IN THE COURT OFAPPEALS OF THE STATE OFWASHINGTON

In the Matterofthe Personal Restraint 

### ) No. 75984-1-I of 

### ) DIVISION ONE SVEINARVEVIK, 

### ) ) UNPUBLISHED OPINION Petitioner. 

### )

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### ) FILED: August 5, 2019 HAZELRIGG-HERNANDEZ, J.

— In a personal restraint petition, Svein A. Vik argues that his counsel was ineffective when he failed to challenge the warrant used to seize stolen propertyfrom his home. Search warrants must describe the items to be seized with reasonable particularity. Vik argues that the victim’s assistance in executing the search warrant demonstrated that itwas insufficiently particular. Because common law tradition permits third parties to aid in the execution of a search warrant, Vik fails to demonstrate that his counsel was ineffective for not challenging thewarrant. Denied. FACTS The facts ofthis case are described in detail in Svein Vik’s direct appeal, State v. Vik, No. 74803-3-I. Here we address onlythe facts relevantto the issue argued in Vik’s personal restraint petition. Vik and several other men were contacted during a suspected burglary of Sandra Davis’s Lynnwood home. Vik voluntarily accompanied Detective Collin Ainsworth to the police station for anNo. 75984-1/2

interview. During Vik’s voluntary interview, he offered to let the detective search his house. Atthe house, DetectiveAinsworth sawa rolled up rug and tooka picture of it. Davis had reported that some rugs were stolen. After Davis confirmed that the photographed rug was hers, Detective Ainsworth applied for and received a searchwarrant. DetectiveAinsworth searched Vik’s home pursuanttothewarrant. Sandra Davis was called to Vik’s house to help identify items stolen from her property. Based in part on items recovered from his home, Vik was convicted of Second Degree Possession ofStolen Property and Residential Burglary. Vikfiled a CR 7.8 motion during the pendency ofhis direct appeal. Thetrial courttransferred that motion tothis courtfor reviewas a personal restraint petition. DISCUSSION In a personal restraint petition, the petitioner is entitled to full collateral review of a conviction or sentence ifthe petitioner shows actual prejudice from a constitutional error. In re Pers. Restraint of Light-Roth, 191 Wn.2d 328, 333, 422 P.3d 444 (2018) (quoting In re Pers. Restraint of Gronguist, 138 Wn.2d 388, 396, 978 P.2d 1083 (1999)). To prevail on an alleged constitutional violation, the petitionermustestablish bya preponderance ofthe evidencethatthe constitutional
error substantially prejudiced the petitioner. In re Pers. Restraint of Coggin, 182 Wn.2d 115, 119, 340 P.3d 810 (2014) (citing In re Pers. Restraint ofSt. Pierre, 118 Wn.2d 321, 328, 823 P.2d 492 (1992)). Vik argues that he was denied effective assistance of counsel. Both the Sixth Amendment and article I, section 22 guarantee the right to the effective assistance of counsel in criminal proceedings.

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In re Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001) (citing Strickland v. Wash., 466 U.S. 668, 684-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). I. Vikfails to establish ineffective assistance ofcounsel because he fails to demonstrate deficient performance by his attorney. Vik argues that his counsel was ineffective because he failed to challenge the search of Vik’s house authorized by the warrant. In order to reverse for ineffective assistance of counsel, we applythe two pronged Strickland test. State
v. McFarland, 127Wn.2d 322, 334-35, 889 P.2d 1251 (1995); see Strickland 466 U.S. at 687. The defendant mustshowthatthe representation was deficient, and that the deficient representation resulted in prejudice. In re Pers. Restraint of Crace, 174 Wn.2d 835, 840, 280 P.3d 1102 (2012) (quoting Strickland, 466 U.S. 668). In the ineffective assistance of counsel context, prejudice is a reasonable probability that the results of the proceeding would have been different, i.e., a probability sufficientto undermine confidence in the outcome. Crace, 174 Wn.2d at840 (quoting Strickland, 466 U.S. at694). Wherean ineffectiveassistance claim rests on the failure to competently litigate a motion to suppress evidence from an unconstitutional search, the defendant must show that the search was unconstitutional. Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986). BecauseVikcannotshowthatthewarrantwas insufficiently particularorthatthevictim’s assistance in the execution ofthewarrantviolated his constitutional rights, his argumentforsuppression, claim of ineffective assistance, and personal restraint petition all fail.

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A. Vik has notshown thatthe warrantwas not reasonably particular. The FourthAmendment requireswarrantsto particularlydescribethethings to be seized. Statev. Perrone, 119Wn.2d 538, 545, 834 P.2d 611(1992) (quoting U.S. CONST. amend. IV). The purpose of the particularity clause is to prevent general searches, prevent the mistaken seizure of objects not authorized by the warrant, and to prevent the issuance of warrants on loose, vague, or doubtful bases of fact. j.ç~ Reasonable particularity is to be evaluated in the light of practicality, necessity, and common sense. ki. at 546. The degree of particularity required will depend on the nature ofthe materials sought and the circumstances of each case. j4~ at 547. A description is valid if it is as specific as the circumstances and the nature of the activity under investigation permits. ki. Whethera search warrant is sufficiently particular is reviewed de novo. jç~ at 549. When allegations are based on matters outsidethe record, petitioners must demonstratethatthey have competent, admissible evidenceto establish thefacts that entitle them to relief. In re Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086, cert. denied, 113 S. Ct. 421 (1992). Vikdoes not supplythe courtwith the item list that was attached to and incorporated by the search warrant. He nevertheless challenges the particularity of the warrant on two bases. First, he argues that the warrant was insufficiently particular because Officer Ainsworth called the victim to help him identify which items were stolen from her home. Second, he argues that because police seized items unrelated to the Davis burglary, that the warrant must be a general, exploratory warrant. Neither claim succeeds.

4No. 75984-1/5 Descriptions in an application for search warrant that ultimately require a victim oftheftto identifythestolen items are not necessarilyinsufficientlyparticular. The only item specifically described in the search warrant, rather than the incorporated list, is a ‘primarily blue Persian style area rug with flowerish design approximately 10’ x 12’.” That description allowed the officers to reasonably distinguish the rug to be seized from most other rugs and any objects that are not rugs in Vik’s house. Ifthe officers had encountered a second large, blue Persian rug with flowerish designs and called Davis to distinguish which ofthe two rugs were hers, itwould not have negated the particularity ofthewarrant.1 Vikclaimsthat, because policeseized itemsfrom his homethatdid not have anything to do with the Davis burglary, the police must have executed an exploratory search. But the record indicates that other property recovered from his home was stolen during other burglaries. Vik has provided no information to determine whether or not additional warrants supported seizure of those items. Here, thewarrantdirected officersto seize itemsfrom an incorporated listofstolen property. Even ifthe officers recovered propertythatfell outside the scope ofthe warrant, the proper remedy would be to exclude the unconstitutionally seized property, notto declarethe entirewarrant invalid. Given these circumstances, the seizure of additional property does not support an inference thatthe warrantwas insufficiently particular.

1 In othercircumstances, such as a search warrantexecuted on a store specializing in Persian rugs, thatdescription could be insufficient.
5No. 75984-1/6

B. The presence ofa third party assisting in the execution ofa search warrant does notviolate article I, section 7. Next, Vik argues that because RCW 10.79.020 requires warrants be directed to law enforcement, we should hold that third party assistance in the execution of a valid warrant violates state law and article I, section 7. Extensive
common lawtradition and the explicitapproval ofthe United States Supreme Court permits third parties, including victims of theft, to assist the police in identifying stolen property underthe Fourth Amendment. Wilson v. Layne, 526 U.S. 603, 611- 12, 119 S. Ct. 1692, 143 L. Ed. 2d 818 (1999). Vik argues that article I, section 7 should provide additional protection from a third party assisting a warrantauthorized search. In State v. Gunwall, ourSupreme Court recognized thatarticle I, section 7 ofthe Washington State Constitution provides greater protection from government intrusion than the FourthAmendmenttothe United States Constitution in some circumstances. 106 Wn.2d 54, 63-64, 720 P.2d 808 (1986). While Gunwall originally set out six criteria necessary to argue for a separate interpretation on independent state constitutional grounds, that analysis is no longer necessarytojustify an independent state law analysis ofarticle I, section 7 in newcontexts. Statev. Mayfield, 192Wn.2d 871, 878, 434 P.3d 58(2019). Vik’s article I, section 7 argument is grounded in his statutory interpretation of RCW 10.79.020. We interpret statutes de novo, striving to ascertain and carry out the legislature’s intent. State v. Yancey, 193 Wn.2d 26, 30, 434 P.3d 518 (2019). We startwith the statute’s plain meaning, using the ordinary meaning ofthe language,

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the context in which the statutory provision is found, related provisions, and the statutoryscheme as awhole. We startwith the statute’s plain meaning, using the ordinary meaning ofthe language, the context in which the statutory provision is found, related provisions, and the statutoryscheme as awhole. k~. at30. We must not add words where the legislature has chosen notto include them. Id. Here, the plain language of RCW 10.79.020 only requires thatwarrants be directed to law enforcement. It contains no references to third parties. While the statute makes it clearthat a warrant can only be issued to law enforcement, the statute does not baranythird partyfrom assisting in the execution ofthatwarrant, whetherthe party is emergency personnel, a locksmith, or a victim oftheft, as is the case here. Interpreting the statute to bar that participation would require adding words to the statute. The language ofarticle I, section 7, gives us no other reasonto deviatefrom the common law in this case. Article I, section 7 requires authorityof law before a person’s private affairs maybe disturbed. Statev. Miles, 160Wn.2d 236, 243, 156 P.3d 864 (2007). That authorityof law is generallysatisfied by a valid warrant. ki. at 244. Where, as here, a valid warrant authorizes the search, a third party assisting in the execution ofthe warrant does not offend the protections of article I, section 7. BecauseVik is unableto establish thatthe search warrantwas insufficiently particular, he is accordingly unable to demonstrate that counsel’s failure to challenge the search warrant on that basis supports a finding of deficiency. As

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such, Vik does not satisfy the first prong of the Strickland test and his claim of ineffective assistance ofcounsel fails. Denied.

WE CONCUR:

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