# FITTE^ CLERKS OFFICE

CFWASI^iSTQN R I 8r20 DA This opinion was Jiled for record at2>Wn

susan L.Carlson Supreme Court Clerk

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHTNGTON, Petitioner,

V. MARC DANIEL McKEE, Respondent. NO. 96035-6
EN BANC Filed APR 1 8 2019

STEPHENS, J.—^A jury convicted Marc Daniel McKee of four counts of possessing depictions of minors engaged in sexually explicit conduct (Possessing Depictions). The Court ofAppeals reversed those convictions on the ground that police had used an overbroad search warrant to obtain the underlying cell phone photos and videos. Instead of just remanding for suppression of the cell phone evidence, the Court of Appeals ordered all the Possessing Depictions counts dismissed,meaning retrial was barred. Although the Court ofAppeals provided no reasoning to justify thatremedy,it appears to have thought dismissal was warrantedState V. McKee (MarcDaniel),96035-6



### because once the cell phone evidence was suppressed, there would be insufficient evidence to sustain the convictions at a second trial. The State petitioned for review ofthe Court ofAppeals' decision to dismiss rather than to suppress. We granted the State's petition for review and now reverse. State V. McKee, 191 Wn.2d 1012, 426 P.3d 749 (2018). The proper remedy following suppression ofthe cellphone evidence wasto vacate McKee's convictions for Possessing Depictions and to remand to the trial court for further proceedings. FACTS McKee metA.Z.when he was 41 years old and she was 16 years old. Atthat time, A.Z. had been using marijuana since she was 12 years old and methamphetamine and heroin for aboutone year. Over the course ofseveral months in 2012,McKee had repeated sexual encounters with A.Z.and also supplied her and another minor with heroin and methamphetamine. In October 2012,A.Z.'s brother took McKee's cell phone and discovered it had sexually explicitpictures and videos ofA.Z. A.Z.'s brother showed these images to A.Z.'s mother,who then turned the phone over to police. Based on their conversations with A.Z.'s mother, officers sought and obtained a warrant to search the cell phone for "[ijmages, video, documents, text messages, contacts, audio recordings, call logs, calendars, notes, tasks,data/internet usage,any and all identifying data,and any other electronic data

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. . . showing evidence of the above listed crimes [sexual exploitation of a minor (RCW 9.68A.040)and dealing in depictions ofa minor engaged in sexually explicit conduct(RCW 9.68A.050)]." CP at 229,225. The State charged McKee with five separate offenses, nine counts in all: possessing depictions in the first degree (counts 1-3), possessing depictions in the second degree (count 4), commercial sex abuse of a minor (count 5), delivery of methamphetamine and/orherointo aperson under age 18(counts 6-8),and violation ofa no contact order (count 9). Prior to trial, McKee moved to suppress the evidence recovered from the cell phone on the grounds that the warrant was overbroad and not based on probable cause. The trial courtdenied the motion. Attrial,theprosecution introduced several images from the cell phone through A.Z.'s testimony. She identified herselfin the images. A.Z.'s mother and brother also provided detailed testimony describing the pictures and videos they viewed on the phone and identifying A.Z. as depicted therein. A jury convicted McKee of every charge except one count of delivery of a controlled substance to a minor. The trial court sentenced him to 113 months' total confinement. McKee appealed to Division One ofthe Court ofAppeals,raising two issues: (1)that the trial court erred by refusing to suppress the cell phone evidence

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### and (2)thattrial counsel was ineffective athis sentencing hearing for failing to argue that all the Possessing Depictions counts constituted the same criminal conduct. McKee's briefing on the search warrant issue mentioned a remedythree times in inconsistent terms. In his opening brief, McKee asserted that "all fruits from the search of McKee's phone—^which formed the basis for the charges in counts 1 through A—should have been suppressed . . .[and his] convictions on these counts should be reversed and dismissed^ Br. of Appellant at 16 (Wash. Ct. App. No. 73947-6-1(2016))(emphasis added). Butthen in the conclusion ofthatbrief,McKee requested onlythat the appellate courtvacate the convictions:"McKee's convictions on counts 1 through 4 should be vacated based on the faulty warrant." Br. of Appellantat 24. Consistentwith the latterlanguage,the State'sresponse in the Court ofAppeals characterized McKee's briefing as requesting vacation and suppression: "McKee contends that . . . the cell phone content seized pursuant to the warrant should havebeen suppressed,and thatthe convictions,therefore,should bevacated." 

### Resp't's Br. at 3 (Wash. Ct. App. No 73947-6-1 (2017)). McKee's reply brief repeated only that request: "For the reasons discussed in the opening briefand here, this Court should vacate McKee's convictions on counts 1 through 4 based on the faulty warrant." Reply Br.ofAppellant at 9(Wash.Ct.App.No.73947-6-1 (2017)) (emphasis added).

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### Even though McKee had not briefed the issue,at oral argument the Court of Appeals asked defense counsel whether, if the evidence stemming from the cell phone warrant were suppressed, sufficient evidence would remain to sustain the challenged convictions. The following one-minute exchange took place:

COURT: Was the only evidence that was introduced at trial for the four counts that you're seeking [to have reversed] based on what the police were able to obtain from the search warrant? DEFENSE COUNSEL:That was the primary evidence,yes. COURT:So,there was other evidence? DEFENSE COUNSEL: Well, other evidence. Um, A.Z. had no memory ofthese pictures or ofthe,the actual clips. Butwhen she saw them, she was able to identify herselfin them. That's some evidence. But she had no recollection of them until she was shown them. So I'd say no, that evidence came from what was,um found in the search warrant. Her mother looked at the phone briefly and saw a few things,so perhaps she would have been able to give a vague description that she saw a clip, some photos that showed her daughter and somebody else, but, you know,this, these actual photos and clips were the primary evidence,the bulk ofthe evidence. COURT: So, if we excluded that evidence, is there sufficient evidence? DEFENSE COUNSEL: There's not, there would not be sufficient evidence for the State to prove these convictions. Wash. Court of Appeals oral argument. State v. McKee,No. 73947-6-1 (Sept. 14, 2017), at 7 min., 55 sec. through 8 min., 57 sec. (on file with court). During the State's argument, the court did not inquire about the remedy of dismissal or the sufficiency ofany evidence,and the State did not address either issue. Ultimately, the Court of Appeals agreed with McKee's Fourth Amendment argument and reversed all four ofhis convictions for Possessing Depictions. State

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V. McKee, 3 Wn. App. 2d 11, 30, 413 P.3d 1049 (2018); U.S. Const.amend.IV. Instead of simply applying the exclusionary rule—^that is, vacating the convictions and remanding to the trial court for further proceedings—^the Court of Appeals ordered dismissal ofall the Possessing Depictions counts. McKee,3 Wn.App. 2d at 30. Itprovided no reasoning explaining thatoutcome,butthe remedy ofdismissal 

### typically applies only when a conviction is reversed for insufficient evidence^ or the government's misconduct has prejudiced the defendant and materially affected the 

### possibility of a fair trial.^ While it is not entirely clear, it appears from the oral argument transcript that the Court of Appeals believed dismissal was required because once the cell

phone evidence wassuppressed,the remaining evidence would 

### be insufficientto sustain the convictions on the possessing depictions counts. The State filed a motion for reconsideration ofthe dismissal remedy and,for 

### the first time, detailed eyewitness testimony describing the explicit images ofA.Z. on McKee's phone. It argued that dismissal was inappropriate because that testimony—i.e., the evidence that was not tainted by the invalid search warrant— would be sufficient to sustain the Possessing Depictions convictions on retrial. Resp't's Mot.to Recons.,State v. McKee,No.73497-6-1,at 9(Wash.Ct.App.Apr. 

### ^ State V. Wright, 165 Wn.2d 783,788,203P.3d 1027(2009)(where appellate court vacates a conviction for trial error rather than insufficient evidence,retrial is not barred). 

### 2State V. Marks, 114 Wn.2d 724,730-31,790 P.3d 138 (1990).
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### 13, 2018) ("Dismissal of the four possession of depiction counts was not the 

### appropriate remedy given other evidence about the content of the videos and photograph that was presented at trial and could be presented at a retrial."). In his answer,McKee argued both that the State had waived the dismissal issue by failing to raise it earlier and that the State's "sufficiency" argument failed on its merits. Like the State, McKee argued that dismissal was warranted if the evidence that remainedpostsuppression would be insufficientto sustain the Possessing Depictions convictions. Unlike the State, he contended that the eyewitness testimony was insufficient. The Court ofAppeals denied the motion for reconsideration,and we granted the State's petition for review. ANALYSIS The question before us is whether the Court of Appeals erred when it dismissed the Possessing Depictions counts after suppressing the cell phone evidence,thus barring any possibility ofa retrial. We hold that this was error. The typical remedy for a Fourth Amendment violation is suppression,not dismissal. This is true even when suppression would seem to exclude the bulk of the prosecution's evidence. Under long-standing precedent,the double jeopardy clause bars retrial only when all the evidence admitted at trial—including erroneously

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admitted evidence—is insufficientto sustain the conviction at issue. State v. Jasper, 174 Wn.2d 96, 120, 271 P.3d 876 (2012)(citing Lockhart v. Nelson, 488 U.S. 33, 40, 109 S.Ct. 285, 102L.Ed.2d 265 (1988)). The logic underlying this rule is that areversal for insufficiency is tantamount to an acquittal,but a reversal for any other trial court error is not. Lockhart, 488 U.S. at 40-42. A reversal for insufficiency indicates the governmenthad its chance and failed to prove its case,while a reversal for another trial error indicates only that the defendant was convicted through a flawed process. Id. at 40-42. In the latter instance, the appellate court must "recreate[]the situation thatwould have been obtained ifthe trial courthad excluded the [improper]evidence," leaving the State free to presentnew evidence at retrial,if it chooses. Id. at 42. This rule applies whenever the erroneous admission of evidence requires reversal, including when error stems from an illegal search or seizure. E.g.,State v.Jefferson,291Kan.1151,1166,310P.3d331 (2013) (applying Lockhartanalysis after reversing appellant's conviction and ordering suppression of evidence obtained through illegal seizure). Thus,in a case like this one,an appellate court does not evaluate the sufficiency of the untainted evidence remaining after

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suppression. Provided the total evidence (tainted and untainted) was sufficient to 

### sustain the verdict,the remedy is limited to reversal and suppression.^ McKee urges us to affirm the Court of Appeals regardless of whether dismissal was the appropriate remedy, arguing that the State waived any remedy argument by failing to raise it before the motion for reconsideration. We decline that invitation for two reasons. First,the facts here do not indicate any concession or waiver by the State. McKee's briefing did not raise any issue ofsufficiency (of any quantum of evidence)and, when the court raised that issue sua sponte at oral argument, it directed its questions only at McKee. Second, the Court of Appeals committed obvious legalerror when itordered dismissal,distinguishing the situation from one involving a factual concession. Even if the State had conceded that dismissal was required, which it did not, the appellate court should have rejected such a concession. See In re Pers. Restraint of Pullman, 167 Wn.2d 205, 212 n.4, 218 P.3d 913 (2009) (rejecting State's concession both because it involved a question oflaw and because it was "equivocal at best"). Any arguments about the insufficiency ofevidence prior to retrial mustbe directed to the trial court in the first
^ We are not concerned in this case with any issue ofharmless error, as the State made no argument that the admission ofthe cell phone evidence was harmless beyond a reasonable doubt. Cf. State v. GonzalesFlares, 164 Wn.2d 1, 18-19, 186P.Sd 1038 (2008) (error may be harmless beyond a reasonable doubt in light of overwhelming untainted evidence).
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instance. See State v. Knapstad, 107 Wn.2d 346, 356-57, 729 P.2d 48 (1986) (describing procedure by which defendant may obtain pretrial hearing on the sufficiency ofthe State's factual allegations to establish a prima facie case ofguilt). CONCLUSION When an appellate court vacates a conviction that is obtained with illegally seized evidence,the remedy is remand to the trial court with an order to suppress. This is true regardless of whether the untainted evidence might independently sustain a conviction. We reverse the Court ofAppeals and remand to the trial court for further proceedings consistent with the order to suppress evidence seized as a 

### result ofthe faulty warrant.'^

McKee requests appellate consideration ofhis same criminal conduct claim raised initially in the Court ofAppeals. We decline to address this claim because it is both moot (the affected counts have been reversed)and premature (we do notknow whether the State will seek another trial). Additionally,this issue is not properly before us because McKee did not raise it in his answer to the State's petition. RAP 13.7(b)(on review ofCourt of Appeals decision, Supreme Court will review only the questions raised in the petition and answer).
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WE CONCUR:



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