State v. Bilgi

496 P.3d 1230

STATE of Washington, Respondent,

v.Mehmet BILGI, Appellant.

No. 53464-9-II

Court of Appeals of Washington, Division 2.

Filed October 19, 2021

Lenell Rae Nussbaum, Law Office of Lenell Nussbaum, PLLC, 2125 Western Ave. Ste. 330, Seattle, WA, 98121-3573, for Appellant.

Britta Ann Halverson, Pierce County Prosecuting Attorney, 930 Tacoma Ave. S Rm. 946, Tacoma, WA, 98402-2171, for Respondent.

PUBLISHED IN PART OPINION

Cruser, J.

¶ 1 Mehmet Bilgi was convicted of attempted rape of a child in the second degree and communication with a minor for immoral purposes. Bilgi appeals his convictions, arguing that (1) the trial court erred when it denied his motion to suppress text messages and e-mails obtained while law enforcement was violating Washington's privacy act, chapter 9.73 RCW, (2) the trial court erred when it denied his motions to compel discovery related to the technology used by law enforcement, and (3) the prosecuting attorney committed misconduct in closing argument.

¶ 2 In the published portion of this opinion, we hold that (1) the trial court did not err when it denied Bilgi's motion to suppress because law enforcement did not intercept Bilgi's text messages or e-mails in violation of the privacy act. In the unpublished portion of this opinion, we hold that (2) the trial court did not abuse its discretion when it denied Bilgi's motions to compel discovery and that (3) the prosecuting attorney did not commit reversible misconduct. Therefore, we affirm Bilgi's convictions.

FACTS

I. FACTS UNDERLYING THE CHARGES

¶ 3 Detective Kristl Pohl, working with Washington State Patrol's (WSP) Missing and Exploited Children's Task Force (MECTF), posted an advertisement on Doublelist, a website similar to Craigslist where people advertise for sexual encounters, as part of MECTF's thirteenth "Net Nanny" operation.¹ 9 Verbatim Report of Proceedings (VRP) at 905. The advertisement asked, "where is the hook up spots in Puyallup that a yung [sic] hot guy could go?" Clerk's Papers (CP) at 156. It included a picture of a young adult male with a Snapchat filter that made his face resemble a "koala bear." 11 VRP at 1190. When Pohl answered messages directed to this advertisement, she assumed the persona of a 13-year-old boy named "Jake." 9 VRP at 934.²

¶ 4 Bilgi responded to Pohl's advertisement with an e-mail message that said, "hey did you find your guy or spot yet ? hit me up and we can have some fun together." Ex. 2 at 1. He attached a picture of an erect penis. Bilgi soon mentioned the possibility of meeting people at "neighborhood dive bars," to which Jake responded that he was not old enough to go to bars. Id. When Bilgi asked how old Jake was, Pohl said, "13." Id. at 3. After initially expressing surprise, Bilgi responded, "so what do you wanna [sic] do?" Id.³

¶ 5 After about a week of sending e-mail messages, Bilgi and Pohl switched to communicating through text messages. Bilgi texted using Google Voice, "a voiceover internet number" that was not connected to his cellular phone. 9 VRP at 931. He told Jake that he was 27 years old.⁴ Bilgi and Jake communicated periodically over the next month, with most of their conversations involving sexual content. Eventually, Bilgi arranged to meet Jake at a park.

¶ 6 Prior to arriving at the park, Bilgi texted a picture of his face and a description of his car. When Bilgi arrived, Pohl texted, "can you roll down ur [sic] windows and wave?" CP at 318. Officers arrested Bilgi after they saw him roll down his window and wave. Officers later recovered condoms and personal lubricant from Bilgi's car.

¶ 7 The State charged Bilgi with attempted rape of a child in the second degree and communication with a minor for immoral purposes.

II. PROCEDURAL HISTORY

MOTIONS TO SUPPRESS COMMUNICATIONS

¶ 8 During an interview with defense counsel, Detective Pohl disclosed that she used a software named Callyo to send text messages to Bilgi from her computer. Pohl explained that Callyo allows MECTF to sort messages by the phone number they are using and by the suspects’ phone numbers. It also allows the detectives to download all of the messages associated with a particular suspect's phone number in a zip file and to open those messages in a spreadsheet.

¶ 9 After this interview, Bilgi moved to suppress "all evidence relating to the e[-]mail and text communications of the defendant, including oral testimony about them," under the privacy act. Id. at 488. Bilgi argued that his text messages were unlawfully "intercepted and recorded by law enforcement using specialized computer surveillance software called ‘Callyo.’ " Id. at 490. The State responded, "The messages were not intercepted at all. They were sent by the defendant to a boy he knew as ‘Jake’ at a specific phone number. They were received by ‘Jake’ at that same number. They were opened and read by ‘Jake.’ " Supp. CP at 1240.

¶ 10 At the CrR 3.6 hearing, Detective Sergeant Rodriguez testified that he controls the Callyo account for the Net Nanny operations. He explained that Callyo, like Google Hangouts, generates phone numbers for the officers to use to communicate with suspects, but Callyo is a preferable program because to document communications with Google Hangouts, the officers "would have to take screen shots ... as [they] scrolled through [their] computer screen ... and it was very tedious." 4 VRP (May 21, 2019) at 233. With Callyo, they can download the entire conversation by clicking a button.

¶ 11 When he first set up the Callyo account, Rodriguez assigned separate usernames to individuals working on the operation, but now he uses one login and password for the entire operation because multiple logins "just isn't efficient." Id. at 270. Now, if one of the other officers asks Rodriguez to review their chats, he "can either just move over to their seat and look, or [he] can do it right from [his] computer." Id. at 255. The shared login also makes it easier for the officers to take over for one another. Multiple people can be logged in under the same username at the same time, and anybody who logs in has the ability to access and participate in any of the chats. Rodriguez testified that members of MECTF have "the explicit authority" to read messages sent through Callyo. Id. at 268.

¶ 12 Pohl similarly testified that although she was the only person who messaged Bilgi, "anybody that has the log in and the password to the account could view it." Id. at 313. She testified that she sent all of her text messages to Bilgi through the Callyo program, and that even if it was not specifically discussed, other members of the operation had her permission to access those messages.

¶ 13 On the day of Bilgi's arrest, Detective John Garden was performing surveillance. Garden testified that he was logged in to Callyo on his iPad, observing the communications between Pohl and Bilgi as they were occurring. Detective Kathryn Chovil-Peterson, who also performed surveillance for Bilgi's arrest, testified that she was "capable of" accessing the chats while she was waiting for Bilgi to arrive at the arrest location, but she "[did not] recall ... in Mr. Bilgi's case if [she] was monitoring the conversations or not." Id. at 301-02. Pohl was also logged in to Callyo at headquarters, and "[s]omebody in the room would have been acting as the incident commander and would have been the one responsible for passing that information onto the surveillance units." Id. at 319.

¶ 14 Bilgi contended that Garden's admitted viewing of the messages while he was performing surveillance constituted a privacy act violation because Garden was not a party to the conversation and he did not have court authorization to view the messages in real time. Bilgi argued, "It is not reasonable for a sender of a communication to expect that that private communication will go to a surveillance software ... where it will be stored and then transmitted to multiple people ... in different locations, and who are not participating in the conversation in any way." Id. at 256-57. The State responded that "once law enforcement lawfully possesses the information, that's the end of the inquiry. ... It's delivered to one account, which is accessible by law enforcement as a whole because Carlos Rodriguez gave them the authority to do it." Id. at 367-68.

¶ 15 At the conclusion of the hearing, the trial court found that the communications between Bilgi and Pohl were private and that they were recorded on Pohl's computer, which is an electronic device. It also found that Bilgi impliedly consented to the recording of his communications on Pohl's device.

¶ 16 The trial court noted that MECTF used a software that "allowed officers to communicate with multiple subjects at the same time, using the same undercover telephone number for outgoing messages, and then generate a report containing all the messages from a single incoming number," but it found that Bilgi's "consent is not based in any way on the nature of the software used by the recipient." CP at 1202. It further found that both Rodriguez and Pohl consented to other members of the Net Nanny operation reading their text messages.

¶ 17 The trial court rejected Bilgi's argument that his "consent was limited to the intended recipient, ‘Jake’ (Det. Pohl), such that any other officer who read his messages ‘intercepted’ them." Id. at 1203. "It is well-settled in this state that the sender of a text message runs the risk the recipient will share the content of that message with one or multiple other persons." Id. Therefore, "Det. Pohl did not violate the Privacy Act by allowing other members of MECTF to read her communications with [Bilgi]." Id. at 1204. The trial court denied Bilgi's motion to suppress his communications.

¶ 18 At trial, the State admitted Bilgi's text messages to Jake. The jury found him guilty as charged. Bilgi appeals his convictions.

ANALYSIS

WASHINGTON'S PRIVACY ACT

¶ 19 Bilgi argues the trial court erred when it denied his motion to suppress...