IN THE SUPREME COURT OF THE STATE OF WASHINGTON

)

STATE OF WASHINGTON, )

)

Petitioner, ) No. 98591-0

) 

v. )

)

LYNELL AVERY DENHAM, ) 

) 

Respondent. ) Filed: July 1, 2021

_______________________________)

GONZÁLEZ, C.J.— A valuable diamond was stolen from a jewelry store. 

Within days, Lynell Avery Denham sold that diamond. Police suspected Denham 

committed the burglary and got a warrant for his cell phone records. Cell site 

location information included in those records placed Denham’s phone near the 

jewelry store around the time of the burglary. Denham contends that the affidavits 

supporting the warrant for his phone records lacked specific facts that would 

suggest evidence of a crime would be found in those records. He also contends a 

video interview where he discussed sophisticated burglary techniques was 

improperly admitted. We reverse the Court of Appeals and affirm Denham’s 

conviction. 

FILE 

IN CLERK’S OFFICE

SUPREME COURT, STATE OF WASHINGTON 

JULY 1, 2021

THIS OPINION WAS FILED 

FOR RECORD AT 8 A.M. ON

JULY 1, 2021

ERIN L. LENNON

SUPREME COURT CLERK 
State v. Denham, No. 98591-0 

2 

FACTS

Someone burgled Mallinak Designs Jewelers over Veterans Day weekend in 

2016. Mallinak Designs had an elaborate security system and stored a great deal of 

valuable jewelry in a large, heavy safe. Before the burglary, someone had 

removed an interior lock on a utility room that was accessible through a roof hatch, 

and the burglar entered through that roof hatch while the store was closed. Doors 

were cut or sabotaged, the alarm system was deactivated, and the safe’s locking 

mechanisms were disabled. 1

 The burglar made off with a great deal of jewels and 

jewelry, including a 5.29 carat diamond with certification papers from the 

Gemological Institute of America. No suspect fingerprints were left, but Frank 

Mallinak, the store owner, did find a small plastic piece that he did not recognize. 

Within days of the burglary, Denham sold the stolen 5.29 carat diamond, 

along with its certification paper work. This sale was the basis of a trafficking 

charge. Denham used one of his own cell phones several times to negotiate the 

sale of the diamond. Over the next few weeks Denham pawned or sold jewels and 

jewelry stolen from Mallinak Designs at various jewelry and pawn shops and 

purchased a new Range Rover with a large cash down payment. He also took to 

1 Police later determined that an alarm went off at the jewelry store over the weekend, but the 

particular alarm system in place required two alarms before the police would be summoned. 

Two alarms were required to cut down on false alarms.
State v. Denham, No. 98591-0 

3 

wearing “a huge blue stone gem necklace” that matched one taken in the burglary. 

Clerk’s Papers (CP) at 6. 

Meanwhile, Allan O’Neill, a Kirkland police detective, ran a search through 

a database that tracked sales at pawn shops and saw Denham had been pawning 

jewelry stolen from Mallinak Designs. Based on discussions with Frank Mallinak, 

the shop operators, and one of Denham’s probation officers, Detective O’Neill 

successfully applied for a search warrant for Denham’s registered address in 

Tacoma. The original warrant application was very detailed about the burglary and 

the sale of stolen jewels. Detective O’Neill also successfully sought authority to 

seize the Range Rover and to seize and image cell phones for a later search.

Denham was not home when the warrant was served. Police found drawings 

and schematics of safes, and new headlamps, one of which was missing a piece 

similar to that found at Mallinak Designs. They also seized the Range Rover. 

They did not find any cell phones. 

After the search, the detective wrote an addendum to the warrant affidavit 

seeking five months of records associated with two phone numbers Denham had 

given to his probation officers and to the purchaser of the diamond. According to 

the original affidavit, the purchaser of the diamond had reached Denham at one of 

those numbers. The addendum sought subscriber information, payment details, 

billing records, inbound and outbound call records, stored communications, stored 
State v. Denham, No. 98591-0 

4 

images, location data, physical addresses of cell towers used by the phones, 

connection logs, and much more. The State acknowledges, correctly, that this was 

overbroad both in time and scope. Both the original warrant application and the 

addendum contained what appeared to be boilerplate language describing the role 

of cell phones in people’s lives and the information that can be gleaned from the 

phones and the phone records. The expanded warrant was granted. 

The phone company’s records included cell site location information that 

established multiple calls to or from Denham’s phone were relayed through a cell 

phone tower that was about 550 feet from Mallinak’s store around the time of the 

burglary. Denham lived in Tacoma, some distance away. 

Denham was arrested and charged with second degree burglary and first 

degree trafficking in stolen property. Prior to trial, the State sought to admit 

recordings of two lengthy 2008 interviews with police where Denham discussed 

sophisticated methods of breaking into safes. These interviews explored the 

techniques Denham had previously used, including how he bypassed alarms, cut 

through Sheetrock, cracked safes, and avoided leaving evidence. The State sought 

to admit recordings of these interviews for identity, knowledge, and modus 

operandi. 

The trial court did “not admit[] the various bank robberies as 404(b), but 

[did] admit[] the knowledge that [Denham] admitted to.” 3 Verbatim Tr. of 
State v. Denham, No. 98591-0 

5 

Proceedings (VTP) (Feb. 20, 2018) at 226. Specifically, the court admitted 

Denham’s “admissions as to his skill set, which would make it possible for him to 

do these burglaries.” Id. at 229. 

Denham was convicted of second degree burglary and first degree 

trafficking in stolen property at a bench trial. The trial judge specifically cited the 

fact that Denham had made phone calls that were routed through the cell tower in 

the parking lot of Mallinak Designs around the time of the burglary. She also cited 

the lengthy interviews Denham had given on burglary techniques and his 

specialized knowledge on burglary. 

For the first time on appeal, Denham challenged the sufficiency of the nexus 

between the cell phone and the crimes. The Court of Appeals found that the 

question was appropriate for review under RAP 2.5(a)(3) and that the warrant 

applications did not establish a sufficient nexus between the phone records and the 

crime. State v. Denham, No. 78704-7-I, slip op. at 5, 13 (Wash. Ct. App. Apr. 27, 

2020) (unpublished), https://www.courts.wa.gov/opinions/pdf/787047.pdf. The 

Court of Appeals also held that despite the fact the trial judge rejected the State’s 

attempt to admit the 2008 recordings for identity or modus operandi, it used the 

recordings for that purpose without establishing that the crimes were specific

enough for those purposes. Id. at 17. It found the errors were not harmless and 

reversed Denham’s convictions. Id. at 18. We granted review. The Washington 
State v. Denham, No. 98591-0 

6 

Association of Criminal Defense Lawyers, the American Civil Liberties Union of 

Washington, the King County Department of Public Defense, and the Washington 

Defender Association submitted an amici brief in support of Denham. 

1. CELL PHONE RECORDS2

Our constitutions protect individual privacy against state intrusion. U.S. 

CONST. amend IV; WASH. CONST. art. I, § 7. State agents must have either the 

authority of a warrant or a well-established exception to the warrant requirement to 

lawfully intrude into an individual’s private affairs. State v. Ladson, 138 Wn.2d 

343, 350, 979 P.2d 833 (1999) (quoting City of Seattle v. McCready, 123 Wn.2d 

260, 273, 868 P.2d 134 (1994)). This constitutional protection extends to cell 

phone location information held by cell phone companies. See State v. 

Muhammad, 194 Wn.2d 577, 580, 451 P.3d 1060 (2019); Carpenter v. United 

States, __ U.S. __, 138 S. Ct. 2206, 2220, 201 L. Ed. 2d 507 (2018). As the United 

States Supreme Court observed, “[T]he time-stamped data provides an intimate 

window into a person’s life, revealing not only his particular movements, but

2 The State properly concedes that the warrant was overbroad because there was no probable 

cause supporting the conclusion that evidence of a crime would be found in all of the categories 

of information listed. Suppl. Br. of Pet’r at 10 n.2. There is nothing in the affidavits that 

suggests billing records, pictures, or location data acquired after the charging period, for 

example, would be germane to any criminal activity. But Denham has not challenged the 

warrant as overbroad and does not contend that evidence seized under the overbroad portions of 

the warrant was admitted. If it had been, the remedy would have been suppression of any 

evidence seized due to the overbreadth. See State v. Perrone, 119 Wn.2d 538, 556, 834 P.2d 611 

(1992) (citing United States v. Fitzgerald, 724 F.2d 633, 637 (8th Cir. 1983)). 
State v. Denham, No. 98591-0 

7 

through them his ‘familial, political, professional, religious, and sexual 

associations.’” Carpenter, 138 S. Ct. at 2217 (quoting United States v. Jones, 565 

U.S. 400, 415, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012) (Sotomayor, J., 

concurring)); see also Muhammad, 194 Wn.2d at 596 (Wiggins, J., lead opinion) & 

612 (Gordon-McCloud, J., opinion) 

Here, officers had a search warrant. Denham challenges the adequacy of the 

affidavits supporting the application for that warrant. He contends the affidavits 

were based on generalizations and did not establish that evidence of wrongdoing 

would likely be found in his phone records. 

“A search warrant should be issued only if the application shows probable 

cause that the defendant is involved in criminal activity and that evidence of the 

criminal activity will be found in the place to be searched.” State v. Neth, 165 

Wn.2d 177, 182, 196 P.3d 658 (2008) (citing State v. Thein, 138 Wn.2d 133, 140, 

977 P.2d 582 (1999)). There must be “a nexus between criminal activity and the 

item to be seized and between that item and the place to be searched.” Id. at 183 

(citing Thein, 138 Wn.2d at 140). The warrant must also describe with 

particularity the place to be searched and the things to be seized. Perrone, 119 

Wn.2d at 546-47 (citing U.S. CONST. amend IV). A trial judge’s decision to 

authorize a search warrant is normally reviewed for abuse of discretion. Neth, 165 

Wn.2d at 182 (citing State v. Maddox, 152 Wn.2d 499, 509, 98 P.3d 1199 (2004)). 
State v. Denham, No. 98591-0 

8 

“Although we defer to the magistrate’s determination, the trial court’s assessment 

of probable cause is a legal conclusion we review de novo.” Id. (citing State v. 

Chamberlin, 161 Wn.2d 30, 40-41, 162 P.3d 389 (2007)). 

Search warrants may not be based only on generalizations. Instead, 

our precedent requires probable cause be based on more than conclusory 

predictions. Blanket inferences of this kind substitute generalities for the 

required showing of reasonably specific “underlying circumstances” that 

establish evidence of illegal activity will likely be found in the place to be 

searched in any particular case. We reiterate that “[p]robable cause to 

believe that a man has committed a crime . . . does not necessarily give rise 

to probable cause to search his home.” 

Thein, 138 Wn.2d at 147-48 (alterations in original) (quoting State v. Dalton, 73 

Wn. App. 132, 140, 868 P.2d 873 (1994)); see also State v. Keodara, 191 Wn. 

App. 305, 310, 316, 364 P.3d 777 (2015) (generalized statements that gang 

members take inculpatory pictures of themselves not sufficient to search a 

suspect’s seized telephone). 

Denham contends that the search warrant affidavits supporting the seizure of 

Denham’s phone records relied on the same sort of generalizations rejected in 

Thein. We disagree. 

These affidavits present reasonable grounds to believe that the phones 

associated with the phone numbers belonged to Denham based on Denham’s own 

use of the numbers with his probation officers and with various businesses, that 

Denham had the phones around the time of the burglary because of specific facts 
State v. Denham, No. 98591-0 

9 

suggesting he had the phones days before and after the date in question, that 

Denham burgled the store, and that Denham trafficked distinctive pieces stolen 

from the store. They also allege that Denham had both phones at the time of the 

burglary and used one to arrange the sale of the diamond that was the basis of the 

trafficking charge.3

 Taken together, this is sufficient to raise a reasonable 

inference that evidence of burglary would be found in the cell site location 

information under Neth, 165 Wn.2d at 182 (citing Thein, 138 Wn.2d 140). The 

fact that there are some generalizations in the inferential chain does not defeat the 

reasonableness of the inference.4

 

We find illustrative Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. 

Ed. 2d 527 (1983). In Gates, Illinois police had received an anonymous letter 

accusing a couple of dealing drugs. Id. at 225. The letter contained a great deal of 

specifics about the couple’s methodology. Id. Police surveilled the couple, 

confirmed many of the seemingly innocuous details in the letter, and, based on 

3 We respectfully disagree with the dissent that there is nothing in the affidavits linking the cell 

site location information to the crime. The warrant affidavits support an inference that Denham 

had at least one of the cell phones on him when he committed the burglary. CP at 437-38. That 

in turn supports an inference that evidence would be found in the cell site location information

for the weekend of the burglary. 

4 We also respectfully disagree with the dissent that this opinion overrules Thein. Thein remains 

good law and stands for the proposition that a search warrant cannot be based on generalizations 

about the supposed common habits of drug dealers. Thein, 138 Wn.2d at 147-48. There must 

be “a factual nexus between the evidence sought and the place to be searched.” Id. at 148 (citing 

State v. Olson, 73 Wn. App. 348, 357, 869 P.2d 110 (1994)). There was such a nexus between 

Denham’s location on the weekend of the burglary and his cell site location information. 
State v. Denham, No. 98591-0 

10

both the letter and the investigation, successfully applied for a warrant to search 

the couple’s car. Id. at 225-26. The United States Supreme Court affirmed. While 

it suggested the anonymous letter alone would likely not be enough, the totality of 

the circumstances created probable cause to believe evidence of a crime would be 

found in the car. Id. at 227, 230. It observed: 

“In dealing with probable cause, . . . as the very name implies, we deal with 

probabilities. These are not technical; they are the factual and practical 

considerations of everyday life on which reasonable and prudent men, not 

legal technicians, act.” [Brinegar v. United States, 338 U.S. 160], 175[, 69 

S. Ct. 1302, 93 L. Ed. 1879 (1949)]. Our observation in United States v.

Cortez, 449 U.S. 411, 418[, 101 S. Ct. 690, 66 L. Ed. 2d 621] (1981),

regarding “particularized suspicion,” is also applicable to the probable cause

standard:

“The process [of determining the existence of probable cause] does 

not deal with hard certainties, but with probabilities. Long before the 

law of probabilities was articulated as such, practical people 

formulated certain common-sense conclusions about human behavior; 

jurors as factfinders are permitted to do the same—and so are law 

enforcement officers.” 

Gates, 462 U.S. at 231-32 (first alteration in original). 

The judge did not abuse her discretion in approving the warrant. Reading 

the affidavits as a whole, the judge could reasonably infer that evidence of the 

burglary would be found in Denham’s cell site location information. While we do 

not countenance how overbroad this warrant was, no overbreadth challenge is 

before us, and nothing in the trial judge’s findings of fact suggests she relied on 
State v. Denham, No. 98591-0 

evidence seized under overbroad portions of the warrant.5

 The phone records were 

not improperly used to show Denham’s associations, pictures, musical tastes, or 

the content of his communications. See State v. Juarez DeLeon, 185 Wn.2d 478, 

489, 374 P.3d 95 (2016) (admission of music found on cell phone to show gang 

affiliation improper).6

 Accordingly, we reverse the Court of Appeals. 

2. PRIOR BAD ACTS

The trial court admitted two video recordings of interviews with Denham 

that established he had the sort of sophisticated knowledge about how to bypass 

alarms and drill into safes that would have been required to commit this burglary. 

Denham argues that the recordings were not properly admitted because knowledge 

of sophisticated burglary techniques is not an element of either burglary or 

trafficking. 

5

If it was properly before us, we might be inclined to agree with our dissenting colleague that 

the admission of evidence that most of Denham’s calls were relayed through the cell tower 

closest to his Tacoma residence was error. See 8 VTP (Mar. 29, 2018) at 638. Denham, 

however, has not brought this challenge, perhaps because the trial judge did not mention the fact 

in her oral ruling and the written rulings (prepared by the prosecutor’s office) did not make it a 

central fact but simply one of 39 findings of fact. CP at 319-23. 

6 Amici contend that cell phones and cell phone records often contain material that is protected 

by the First Amendment and ask us to impose the scrupulous exactitude standard used for 

warrants on warrants seeking to seize such material. Items presumptively entitled to First 

Amendment protection must be described with exacting scrutiny in warrants. Perrone, 119 

Wn.2d at 550 (citing United States v. Hale, 784 F.2d 1465, 1469 (9th Cir. 1986)); see also

Charles W. Johnson & Debra L. Stephens, Survey of Washington Search and Seizure Law: 2019 

Update, 42 SEATTLE U. L. REV. 1277, 1362 (2019). But given that Denham has not challenged

the warrant on this ground, the record and argument for extending the scrupulous exactitude 

standard has not been developed. We decline to consider it here and await a case where it is 

more fully presented.

11
State v. Denham, No. 98591-0 

12

“Under ER 404(b) evidence of other crimes, wrongs, or acts is 

presumptively inadmissible to prove character and show action in conformity 

therewith.” State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995) (citing 

Carson v. Fine, 123 Wn.2d 206, 221, 867 P.2d 610 (1994)). However, “such 

evidence may be admissible for other purposes ‘such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake 

or accident.’” Id. (quoting ER 404(b)). Specifically, 

[t]o admit evidence of other crimes or wrongs under Washington law, the

trial court must (1) identify the purpose for which the evidence is sought to

be introduced, (2) determine whether the evidence is relevant to prove an

element of the crime charged and (3) weigh the probative value of the

evidence against its prejudicial effect. Additionally, the party offering the

evidence of prior misconduct has the burden of proving by a preponderance

of the evidence that the misconduct actually occurred.

State v. Lough, 125 Wn.2d 847, 853, 889 P.2d 487 (1995) (footnote omitted) 

(citing State v. Dennison, 115 Wn.2d 609, 628, 801 P.2d 193 (1990); State v. Benn, 

120 Wn.2d 631, 653, 845 P.2d 289 (1993)). Evidence is relevant if it makes a fact 

of consequence more probable. Powell, 126 Wn.2d at 259 (citing Dennison, 115 

Wn.2d at 628). A trial court’s decision to admit evidence of prior bad acts is 

reviewed for abuse of discretion. Id. at 258 (citing Washburn v. Beatt Equip. Co., 

120 Wn.2d 246, 283, 840 P.2d 860 (1992)). 

The trial judge properly declined to admit these videos for identity or modus 

operandi. Evidence of prior bad acts admitted for modus operandi or identity 
State v. Denham, No. 98591-0 

13

“must be so unique that mere proof that an accused acted in a certain way at a 

certain time creates a high probability that he also committed the act charged.” 

State v. Coe, 101 Wn.2d 772, 777, 684 P.2d 668 (1984) (citing United States v. 

Silva, 580 F.2d 144, 148 (5th Cir. 1978)). ‘“The device used must be so unusual 

and distinctive as to be like a signature.’” Id. (quoting MCCORMICK ON EVIDENCE

§ 190, at 449 (Edward W. Cleary ed., 2d ed. 1972)). Nothing in this record

suggests that entering through a roof hatch, disabling alarms, or drilling through 

safes are particularly unusual or distinctive. 

Denham analogizes this case to Powell. Powell considered whether the trial 

court erred in admitting prior spousal assaults, including attempts to strangle the 

victim, in a murder case where the victim was strangled to death. 126 Wn.2d at 

247-48. This court found that much of the evidence was properly admitted to show

motive. Id. at 260. We found, however, that the prior bad acts were not admissible 

to show intent because intent was not a disputed issue. “Proof of the act of manual 

strangulation as well as the other evidence presented in this case established an 

intent to kill. Thus, intent is implicit in the doing of the act. The trial court erred 

in admitting evidence on this basis.” Id. at 262. 

But in Powell, the question was whether the probative value of highly 

inflammatory evidence (including prior assaults on the same victim) outweighed 

its prejudicial effect in the context of the mens rea element. Here, this evidence 
State v. Denham, No. 98591-0 

14

was not offered to establish mens rea. The fact Denham had the skills to pull off a 

sophisticated burglary has some tendency to make a fact of consequence—that he 

did commit this sophisticated burglary—considerably more likely. 

We recognize that narrowly read, our case law sometimes suggests that prior 

bad act evidence has to be relevant to an element of the crime charged and 

sometimes that it merely has to make a fact of consequence more likely. Compare 

Powell, 126 Wn.2d at 258, with State v. Vy Thang, 145 Wn.2d 630, 642, 41 P.3d 

1159 (2002). That appears to be an artifact of the way the issues were presented 

in the individual cases. Evidence is relevant if it makes a fact of consequence 

more likely. That is not limited to specific elements. 

We hold that the trial court did not abuse its discretion in admitting these 

videos. They tended to make a fact of consequence more likely, and they were not 

so inflammatory that their prejudicial effect outweighed their probative value. 

CONCLUSION

We hold that the warrant application contained sufficient detail to conclude 

that evidence of a crime would more likely than not be found in the cell site 

location information in telephone company records of Denham’s cell phones and 

that the video recordings were properly admitted. Accordingly, we reverse the 

Court of Appeals and affirm Denham’s convictions. 
State v. Denham, No. 98591-0 

15

 ____________________________

WE CONCUR:

_____________________________ ____________________________

_____________________________ ____________________________

_____________________________ ____________________________

_____________________________ ____________________________
State v. Denham (Lynell Avery)

Whitener, J., dissenting 

No. 98591-0 

WHITENER, J. (dissenting)—Historical cell site location information (CSLI) 

is protected by article I, section 7 of our constitution and the Fourth Amendment of 

the United States Constitution. State v. Muhammad, 194 Wn.2d 577, 580, 451 P.3d 

1060 (2019) (Wiggins, J., lead opinion), 628 (Gordon McCloud, J., opinion); 

Carpenter v. United States, ___ U.S. ___, 138 S. Ct. 2206, 2220, 201 L. Ed. 2d 507 

(2018). Any search of CSLI violates article I, section 7 absent authority of law and

violates the Fourth Amendment when it is unreasonable; both requirements are 

satisfied by a valid warrant. State v. Olsen, 189 Wn.2d 118, 126, 399 P.3d 1141 

(2017); Carpenter, 138 S. Ct. at 2221.

“The warrant requirement is not a mere formality; it ensures that necessary 

judgment calls are made ‘by a neutral and detached magistrate,’ not ‘by the officer 

engaged in the often competitive enterprise of ferreting out crime.’” Mitchell v. 

Wisconsin, __ U.S. __, 139 S. Ct. 2525, 2543, 204 L. Ed. 2d 1040 (2019) (internal 

quotation marks omitted) (quoting Schmerber v. California, 384 U.S. 757, 770, 86 

S. Ct. 1826, 16 L. Ed. 2d 908 (1966)). This holds truer still in Washington state,

where “[w]e have repeatedly recognized that the[ ] ‘privacy protections [provided 
State v. Denham (Lynell Avery), No. 98591-0 

Whitener, J., dissenting 

2 

by article I, section 7 of our constitution] are more extensive than those provided 

under the Fourth Amendment.’” State v. Peck, 194 Wn.2d 148, 169, 449 P.3d 235 

(2019) (quoting State v. Valdez, 167 Wn.2d 761, 772, 224 P.3d 751 (2009)). For a 

warrant to properly issue in Washington, we have long required that warrant 

applications demonstrate specific factual nexus between the alleged criminal activity 

and the target of a search. State v. Thein, 138 Wn.2d 133, 140, 147-48, 977 P.2d 582 

(1999). 

Today, the majority upholds the issuance of a warrant to search CSLI based 

on the assumption that cell phone owners typically keep their phones on them at all 

times. Under this rule, it appears that the only facts needed to support a warrant for 

a search of CSLI are that someone owned a cell phone and that there is probable 

cause to believe that they committed a crime around the time they owned that phone. 

With this rule in place, a warrant to search CSLI issues almost automatically, 

transforming the warrant requirement into a “mere formality,” Mitchell, 139 S. Ct. 

at 2543, and making cell phones into “‘24-hour’ surveillance tool[s].” Muhammad,

194 Wn.2d at 585 (Wiggins, J., lead opinion). Such limited protection is not what 

the state and federal constitutions demand. 

Precedent requires the opposite conclusion. In Lynell Avery Denham’s case, 

the affidavits supporting the application for the warrant lacked probable cause to 

search the CSLI because they lacked the required nexus between the crime of 
State v. Denham (Lynell Avery), No. 98591-0 

Whitener, J., dissenting 

3 

burglary and the CSLI—or, indeed, between burglary and the cell phones 

themselves. The affidavits instead dealt only in generalities and lacked particularity

and, thus, were insufficient to establish probable cause. See Thein, 138 Wn.2d at

147-48. The search therefore violated article I, section 7 and the Fourth Amendment.

Allowing this evidence in was not harmless; I therefore would affirm the Court of 

Appeals in part: we must vacate Denham’s convictions and remand for a new trial 

with the CSLI evidence suppressed.1

ANALYSIS

The privacy concerns posed by cell phones emerged as the technology 

developed over the past decades. When the first cell phones were introduced to the 

public, in the 1980s, they were expensive and ungainly. Kimberly L. Rhodes & Brian 

Kunis, Walking the Wire in the Wireless World: Legal and Policy Implications of 

Mobile Computing, 16 J. TECH. L. & POL’Y 25, 27. (2011). It took further decades of 

innovations, including the introduction of e-mail and other online connectivity, for 

cell phones to become the items they are now. See id. at 28-29. Today, cell phones 

are ubiquitous. Muhammad, 194 Wn.2d at 584 (Wiggins, J., lead opinion). When the 

Carpenter decision published, in 2018, there were “396 million cell phone service 

accounts in the United States—for a Nation of 326 million people.” 138 S. Ct. at 

1 I agree with the majority as to Part II of its opinion. Nevertheless, I would vacate the trial 

verdict and remand for a new trial with the CSLI suppressed for reasons discussed below. 
State v. Denham (Lynell Avery), No. 98591-0 

Whitener, J., dissenting 

4 

2211. Their modern functions pose great threats to constitutional privacy. See 

Muhammad, 194 Wn.2d at 584 (Wiggins, J., lead opinion). “Of particular concern 

is a phone’s ability to operate as a ‘24-hour’ surveillance tool, collecting and 

transmitting information about the location of the phone and its user.” Id. at 584-85.

“‘Cell phones continuously scan their environment looking for the best signal, which 

generally comes from the closest cell site. Most modern devices, such as 

smartphones, tap into the wireless network several times a minute whenever their 

signal is on, even if the owner is not using one of the phone’s features. Each time 

the phone connects to a cell site, it generates a time-stamped record known as cellsite location information (CSLI).’” Id. at 585 (quoting Carpenter, 138 S. Ct. at 

2211). 

In this case, historical CSLI, obtained via warrant, was used at trial to show 

that Denham was in the vicinity of Mallinak Designs Jewelers the night it was 

burglarized. Under the rules set forth in our precedent, the CSLI was improperly 

admitted because the application for the warrant dealt in generalities, lacking 

particularized facts. Additionally, the warrant was overbroad because it sought CSLI 

for months after the date of the crime. These errors were not harmless and demand 

vacation of the trial verdict. 
State v. Denham (Lynell Avery), No. 98591-0 

Whitener, J., dissenting 

5 

I. The trial verdict must be vacated because of the lack of nexus between the

CSLI and the crime

A. The CSLI was improperly admitted

A search warrant must be based on probable cause. Thein, 138 Wn.2d at 140. 

“An application for a warrant must state the underlying facts and circumstances on 

which it is based in order to facilitate a detached and independent evaluation of the 

evidence by the issuing magistrate.” Id. “Probable cause exists if the affidavit in 

support of the warrant sets forth facts and circumstances sufficient to establish a 

reasonable inference that the defendant is probably involved in criminal activity and 

that evidence of the crime can be found at the place to be searched.” Id. 

“Accordingly, ‘probable cause requires a nexus between criminal activity and the 

item to be seized, and also a nexus between the item to be seized and the place to be 

searched.’” Id. (quoting State v. Goble, 88 Wn. App. 503, 509, 945 P.2d 263 (1997)). 

“Although we defer to the magistrate’s determination, the trial court’s assessment of 

probable cause is a legal conclusion we review de novo.” State v. Neth, 165 Wn.2d 

177, 182, 196 P.3d 658 (2008). 

Warrant applications must contain a “sufficient basis in fact from which to 

conclude [that] evidence of illegal activity will likely be found at the place to be 

searched.” Thein, 138 Wn.2d at 147. Without a sufficient basis in fact, “a reasonable 

nexus is not established as a matter of law,” rendering the warrant invalid. Id. Thus

“probable cause [must] be based on more than conclusory predictions,” and there is 
State v. Denham (Lynell Avery), No. 98591-0 

Whitener, J., dissenting 

6 

a “required showing of reasonably specific ‘underlying circumstances’ that establish 

evidence of illegal activity will likely be found in the place to be searched in any 

particular case.” Id. at 147-48.

Nexus is absent here due to a lack of sufficient specific basis in fact necessary 

to conclude that there was a connection between the CSLI and Denham’s crime. At 

no point in the affidavit in support of the warrant, or its supplement, can be found

any factual statement linking the CSLI to the crime. Specific references to Denham’s 

cell phones and his usage of them are scant. We are told that Denham gave his phone 

number to a man to whom he was trying to sell some (allegedly stolen) jewelry—

but that says nothing about his having the phone on him at the time of the crime. 

Suppl. Clerk’s Papers (CP) at 421. We learn that in “prior arrests of Denham, he 

used two way radios to communicate with other suspects during the commission of 

his crimes,” and that “cellular phones being easier to obtain and Denham having two 

cellular phones, . . . evidence of the above listed crimes may be on his cellular 

phones.” Id. at 423-24. It goes without saying that two-way radios, harder to obtain 

or not, are not cell phones. His prior use of two-way radios better supports the 

inference that Denham would use radios instead of cell phones, not an inference that 

he used a cell phone during the crime. 

The applications also contain boilerplate language regarding cell phone

location data, which discusses at length the commonly known fact that people have 
State v. Denham (Lynell Avery), No. 98591-0 

Whitener, J., dissenting 

7 

cell phones on their persons often and that therefore the location data can be used to 

determine where a person was when a particular crime was committed. Id. at 424. 

This boilerplate language repeats, in slightly expanded form, in the addendum to the 

application for the search warrant, where it discusses how CSLI is tracked by cell 

phone towers. Id. at 439. 

Nothing in the applications for the warrant provides nexus between the 

information sought and the thing to be searched. We know only that Denham may 

have committed a crime, owns cell phones, that cell phones track location data, and 

that people often keep their cell phones nearby. “Blanket inferences of this kind 

substitute generalities for the required showing of reasonably specific ‘underlying 

circumstances’” and cannot establish probable cause in this case. Thein, 138 Wn.2d

at 147-48. 

Yet the only way to conclude from the affidavits that the CSLI was linked to 

the crime is to make use of just such “blanket inferences,” to rely on “broad 

generalizations”—that is, to revive the very arguments we rejected in Thein. Id. at 

148-49. That is precisely the path the majority takes. It asserts that “[r]eading the

affidavits as a whole, the judge could reasonably infer that evidence of the burglary 

would be found in Denham’s cell site location information.” Majority at 10. It cites 

the fact that Denham provided the phone numbers to various businesses to show he 

owned the phones. Id. at 9. It invokes “specific facts suggesting he had the phones 
State v. Denham (Lynell Avery), No. 98591-0 

Whitener, J., dissenting 

8 

days before and after the date in question.” Id. at 8-9. However, there appears to be 

only the somewhat general fact of Denham’s providing his phone numbers to his 

probation officers—without any indication of when this happened, when these 

phones were used or when he actually possessed the phones—and his giving a 

number to one of the jewelry store owners, though the affidavit is unclear about what 

number this is. Suppl. CP at 421, 423. In sum, the information the majority relies on 

establishes only that around the time of the crime, Denham had cell phones—like 

many people in the second decade of the 21st century. The majority fails to link 

them, and the CSLI, to the crime. 

The majority’s troubling reasoning is applicable to more than cell phones. 

Providing no limiting principle, the majority not only permits search of cell phone 

location data based on generalities, it opens the door to basing any search warrant 

on generalities. Indeed, the majority makes this consequence of its opinion explicit. 

The majority asserts that Thein merely held “that a search warrant cannot be based 

on generalizations about the supposed common habits of drug dealers.” Majority at 

9 n.4 (emphasis added). But Thein was not limited to generalizations about drug 

dealers; it dealt with generalizations in any circumstance. 138 Wn.2d at 148-49. It

commands that “[a]lthough common sense and experience inform the inferences 

reasonably to be drawn from the facts, broad generalizations do not alone establish 

probable cause.” Id. By holding that probable cause for a search warrant can be 
State v. Denham (Lynell Avery), No. 98591-0 

Whitener, J., dissenting 

9 

shown through such generalizations—except, apparently, in the case of drug 

dealers—the majority effectively overrules Thein. 

Thein itself was nearly identical to this case. Were the majority to follow 

Thein, it would be precluded from reaching its current outcome. In Thein, the police 

submitted affidavits to obtain a search warrant of Thein’s residence; the warrant 

issued. 138 Wn.2d at 139-40. The affidavits “contained generalized statements of 

belief regarding the common habits of drug dealers.” Id. at 138. These “generalized 

statements of belief” were, in substance and form, essentially the same as the 

generalized statements regarding criminals and their use of cell phones in this case. 

Id. They read:

“Based on my experience and training, as well as the 

corporate knowledge and experience of other fellow law 

enforcement officers, I am aware that it is generally a common 

practice for drug traffickers to store at least a portion of their 

drug inventory and drug related paraphernalia in their common 

residences. It is generally a common practice for drug traffickers 

to maintain in their residences records relating to drug trafficking 

activities, including records maintained on personal computers. 

Because drug traffickers will in many instances ‘front’ (i.e., sell on 

consignment) controlled substances in full or partial quantities to 

their distributors or from their suppliers, such record keeping is 

necessary to keep track of amounts paid and owed. These records 

will also be maintained close at hand so as to readily ascertain 

current balances. Telephone/address listings of clients must 

be maintained and immediately available in order to efficiently 

conduct their drug trafficking business. Moreover, it is generally a 

common practice for traffickers to conceal at their residences 

large sums of money, either the proceeds of drug sales or to utilized 

[sic] to purchase controlled substances. In this vein, drug traffickers 

typically make use of currency, wire transfers, cashiers checks and 

money orders to pay 
State v. Denham (Lynell Avery), No. 98591-0 

Whitener, J., dissenting 

10 

for controlled substances. Evidence of such financial transactions and 

records related to incoming expenditures of money and wealth in 

connection with drug trafficking would also typically be maintained in 

residences. 

“I know from previous training and experiences that it is 

common practice for drug traffickers to maintain firearms, other 

weapons and ammunition in their residences for the purpose of 

protecting their drug inventory and drug proceeds[.] I am aware 

from my own experience and training that it is common practice for 

[sic] from law enforcement, but more commonly, from other drug 

traffickers who may attempt to ‘rip them off.’ Firearms and 

ammunition have been recovered in the majority of residence 

searches in the drug investigations in which I have been involved.”

Id. at 138-39 (alterations in original) (quoting record). It was these generalizations, 

combined with information indicating that Thein was involved with drug dealing 

and that Thein had a residence, that the police used to apply for and obtain a search 

warrant of Thein’s residence. Id. at 139.

The information supporting the search warrant here was essentially the 

same—with cell phones replacing residences:

Through experience and training, I know that cellular service providers, 

routinely, in the regular course of business, collect and retain 

information related to their customer/subscriber accounts, for purposes 

of billing; for diagnostic and maintenance reasons; for managing traffic 

on their equipment; and for fraud detection and prevention. Telephone 

service providers also maintain records identifying related accounts or 

phone numbers, such as when an account uses multiple telephones, or 

a person uses multiple accounts. The information collected and 

maintained includes data related to subscriber information, account 

registration, credit information, billing and airtime records, outbound 

and inbound call/communication detail, location information for the 

device (derived from signals to and from the device via cellular phone 

towers and/or satellite), per call measurement data (PCMD), connection 
State v. Denham (Lynell Avery), No. 98591-0 

Whitener, J., dissenting 

11 

time and dates, Internet routing information (Internet Protocol 

numbers), and message content, that may assist in the identification of 

person/s accessing and utilizing the account; and the identification of 

other persons who are associated with the person accessing the account 

and who may be witnesses or conspirators, or that may in other ways 

be evidence of or pertain to the above-listed crime(s). Cellular 

telephone providers routinely store email and voice mail messages in 

company servers, at least until the message has been retrieved by its 

intended recipient. Some cellular telephone service providers also 

provide “cloud storage” space for customers who want to save SMS

[short message service], pictures, and the like. Cellular telephone 

service providers typically retain all records for their customer accounts 

for the life of the account, and most retain records regarding the account 

for some time after an account is closed.

I know from training and experience that people own cellular 

telephones and other portable electronic devices for the purpose of 

being able to use them wherever they are, and as such carry them 

virtually constantly, or are nearly always within the near vicinity of 

their cell phones and/or portable devices, Based on my experience, 

those involved in criminal enterprises sometimes will use multiple 

phones in the commission of crimes, to facilitate criminal activity, 

and/or to avoid detection by law enforcement. They also sometimes 

possess multiple phones to have a secondary means of communication 

if a phone is lost or seized by law enforcement. I also know through my 

training and experience that criminals also use cellular phones to 

document criminal activities through photographs, videos, and digital 

or voice memos, and that these cellular telephone users share this data 

with others by sending it via one of the many ways that cellular 

telephones can be used. For example, communication between suspects 

and other involved parties or witnesses can occur through typical 

cellular phone calls, instant messaging, text messages, chat sessions, 

email, and social networking websites. These communications can 

reveal evidence and/or facts pertaining to the above-listed crimes.

When a cellular telephone or other electronic device is turned on to 

register its availability to receive communications on the network, or 

when the device actually sends or receives communications, it will

communicate with a cell tower or satellite within its radio frequency 

range. Cellular service providers maintain data that can be used to 
State v. Denham (Lynell Avery), No. 98591-0 

Whitener, J., dissenting 

12 

generally locate a cellular telephone at a particular point in time. These 

include cell site maps, per call measurement data, and/or signal testing 

results for their networks, including round trip signal testing data, that 

show the geographical location of all cell sites within its service area. 

Using the cell site geographical information or GPS information, 

officers would be able to determine the physical location of the 

individual using a particular cellular telephone. Some cell phones or 

other electronic communication devices additionally communicate 

their physical location, in precise terms (such as longitude and latitude), 

to the provider via global positioning system (“GPS”) satellite or 

multilateration (e.g. triangulated signals off three or more towers) 

measurements that are shared with or accessible to the provider owing 

to software settings and terms of service (TOS) agreements. This 

information is often evidence of or pertaining to criminal activity in that 

it enables law enforcement to locate a suspect at the time of a crime, 

either at or away from a crime scene, and can be used to assist and 

corroborate surveillance officers’ observations and anticipate future 

movements and locations of the suspect and/or his or her criminal 

associates, by establishing his or her communication and location habit 

patterns over time. For example, if the telephone consistently signals 

the same tower both late at night and in the early morning hours, it is 

reasonable to conclude that the suspect is living, sleeping, hiding or 

working at a night job in that vicinity.

Suppl. CP at 438-39. It was these generalizations, alongside the suspicion that 

Denham burglarized the jewelry store and the fact that Denham owned cell phones, 

that supported the application for the warrant for the CSLI. In other words, the 

application for the warrant had the same form and structure as the application for the 

warrant in Thein. 

In Thein, as noted above, we held that the “generalized statements contained 

in the affidavits in this case were, standing alone, insufficient to establish probable 

cause to search Thein’s . . . residence.” 138 Wn.2d at 148. We specifically disagreed 
State v. Denham (Lynell Avery), No. 98591-0

Whitener, J., dissenting

13

with the opposite conclusion reached by the Court of Appeals, characterizing it as 

“a generalized conclusion that drug dealers are likely to keep evidence of illegal drug 

dealing in their homes.” Id. at 150. Just as in Thein, the affidavits here lack anything 

actually tying the cell phones to the crime beyond generalizations. Thus, we must 

follow the precedent set by Thein rather than discard it, as the majority does. Indeed, 

the majority does not just discard Thein: it presents essentially the same argument 

we rejected in Thein, with minor modifications: “that a nexus is established between 

the items . . . to be searched where there is sufficient evidence to believe a suspect 

is probably involved in [criminal activity] and the suspect [owns] . . . the [phone] to 

be searched.” Thein, 138 Wn.2d at 141. We rejected this decades ago, and so should 

we reject it today. 

Perhaps out of necessity—as Thein so clearly demands affirming the Court of 

Appeals—the majority relies not on Thein but on a United States Supreme Court 

case, Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), to 

reach the opposite conclusion. Gates, however, is almost entirely inapposite. In 

Gates, the police “received by mail an anonymous handwritten letter” regarding the 

purported drug dealing of Gates and his wife. Id. at 225. The letter contained highly 

specific details describing the next time the couple would obtain drugs from Florida 

and drive them back to Illinois. Id. The police pursued this lead. Id. at 225-26. 
State v. Denham (Lynell Avery), No. 98591-0 

Whitener, J., dissenting 

14 

Through various investigations and observations, the police confirmed the contents 

of the letter. Id. at 226-27. 

The Supreme Court noted that the letter alone would likely not have been 

enough to establish probable cause. Id. at 227. However, applying a totality of the 

circumstances test, the Court held that there was probable cause, between the 

anonymous letter and the affidavit describing investigations that corroborated the 

contents of the letter, to obtain the search warrant. Id. at 241-46. 

What Gates has to say about generalized statements in warrants is a mystery.

After all, Gates concerns corroborating an anonymous tip, a situation not before the 

court today. Nor does Gates have anything to say about cell phones—it cannot, given 

that Gates was decided in 1983, the same year that cell phones became publicly 

available in the United States. Rhodes & Kunis, supra, at 27. Gates, applied here,

does not help the majority reach the result it prefers. Instead, the majority’s reliance 

on Gates only furthers the evisceration of our precedent.

B. This error was not harmless

Admitting the CSLI evidence was not harmless. “[I]f trial error is of 

constitutional magnitude, prejudice is presumed and the State bears the burden of 

proving it was harmless beyond a reasonable doubt.” State v. Coristine, 177 Wn.2d 

370, 380, 300 P.3d 400 (2013). “A constitutional error is harmless if ‘it appears 

beyond a reasonable doubt that the error complained of did not contribute to the 
State v. Denham (Lynell Avery), No. 98591-0 

Whitener, J., dissenting 

15 

verdict obtained.’” State v. A.M., 194 Wn.2d 33, 41, 448 P.3d 35 (2019) (internal 

quotation marks omitted) (quoting State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 

(2002)). Thus, “‘[a]n error is not harmless beyond a reasonable doubt where there is 

a reasonable probability that the outcome of the trial would have been different had 

the error not occurred.’” Id. (quoting State v. Powell, 126 Wn.2d 244, 267, 893 P.2d 

615 (1995)). “‘A reasonable probability exists when confidence in the outcome of 

the trial is undermined.’” Id. (quoting Powell, 126 Wn.2d at 267). 

The CSLI evidence should have been suppressed because it was obtained in 

violation of the state constitution. See, e.g., State v. Schultz, 170 Wn.2d 746, 760 n.6, 

248 P.3d 484 (2011) (discussing suppression for violations of article I, section 7 of 

the state constitution). The question therefore becomes whether, absent the CSLI, is 

there a “‘reasonable probability that the outcome of the trial would have been 

different had’” that evidence not been admitted? A.M., 194 Wn.2d at 41 (quoting 

Powell, 126 Wn.2d at 267). 

The answer is yes. Without the CSLI, there is almost no evidence linking 

Denham to the scene of the crime and, thus, to the crime itself. Without it, we are 

left with the following: headlamps found at Denham’s residence that trial testimony 

indicated was “basically an exact match to the plastic cap that was found in Mr. 

Mallinak’s jewelry store,” 10 Verbatim Tr. of Proceedings (VTP) (April 3, 2018) at 

930-31; photos of items found in Denham’s residence, including wire crimpers,
State v. Denham (Lynell Avery), No. 98591-0 

Whitener, J., dissenting 

16 

cutting oil, drawings of electrical schematics and safes’ locking mechanisms, 

devices to see through drilled holes, and books about electronics, id. at 941-46; and

Denham’s prior statements, from years before, about various burglary methods 

similar to the one employed in this crime. That is not enough to conclude beyond a 

reasonable doubt that the trial outcome would have been the same. See A.M., 194 

Wn.2d at 41. 

Denham did possess stolen property from the jewelry store. But “proof of 

possession of recently stolen property, unless accompanied by other evidence of 

guilt, is not prima facie evidence of burglary.” State v. Mace, 97 Wn.2d 840, 843, 

650 P.2d 217 (1982). Such other evidence includes “flight or the presence of the 

accused near the scene of the crime.” Id. It is precisely such evidence that is absent 

without the CSLI. Nothing else connects Denham to the crime directly. No usable 

prints of his or any DNA determined to belong to him were found at the crime scene. 

10 VTP (Apr. 3, 2018) at 952-53. There was simply an array of items and facts that

loosely connect Denham to the crime—but only loosely. Indeed, the CSLI was 

crucial to the trial court’s finding Denham guilty of second degree burglary. CP at 

322-23. Without the CSLI, there is a reasonable probability that the trial outcome

would have been different. See A.M., 194 Wn.2d at 41.

But for this error, Denham’s conviction for first degree trafficking cannot be 

affirmed, either. Although much of the evidence for this charge came from 
State v. Denham (Lynell Avery), No. 98591-0 

Whitener, J., dissenting 

17 

elsewhere, crucial to the trial court’s conclusion that Denham knew the property was 

stolen was that “he was the one who stole it.” CP at 323. Without the CSLI, the 

finding that Denham was the burglar cannot stand—and neither can the conclusion 

that Denham was guilty of first degree trafficking. See A.M., 194 Wn.2d at 41. 

II. The overbreadth of the warrant also demands vacating the trial verdict

Vacating the trial verdict is also necessary because of the overbreadth of the 

warrant. Law enforcement sought CSLI for a vast amount of time: from November 

11, 2016— around when the burglary occurred—until the present date of the warrant 

application, April 20, 2017. Suppl. CP at 441-42. This warrant, which retroactively 

surveilled Denham for months after the robbery, was overbroad. See Thein, 138 

Wn.2d at 149 (“General, exploratory searches are unreasonable, unauthorized, and 

invalid.”); State v. Riley, 121 Wn.2d 22, 28, 846 P.2d 1365 (1993) (holding a warrant

that “permitted the seizure of broad categories of material and was not limited by 

reference to any specific criminal activity . . . was overbroad and invalid”). 

When the warrant was issued for this search, the fears articulated by the 

United States Supreme Court regarding historical CSLI were realized: Denham’s 

phone was transformed into a device that provided the State with his constant 

whereabouts for months at a time, without a constitutional basis to do so. See

Carpenter 138 S. Ct. at 2218 (“[W]hen the Government tracks the location of a cell 
State v. Denham (Lynell Avery), No. 98591-0 

Whitener, J., dissenting 

18 

phone it achieves near perfect surveillance, as if it had attached an ankle monitor to 

the phone’s user.”). 

The majority notes that “[t]he State properly concedes that the warrant was 

overbroad because there was no probable cause supporting the conclusion that 

evidence of a crime would be found in all of the categories of information listed.” 

Majority at 6 n.2. Such overbroad material includes the— “location data acquired 

after the charging period.” Id. Indeed, the majority even notes that any evidence 

admitted from the overbroad portions of the warrant should have been suppressed.

Id. Yet the majority treats this as irrelevant, instead, asserting that “nothing in the 

trial judge’s findings of fact suggests she relied on evidence seized under overbroad 

portions of the warrant.” Majority at 10-11. Not so. The majority fails to 

acknowledge that CSLI drawn from outside the charging period2

—obtained based 

on the overbroad portions of the warrant application—was central to the trial court’s 

conclusion that Denham committed the burglary. The trial court specifically noted 

that “[a]ccording to the records, the phone had never utilized any other towers in 

Kirkland at any time during those months” for which CSLI was obtained. CP at 322

(emphasis added); see also 8 VTP (Mar. 29, 2018) at 638 (noting that the “most 

frequently used [cell phone] tower” was “in Tacoma . . . within a mile of the Denham 

2 The charging period for burglary was November 11 through November 14, 2016; for 

trafficking, the period was November 15 through November 19, 2016. CP at 1. 
State v. Denham (Lynell Avery), No. 98591-0 

Whitener, J., dissenting 

19 

residence”). It thus cannot be said that “nothing in the trial judge’s findings of fact 

suggests she relied on evidence seized under overbroad portions of the warrant,” as 

the majority claims. Majority at 10-11 (emphasis added).

Admission of this information was not harmless, due to the trial court’s 

reliance on it to reach its verdict. See A.M., 194 Wn.2d at 41. As noted, “‘[a]n error 

is not harmless beyond a reasonable doubt where there is a reasonable probability 

that the outcome of the trial would have been different had the error not occurred.’” 

Id. (quoting Powell, 126 Wn.2d at 267). “‘A reasonable probability exists when 

confidence in the outcome of the trial is undermined.’” Id. (quoting Powell, 126 

Wn.2d at 267). Here, confidence in the outcome of the trial is undermined because 

the trial court relied on evidence obtained by the overbroad warrant to find Denham 

guilty of burglary. It follows that there is a reasonable probability that the trial 

outcome would have been different without the overbroad warrant, meaning that the

admission of evidence based on the overbroad warrant was not harmless beyond a 

reasonable doubt. See id. 

For this reason as well, we should affirm the Court of Appeals, vacating the 

trial verdict and remanding for a new trial with the direction to suppress the CSLI 

evidence obtained by the overbroad warrant.3

 

3 While the majority declines to reach this issue in part on the ground that Denham did not 

raise it, it seems strange to refrain from doing so, especially when, as the majority notes, 
State v. Denham (Lynell Avery), No. 98591-0 

Whitener, J., dissenting 

20 

CONCLUSION

The Supreme Court has made clear that it “is obligated[,] as ‘[s]ubtler and 

more far-reaching means of invading privacy have become available to the 

Government[,]’ to ensure that the ‘progress of science’ does not erode Fourth 

Amendment protections.” Carpenter, 138 S. Ct. at 2223 (quoting Olmstead v. United 

States, 277 U.S. 438, 473-74, 48 S. Ct. 564, 72 L. Ed. 944 (1928) (Brandeis, J., 

dissenting), overruled in part by Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 

19 L. Ed. 2d 576 (1967)). So, too, are we. As more and more people use increasingly 

advanced technology that tracks their every movement in an “inescapable and 

automatic” manner, we must not let our protections against governmental intrusion 

into individuals’ privacy slacken. Id. Yet the majority risks just that: merely because 

Denham had cell phones, and merely because cell phones track location information, 

the majority holds that the issuance of the warrant for the CSLI was proper. Our 

precedent does not permit warrants to issue based on such generalities. Nor does it 

permit issuance of warrants with so broad of a reach. 

We should affirm the Court of Appeals with respect to the improper admission 

of the CSLI and remand for a new trial with the CSLI evidence suppressed.

the State itself conceded that these portions of the warrant were overbroad. Majority at 4, 

6 n.2; see also Wash. Supreme Court oral argument, State v. Denham, No. 98591-0 (Jan. 

21, 2021), at 17 min., 24 sec., video recording by TVW, Washington State’s Public Affairs 

Network, www.tvw.org (State appearing to concede this point).
State v. Denham (Lynell Avery), No. 98591-0 

Whitener, J., dissenting 

21 

I respectfully dissent.