SUPREME COURT NO. 92547-0 IN THE SUPREME COURT OF THE STATE OF WASHINGTON IN RE THE PERSONAL RESTRAINT PETITION OF: ANTHONY DEWAYNE PARKER, PETITIONER. MOTION FOR DISCRETIONARY REVIEW Anthdny D. Parker Pro Se #776122-J-B-12 Clallam Bay Carr. Cntr. 1830 Eagle Crest Way Clallam Bay, WA 98326 A. IDENTITY OF PETITIONER. i Anthony D. Parker, asks this court to accept review of the decision or parts of the decision designated in Part B of this motion. B. COURT OF APPEALS DECISION. The Court of Appeals Decision entered on October 19, 2015, is in direct conflict of other lower court's opinion's as well as this court's opinion's, as held in State v. Irby; State v. Flores; State v. Green; and State v. Ponce. See COA. Decision properly attached to this motion as App. A. C. ISSUES PRESENTED FOR REVIEW. 1). Was Parker deprived of effective assistance of counsel where counsel failed to suppress the seizure of Johanna Holliday's cell phone during the traffic stop when she . was not arrested for any crime? 2), Did the State prove every element of the crime of First Degree Burglary where Parker's friend, Jennifer Prerost had let him into the house? 3). Did the State prove every element of the crime of First Degree Kidnapping where Johanna Holliday left the house willingly and was not secreted in a place where she could not be found? 4). Did the State prove every element of the crime of 1 . MOTION FOR DISCRETIONARY REVIEW Unlawful Possession of a Firearm in the First Degree where Dominion and Control over premises and not specific item is insufficient to prove possession? D. STATEMENT OF THE CASE. 1. Facts Pertaining to Issues Raised on Appeal According to the Compliant for Search Warrant and Affidavit attached to this Motion as App. B, dated April 8, 2013. On April 4, 2013, at approximately 1900 hours, Officer Rauback observed Johanna Holliday and Alisia Crettol meeting with Travier Stevenson, who uses and sell Percocet pills. Officer Rauback followed Cre t tol and Holliday away from the area, and coordinated with patrol officeis to stop the vehicle. Detective Ryan Heffernan responded to the location of the stop and stood by while Holliday and Crettol were removed from the car and detained. Heffernan escorted 'holliday to a patrol vehicle and explained that he was investigating a possible drug transaction that had just Id. at 6. occurred~ Heffernan asked Holliday how many pills she had gotten from Stevenson. Holliday said she had gotten one pill from Heffernan asked Holliday where she had put Stevenson~ the pill. Holliday responded "inside of her purse", which was sitting in the passenger seat of the vehicle. Without 2 . MOTION FOR DISCRETIONARY REVIEW obtaining a "warrant to search the vehicle and remove the items" Heffernan went to the vehicle and withdrew the purse and a cell phone from the front seat of the car. Heffernan returned with the i terns to Holliday and took off her hand restraints. Holliday located the pill inside of her purse and handed it over to the Detective. Heffernan showed Holliday the cell phone located on the passenger seat, which she verified was her phone, and identified the number as (360) 908-2471. Heffernan called the number, confirming the same, and took custody of the phone. According to De tee tive Heffernan, because Hol.liday was cooperative throughout the interview and agreed to meet with him the following day, Holliday was not arrested for possess ion of a· con trolled subtance. i, e ( Percoce t) . 6RP 532, 534 .• RP App. D. In fact, Heffernan had no intentions ·on arresting Holliday for the purchase of the drugs. RP 812-14, 890, 1012. Heffernan testified that he was looking for information on Parker and used the traffic stop as a ruse to gain that information. Heffernan stated, he thought he would go through the phone with Holliday's consent once she showed up to the meeting they had agreed to. RP 812-14, 890, 1012. 3. MOTION FOR DISCRETIONARY REVIEW On April 5, 2013, when Holliday failed to show up for the interview, detective Heffernan sought a search warrant to go into Holliday's cell phone that he had seized during the traffic stop. See Complaint No. 20130160 Id. at 7 App. B. Even though Holliday was ndt stopped for prostitution or had admitted that she was prostituting, the affidavit to search and seize any information on the phone was based on insufficient probable cause that human trafficking and prostitution would be found in the cell phone. Subsequent to the illegal seizure of the cell phone, Detective Heffernan was able to go into the phone where he found evidence of Holliday prostituting through backpage.com, and information on Parker allegedly acting as her pimp through the text messages and e-mails that he sent to her. In order to locate Holliday, Detective Heffernan and the Bremerton Police Department orchestrated a sting operation posing as customers on backpage.com. When Holliday answered the ad she was arrested at the Oyster Bay Motel for prostitution. RP 538-540, 541-543, 814-818, 891. During the arrest Heffernan seized Holliday's second cell phone, where he obtained a warrant to search and found more evidence of prostitution with Parker acting as her 4 . MOTION FOR DISCRETIONARY REVIEW pimp through e-mails and teXt messages~ After Holliday's arrest at the Oyster Bay Motel, she ;t.trefl. ',gave a recorded s ta temen t, alleging that on one occasion through the months of January thru February 2013, Parker had committed Burglary in the First Degree, Assault in the Second Degree, and Kidnapping in the First Degree. RP Holliday also alleged that Parker was in possession of a firearm in the month of April 2013. It was because of this statement to the police that Detective Heffernan sought another search warrant to arrest Parker for Human Trafficking and Promoting Prostitution. See App. C. The warrant specifically stated that the body of Parker was to be arrested at the location established and to recover a firearm. Parker was arrested and the gun was located however, the police went beyond the scope of the warrant and seized Parker's cell phone, where they uncovered e-mails and text messages to and from Holliday in relation to prostitution. RP 993 . During pre-trial 3.5 and 3.6 hearings, when the State sought to admit the evidence taken from Holliday's first cell phone that was seized during the traffic stop, defense counsel should have moved to suppress that evidence because the officer had no authority to seize the phone. 5 . MOTION FOR DISCRETIONARY REVIEW 2. Appellate Court Decision Parker on appeal argued that he had a reasonable expectation of privacy when the State seized evidence of the e-mails, text messages, and photos, fro!ll Holliday's cell phone that was either sent by him to Holliday or sent by Holliday to him. Statement of Additional Grounds at 19-26; and Personal Restraint Petition at 12-16. Parker aslo argued that counsel deprived him of his right to a fair trial when counsel failed to suppress the seizure of the cell phone taken on April 4, 2013, during the traffic stop, and the evidence taken from that phone as well as Holliday Is second cell phone taken on the 12th day of April 2013, during Holliday's arrest, where she gave no consent to seize nor search her phone. Statement of Additional Grounds at 26-29; and Personal restraint Petition at 16-19. SAG App. E. PRP App. F. In addition to the illegal search and seizure, Parker further argued that the State failed to prove· that he committed first degree burglary. SAG at 7-8; Kidnapping in the first degree. SAG at 9-11; and Unlawful Possession of a Firearm in the first degree. SAG at 12-15. The court granted Parker's petition on the illegal search and seizure and ordered a reference hearing. Appendix 6 • MOTION FOR DISCRETIONARY REVIEW A. The court. of appeals ordered appointment of counsel to represent Parker at the hearing on Parke~'s claim that J.H.'s cell phones were illegally searched and seized. Id. at 2 7 The reference hearing is to include 1) a 0 specification of all evidence on J.H. 's cell phones to which Parker's asserted privacy interest extended; 2) whether such evidence was admit ted at trial; and 3) if not admit ted, whether such evidence led to other evidence that was admitted at trial; 4) a specification of what evidence admitted at trial, independent of that listed in paragraphs 1 to 3, supported Parker's convictions. Id. at 28. The court concluded that "because of Parker's threats sufficient evidence proves that Parker unlawfully entered or remained in the house; and because Pakrker pushed J. H. towards the door, pushed her in to the back seat of his car, and sped off, the ·jury· could have found that ·J.H. did not willingly leave with Parker. Rather, she did so because of the use of force or threatened force. Id. at 13-14; and because the police found the firearm in the house where Parker lived the State presented sufficient evidence for the jury to find beyond a reasonable doubt that Parker constructively possessed the firearm. Id. at 15. In the matter of ineffective assistance of counsel, 7 0 MOTION FOR DISCRETIONARY REVIEW for failure to move to suppress the evidence taken from J.H. 's cell phones, the court concluded that because Hinton, 169 Wn.App. 28, (2012) was still good law Parker lacked standing to challenge the search, thus, counsel's dec is ion not to move to suppress this evidence was objectively reasonable." Id. at 18. E. REASONS WHY REVIEW SHOULD BE ACCEPTED AND ARGUMENT. BECAUSE THIS CASE INVOLVES SIGNIFICANT QUESTIONS OF LAW UNDER THE STATE AND FEDERAL CONSTITUTIONS, THIS COURT SHOULD ACCEPT REVIEW. 1. Ineffective Assistance Of Counsel Deprived Parker Of · The Right To A Fair Trial Where Counsel Failed To Suppress the Illegal Seizure Of Johanna Holliday's Cell Phone That Was Taken During The Traffic Stop And The Admitted Evidence Retrieved From That Cell Phone! Both the Sixth Amendment to the United States Constitution and article 1 section 22 (amend 10) of the Washington State Cons ti tu tion guarantee the right to effective assistance of counsel in criminal proceedings. State v. Snapp, 174 Wn.2d 177, 275 P.3d 289 (2012). A claim of ineffective assistance of counsel presents a mixed question of fact and law reviewed de novo." State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). To establish ineffective assistance of counsel, the defendant .. 8 . MOTION FOR DISCRETIONARY REVIEW must establish that his attorney's performance was deficient and the deficiency prejudiced the defendant. Strickland v. Washington, 466.U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Hendrickson, 129 wn.·2d 61, 77-78, 917 P.2d 563 (1996). Deficient performance is performance falling ''belo~ an objective standard of reasonableness based on consideration of all circumstances." State v. Mcfarland, 127 Wn.2d 322, 334-335, 899 P.2d 1251 (1995). The prejudice prong requires the defendant must show that counsel's errors were so serious as to deprive the defendant of a fair trial whose resultis relaible. Strickland, 466 U.S. at 687. In this case, the Court of Appeals reasoned that because Parker had no standing to challenge the contents of the cell phone taken during the traffic stop Parker did not suffer ineffective assistance of counsel. See App.· A. at 18. This reasoning was based on the fact that Hinton, 169 Wn.App. 28 (2012) was still good law at the time of Parker's trial. However, prior to the search of the cell phone, the court needed to consider the way that Holliday's cell phone was seized during the traffic stop, before it can make the determination of whether Parker did not suffer ineffective assistance of counsel. See State v. Green, 177 Wn.App. 332, 9. MOTION FOR DISCRETIONARY REVIEW