollivier view depictions ofminors 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 prepubescentbecause oftheir physical characteristics (which were described) and also said that while he lived with Ollivier, Ollivier viewed childpornography 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,

15Aguilar 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 byIllinois v. Gates, 34No. 86633-3
359 n.l, 275 P.3d 314 (20 12). This standard has two prongs. Thebasis ofknowledge prong requires that the affidavit contain "sufficient facts to convince a reasonable person ofthe 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 canbe made that the informant is credible or the informationreliable. State v. Jackson, 102 Wn.2d432, 435, 688 P.2d 136 (1984). When a citizen informantprovides information, a relaxed showing ofreliability suffices "because there is less risk ofthe 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 deemedpresumptively 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 ofa citizen informant"); Charles W. Johnson, Survey ofWashington Search andSeizure Law: 2005 Update, 28 SEATTLEU.

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 ofthe FourthAmendment. BothAguilar and Spinelli involvedtips from confidential informants and we recently acknowledged that theAguilar-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 theAguilar-Spinelli standard when anamed citizen informantprovided the information used to establishprobable cause. State v. Chamberlin, 161 Wn.2d 30, 41-42, 162 P.3d 389 (2007). 35No. 86633-3 L. REV. 467, 534-35 (2005) (and cases cited therein) (when a named informantprovides information in the form offacts and circumstances sufficiently detailed to establish personal knowledge, the informant may be presumedto be reliable when his or her identity is disclosed to the issuingjudge). The defendant mustrebut the presumption of reliability to overcome it. See Gaddy 152 Wn.2d at 73-74. The second prong, basis ofknowledge, may be satisfied by a showing that the informanthadpersonal knowledge ofthe facts providedto the affiant. State v. Vickers, 148 Wn.2d 91, 112, 59 P.3d 58 (2002). Here, Mr. Ollivier concedes thatAnderson had a basis ofknowledge as to whether there was pornography in the apartment. The concession is appropriate because Anderson lived in the apartment for a briefperiod and provided information about personal observations ofchildpornography on Ollivier's computer. Ollivier contends, however, that no presumption ofcredibility should attach because Anderson was under psychiatric care,jailed due to community custody violations atthe time he provided the information, and ifhe was found in possession ofchild pornography, he could have been punished, but none ofthis information was in the affidavit. These are appropriate facts to present in an effortto 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 aprior sex offender under the supervision ofa 

## ceo, and the fact he told the 

## ceo about childpornography in

36No.**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 underpsychiatric 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 thejudge could assess the reliability ofAnderson's information and the basis ofhis knowledge. CrR 2.3(d) Mr. Ollivier contends that the evidence found onhis computer must be suppressed because officers failed to present him with a copy ofthe search warrantbefore it was executed, as he says is required by CrR2.3(d). The State maintains that there is no such requirement under the rule. CrR2.3(d) provides in part: Execution and Return With Inventory. The peace officertaking property under the warrant shall give to the person from whom or from whosepremises the property is taken a copy ofthe warrant and a receipt for the property taken. Ifno suchperson is present, the officermay post a copy ofthe search warrant and receipt. We construe courtrules 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 ifan officertakes property pursuantto the warrant, then the officer "shall give" a copy ofthe warrant to the person from whosepremises the

37No. 86633-3 property is taken or post a copy ofthe warrant. 16 Nothing in the language ofthe rule says that a copy ofthe warrant mustbe provided before the search is begun. Here, property was taken and Detective Saario posted a copy ofthe warrant before leaving. We do not agree that there was aviolation ofthe rule. CONCLUSION We hold thatthe delay in bringing defendant Brandon Ollivier to trial, which resulted because ofnumerous continuances soughtby 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 Ollivierbecause his counsel acts as his agent when seeking continuances to further the defense, and his objections to these acts do not weigh in favor offinding a violation ofconstitutional speedy trial rights. Ifthey did, counsel's ability to provide effective assistance ofcounsel and the attorney-clientrelationship would be seriously undermined. We also hold that when misrepresentations are redacted from the affidavit in support ofthe search warrant authorizing the search ofOllivier's apartment, the affidavit contains sufficient information to establish probable cause to search. Finally, there is no requirement under CrR2.3(d) that a copy ofthe search warrant be presentedprior to commencement ofthe search, and a copy ofthe warrant was posted, satisfyingthe requirement that a copy be provided when property is seized under the warrant.

16 The rule is consistentwith "[t]he prevailing view in state and federal cases" that exhibiting or delivering a copy ofthe warrant "needonly be done priorto post-search departure bythe police." 2 WAYNER. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 4.12(a) (5th ed. 2012). 38No. 86633-3
We affirm the Court ofAppeals and affirm Ollivier's conviction.

39No. 86633-3

WE CONCUR:

40

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

No. 86633-3 CHAMBERS, J.

### * (dissenting)-Brandon Ollivier was arrested inApril 2007. His trial tookplace nearly two years later, in March 2009, after 22 continuances, during whichtime 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 ofthe Washington Constitution also protect Ollivier'srightto effective assistance ofcounsel. 

### State v. Thomas, 109 Wn.2d 222, 229, 743 P.2d 816 (1987). The majority, inmy view, forces a defendantto give up one ofthese two important fundamental rights in orderto maintainthe other. The courthas decided that in orderto assure a defendantreceives effective assistance ofcounsel, the defendant must waive his rightto a speedy trail, and ifhe does not, the court will do it for him. I do notread these two fundamental rights in the alternative. Ollivier was entitledto both effective assistance ofcounsel and a speedy trial. *Justice Tom Chambers is serving as ajusticepro tempore ofthe Supreme Court pursuantto 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 ofhis speedytrial rightbypermittinghis appointed counselto waive his rightto a speedy trial little by little, time andtime again, over Ollivier's strenuous objections. The courtmust be vigilant ofcollusion between counsel and defendant. Butbecause there are circumstances where appointed counsel may have unduly burdensome case loads, applying principles ofagency effectively strips the accused ofthe right ofa speedy trial, sacrificing itto the overworked lawyer to lessenthe lawyer's case load. 1 

### To such a profound misreading ofour constitutions, I cannot agree. I dissent. FACTS In 2007, Ollivier, a convicted sex offender, was living with another convicted sex offender, Eugene Anderson. Anderson was arrested inMarch 2007 for failure to register as a sex offender. While in custody, Andersontold his community custody officerthathe had seen Ollivier looking at childpornography
onthe 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 notbeginuntil March 9, 2009. Ollivierwas found guilty by ajury ofone count ofpossessing depictions ofminors engaged in

1 I 

### use the example ofthe 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 ofhis arrest until his trial, and hisjudgmentand sentence reflects a total credit of768 days in the King Countyjail. Before Ollivier's trial, thetrial court granted 22 motions for continuance. Ollivier objected, often strenuously, to every continuance butthe 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.preparationby a defense expert, vacationing defense attorney, vacationing detective, new investigator on the case, and delays in obtaining discovery material from the Department ofCorrections and the King County Sheriffs Office. As to the last example, Ollivier's attorney apparently had quite a lot oftrouble obtaining discovery from government agencies, andthat accounted for a significantportion ofthe delay. Out of22 continuances onlytwo
were requestedby the prosecution. However, some continuances requestedby the defense contain explanations that also implicate the State. E.g., 

### Clerk's Papers (CP) at 267 (prosecutorjuryduty); CP at 277 (prosecutor absent); CP at 290 (prosecutor on vacation). Butit is evidentthatmost ofthe continuances were requested by and grantedto the defense, not the State.
2 Ollivier may not have objected to one other continuance on February 15, 2008. See Report ofProceedings ofContinuanceHearings (RP) (Feb. 15, 2008) at 39. 3

### State v. Ollivier (Brandon Gene), 

### No. 86633-3 Chambers, J. (Dissenting)

It

### appears that at leastthree bondhearings occurred. Record ofProceedings ofContinuance Hearings (RP) (Nov. 30, 2007) at 27 (indicating abond 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 bondhearing sometime in Jan. 2008). The record does notreveal why Ollivierwas never released onbond, but Ollivier's attorney admittedthe judgehadruled unfavorably for Ollivier in one hearing in part "based on [the attorney's] assertion thatthe case would not be continuedbecause at thattime [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 herpriorities in order, and everything straightened out." VRP (Dec. 10, 2007) at 4. Fifteenmore months passedbefore Ollivierwent to trial. ANALYSIS The Sixth Amendment states: "In all criminal prosecutions, the accused shall enjoy the rightto a speedy andpublic trial." U.S. CoNST. amend. VI. The Washington Constitution article I, section 22 states: "Incriminal prosecutions the accused shall have the right
...to have a speedypublic trial." We review a claim 4

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

### (Dissenting)
ofdenial ofconstitutional 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 speedytrial right, an accused has another important constitutional right at stake, the right to effective assistance ofcounsel. CONST. art. I,§ 22; U.S. CONST. amend. VI; 

### Thomas, 109 Wn.2d at 229. Bothprotections are part ofthe bedrock foundation upon which ourjustice systemrests. A person cannot be forced to waive his orherrightto a speedytrial in order to maintain the right to effective assistance ofcounsel. 

### 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 obligedto choose between a speedytrial and effective assistance. 

### See State v. Price, 94 Wn.2d 810, 814, 620 P.2d 994 (1980). While these two fundamental rights may seem intension in a case like this, an accused is entitledto have both constitutional rights enforced. Boththe trialjudgehearing motions for continuances and the prosecutorhave a role in assuring both ofthese important constitutional rights are upheld. Our speedy trial analysis is "substantiallythe 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 athreshold to the Barker 

### inquiry, a defendantmust showthatthe length ofthe delay crossed a line from ordinary to presumptively prejudicial." Iniguez, 

### 167 Wn.2d at 283 (citingDoggettv. UnitedStates, 

### 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 ofthe delay, "focus[ing] on the extentto which the delay stretches pastthe bare minimum needed to trigger the Barker 

### analysis." Id. 

### at 283-84 (citingDoggett, 

### 505 U.S. at 652). Second, we examine the reason for the delay. ld. 

### at 284 (citingBarker, 

### 407 U.S. at 531). Third, we considerthe extent to which a defendant asserted his speedy trial rights. Id. 

### (citing Barker, 

### 407 U.S. at 531). Fourth, we considerthe prejudice to the defendant as a result ofthe delay. Id. 

### (citingBarker, 

### 407 U.S. at 532). The majority's analysis ofthree ofthe four Barker 

### factors relies heavily on the tension betweenthe defendant's rightto a speedy trial and rightto competent representation. Regarding the first factor-the length ofthe delay-themajority states that "the length ofthe 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, andthis 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-whetherthe defendant asserted his speedytrial right-the majority states that "[t]hethird factor
... does notweigh in Ollivier's favor, giventhathis objection cannot be given effect when his own counsel soughtthe continuances to prepare for trial." Id. 

### at 24. In essence, the majority finds that none ofthe first three factors weigh in Ollivier's favor because "[i]f
...the trial courthad denied counsel's requests for continuances that were neededto prepare for trial, then Ollivier might have a strong claimthatthe right to effective assistance ofcounsel had been denied." Id. 

### In other words, under the majority's analysis, Ollivier could have either effective assistance ofcounsel or a speedy trial, butnot both. I believe thatresult is unacceptable. My analysis ofthe first three factors consequently differs from the majority's analysis. I also disagree withthe majority's discussion ofthe fourth factor, as discussedbelow. THEFOUR SPEEDY TRIALFACTORS
1. 

### FirstFactor: Length ofDelay The parties in this case agree thatthe delay of23 months is presumptively prejudicial and triggers the Barker 

### analysis. However, the first factor focuses on how much longerthe delay was thanthe minimum needed to trigger the analysis. SeeIniguez, 

### 167 Wn.2d at 292. Iniguez

### rejected abright line period ofdelaythat 

### 7

### State v. Ollivier (Brandon Gene), No. 86633-3 Chambers, J. (Dissenting) triggers a presumption ofprejudice and emphasizedthat each case mustbe evaluatedupon its ownmerits. 

### Id. 

### at 291-92 (citing

### State v. Corrado, 94 Wn. App. 228, 231, 972 P.2d 515 (1999)). For guidance, we examinedprecedentwith similar facts. Courts in general have often found presumptiveprejudice at a delay ofabout eightmonths to one year. 

### Id. 

### In

### Iniguez, we found an eight month delay
was presumptivelyprejudicial underthe facts ofthe case. Id. 

### Underthe relatively straightforward facts and issues inthis case, eight months was sufficientto cross the line to presumptive prejudice. Ollivier'strial was delayed more than a full year beyond anyreasonable presumptivelyprejudicial time for a delay ofhis trial. It

### is not clearwhy the majority finds the reason for the delay-the second factor-significant in its analysis ofthe 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 injail is an exceptionally longtime for a noncomplex case such as this one3 

### and cannot be saidto 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 partupon experttestimony relating to an analysis ofthe 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. Fromthe defense's point of view it appears there were only two issues for trial: whetherthe images on the computer were Ollivier's orhis roommate's and whether the seizure ofthe computer was lawful. It 8

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

### J. (Dissenting)

constitutional mandate for a speedytrial. Overall this factor weighs heavily in favor ofthe defendant.
n. SecondFactor: Reason for Delay In general, this factor looks at fault-who is to blame for the delay-by asking "whetherthe government orthe 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 onwhether "the delay is due to trial preparation." Majority at 14. Butwho is to blame for the delay is notnecessarilythe same question as whetherthe delay is dueto the defense counsel's trial preparation. For example, inthis case, a large number ofcontinuances resulted from the failure of state agencies to timelyrespond 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 admittedthat she was simply "not prepared." RP (Sept. 5, 2008) at 51. Other examples ofthe reasons for delay are
numerous and many have beendelineated above. The defendanthimselfwas never appears also that the bulk ofthe delay occurred while defense counsel obtainedtwo records: records from the Department ofCorrections aboutthe 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 ofdishonesty. 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 shouldnotrot injailbecause an appointed defender is too overworkedto prepare his or her case for trial. I do not fault the trialjudge in this case. Oncethe case was assignedto the trialjudge only one continuance was permitted. Unfortunately, various presiding departmentjudges granted most ofthe continuances withouttaking any stepsto
ensure the trial would occur in a timely fashion. Some ofthe delay was causedby government agencies apparently notresponding to discoveryrequests andthese agencies were notparties before the court. Thejudge does nothave a specific duty underthe

### Barker analysis, but I would stress thatjudges are more thanpotted plants inthe corner ofthe courtroom. Andjudges are more thanumpires calling strikes and balls (although even umpires move the game along and do notpermit undue delays). I understandthis is not always an easytask for ajudge;judges shouldnot force cases to trial when counsel is unprepared. Nor shouldjudges interfere with attorney-clientrelationships. Butneither canthejudgepermitthe defendantto languish injail for anunreasonable length oftime merelybecause appointed counsel has too heavy a case load. Whenpractical and appropriate, judges should exercise the court's authority to control the calendar and move a
case forward in a timely fashion. Thatwas not done inthis 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-butneither am I 

### willing to hear the prosecutor complain. The prosecutor has no specific duty to assistthe defense in obtaining discovery from thirdparties. 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 ofthe state at their disposal, must constantly bear in mind ""'thata fearless, impartialdischarge of public duty, accompaniedbya spiritof fairness towardthe accused, is the highestcommendation 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) (quotingState 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 ofCorrections withoutthe State making efforts or suggestions to expeditethe process, the State is not in aposition, in my view, to protesttoo loudly. This factor does not weighheavily in favor of eitherparty in this case.
111. 

### ThirdFactor: 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 (citingBarker, 

### 407 U.S. at 528-29). We look atthe frequency and force ofthe defendant's objections, and we give strong evidentiary weightto a defendant's assertion ofhis rights. !d. at 295 (citing Barker, 

### 407 U.S. at 529). The decision thatthe majority would thrust upon criminal defendants to give up one oftwo fundamental rights is most apparent in its analysis ofthe third factor. The majority makes an agency argument thatno matterhow often or strenuously a defendant objects to continuing his trial, ifthe request for a continuance is made by the defendant's lawyer for the purposes ofpreparing for trial, thatrequest 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). Butthat case is entirely distinguishable. In fact, the Brill on 

### Court itselfemphasized the extremely narrow nature ofits holding: Barker's 

### formulation "necessarily compels courts to approach speedy trial cases on an adhoc 

### basis," and the balance arrived at in close cases ordinarily would notpromptthis Court's review. Butthe Vermont Supreme Courtmade a fundamental error in its application ofBarker 

### 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 

### notwhether defense counsel may indefinitely obtain continuances overthe specific objection ofthe defendant. Instead, the question in

### Brill on was twofold. The first question was whetherthe Vermont Supreme Court erredbyholding that a public defender's request for continuances maybe attributedto the State becausethe defender is assigned andpaidfor bythe State rather thanprivately retained. The Court answered yes. 

### Id. at 85 ("We holdthatthe Vermont Supreme Court erred in ranking assigned counsel essentially as state actors in the criminal justice system. Assigned counsel,just as retained counsel, act onbehalfoftheir
c 1ents.
. . . .



### 1. ") The second question was whetherthe Vermont Supreme Court failed to consider the fact thatthe defendant himselfwas plainly a bad actor in causingthe delay inhis own case. That fact weighedheavily againsthim inthe Court's decision, as is evident inthe above passage. The CourtnotedthatBrillon fired three ofhis attorneys andwas assigned new counsel sixtimes. 

### Id. at 86-88. Each time Brillon fired a lawyer, thejudge warnedhimthe motionto dismiss counsel wouldresult in him spending more time injail. 

### Id. at 87. The Court also made a point ofrepeatingthe concern voicedbythe dissent inthe Vermont State Supreme 13

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

### (Dissenting)
Court's decision below: "Butfor 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 thattheBrillon 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 speedytrial 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 suggestedthat Ollivier actively attemptedto delay his own case. Those were the only questions at issue inBrillon. Brillon simply does not stand for the principle that, based on agency, the powerto 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 of22 continuances. He asserted his rights constantly, and
evenprepared a five page letter on the subjectto thejudge 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 wasjust 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 ofthejudge'sruling in [the bondhearing] was based upon my assertion thatthe case wouldnotbe 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 thatthis case can be tried in September."); RP (Sept. 5, 2008) at 50 ("This is a case that needs to be completedbefore I rotate out ofmy unit so itwill be done by the first ofthe year."). Ollivier's frustration was apparent whenhe stated in January 2009 that "[Judge Gain] denied my bondhearingthat Ihad in Marchbecause I was going to trial inMay, guaranteed, were his promisedwords to
me. This is far pastMay." RP (Jan. 21, 2009) at 9. We do nothave any transcripts ofthe bond hearings, butthis assertion was not corrected by Ollivier's attorney, who was present, and it is consistent with her previous statement that an earlierbond hearing had turned out the same way because ofher assurance to the judge thattrial was imminent. The defendanthimselfdid nothingto delay the case and, ifanything, he strenuously objected to almost every continuance. To impute waiver ofhis speedy trial right to the defendant sitting injailbecause his lawyer, appointedbythe 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 defendantto waive his right to a speedytrial in orderto preserve his right to effective assistance ofcounsel. The majority argues thatifa defendant's objections to continuances granted at defense counsel's request are counted as assertions ofthe defendant's speedy trial right, defense counsel and the defendant might collude to later obtain a reversal. I concede that is a concern. Butit is a concernthat should be dealt with
on a case by case basis, notwith a blanket rule that forces a defendantto waive a fundamental right. The majorityproposesjust such a blanketrule-that a defendant's "objections cannotbe given effect whenhis own counsel soughtthe continuances to prepare for trial." Majority at 24. Otherwise, the majority explains, "Olliviermight have had a strong claimthatthe right to effective assistance ofcounsel had been denied." I

### d. Atthe risk ofrepetition, I emphasize thatthis is tantamountto the majority suggestingthat Ollivier could not be permittedto asserthis speedytrial right 

### because he couldthen assert ineffective assistance ofcounsel. Imagine a case, much like this one, where, eachmonth, a defendant's courtappointed counsel requests a continuance overthe defendant's objection. Defense 16

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

### (Dissenting)
counsel, each month, asserts that she needsjustone 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 competentrepresentation, 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 woefullyunderpaid and overworked, this approach in practice effectively guts the rightto a speedy trial to save the right to effective assistance ofcounsel. The defendant is forced to give up the former right to receive the latter. Such a situation is simplyunacceptable. We can and must do better. There is no claim ofcollusion betweenthe defendant and his attorney inthis case. I would find this factor weighs heavily in favor ofthe defendant.1v. FourthFactor: Prejudice The importance ofthe speedytrial right is illustrated by the fourth and final factor in the Barker analysis. InIniguez, we described the application ofthe final factor as follows: "Prejudice isjudgedby looking atthe effect on the interests protected bythe rightto a speedy trial: (1) to preventharshpretrial incarceration, (2) to minimize the defendant's anxiety and worry, and (3) to limit impairmentto the defense." Iniguez, 167 Wn.2d at 295 (citingBarker, 407 U.S. at 532). Thus, 17

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

the fourth factor shows exactly whatinterests a defendant must give up whenthe courtforces the defendantto sacrifice his or her speedytrial right in orderto receive effective assistance. While impairmentto the defense is "the most serious" ofthe three aspects of prejudice, we cannot discountprejudice to the other interests protectedbythe speedytrial right, as identifiedbythe Supreme Court: prevention ofoppressive pretrial incarceration and minimizingthe anxiety and concern ofthe accused. 

### Barker, 407 U.S. at 532. Because I believe the majority's analysis ofthese other two aspects ofprejudice is seriously flawed, I address them first. Inthis case, the defendant spent almosttwo years injail awaitingtrial. His anxiety and worry is apparentthroughoutthe record. In

### Barker, the United States Supreme Court explained: We have discussedpreviouslythe societal disadvantages of lengthy pretrial incarceration, but obviously the disadvantages for the accused who cannot obtainhis release are evenmore serious. The time spentinjail awaitingtrial has a detrimental impact onthe individual. 

### Itoften means loss ofajob; it disrupts family life; and it enforces idleness. Mostjails offerlittle orno recreational or rehabilitative programs. Thetime spent injail is simply deadtime. Moreover, ifa defendant is lockedup, he is hindered in his ability to gather evidence, contactwitnesses, or otherwisepreparehis defense. 

### Imposing those consequences on anyone who has notyetbeen convicted is serious. It

### is especially unfortunate to impose them on those persons who are ultimately found to be innocent. Finally, even ifan accused is not incarceratedpriorto trial, he is still disadvantaged 18

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

### (Dissenting) byrestraints on his liberty and by living under a cloud ofanxiety, suspicion, and often hostility. 

### Barker, 407 U.S. at 532-33 (footnotes omitted) (emphasis added). The rightto a speedy trial protects againstpretrial incarceration and the anxietythat comes with the deprivation ofpersonal liberty and complete loss ofcontrol over one's own fate. As the Supreme Courtpassage above makes clear, it does not operate, as the majority suggests, only when incarceration is particularlyhorrific or anxietyis particularly intense. To hold otherwise severelyneuters the speedy trial right. Two years injail is a long time by any measure, andthe first two prongs ofthe prejudice analysis weigh in Ollivier's favor inthis case. Finally, the questionremains whether Olliviermust show some prejudice to his defense to gain reliefand, ifso, whetherhe has shown any here. Inthis case, there was some evidence ofprejudice because contestedrelevant facts were difficult to ascertain as a result offaded memories ofpolice officers and the defendant. One ofOllivier's primary claims relatedto the failure ofthe officers who searched his home to give him a copy ofthe warrant. That claim depended on the memories ofboththe defendant and the officers. Accordingto the Supreme Court, "[t]here is
...prejudice ifdefense witnesses are unable to recall accurately events ofthe distantpast." 

### Barker, 407 U.S. at 532. Accordingto the trial court's findings inthis case, the "officers testified truthfully based ontheirmemories, but 19

### State v. Ollivier (Brandon Gene), 

### No. 86633-3 Chambers, J. 

### (Dissenting)
had no recollection ofsome ofthe events." CP at 229. As a result, the court could find only that "[t]he defendant probably expressed an interest inbeing shown a copy ofthe search warrant, and probably was shown a copy ofthe warrant." !d. This is enoughto satisfy the third prong ofthe prejudice factor under the circumstances ofthis case. CONCLUSION Ollivierremained incarcerated for 23 months while his trial was continued 22 times. Ollivierpersonally and sometimes strenuously objectedto at least 19 of the continuances. The majority entirely dismisses Ollivier's objections and concludes thathe musthave waivedhis speedy trial right because otherwise, had his objections been sustained, he mighthave received ineffective assistance of counsel. I do notbelievethat is a choice courts can foist on defendants, nor do I thinkthis court can sacrifice the rightto a speedytrial in orderto preservethe right to effective assistance ofcounsel. I therefore conclude Ollivier's speedy trial rights were violated. I would reverse the Court ofAppeals and dismiss the charges against him.



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

### J. (Dissenting)

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