State v. Canter

17 Wash.App.2d 728

487 P.3d 916

STATE of Washington, Respondent,

v.CANTER, Stephen Wayne, DOB: 01/10/1971, Appellant.

No. 80409-0-I

Court of Appeals of Washington, Division 1.

FILED June 1, 2021

Washington Appellate Project, 1511 Third Avenue, Suite 610, Seattle, WA, 98101, Maureen Marie Cyr, Washington Appellate Project, 1511 3rd Ave., Ste. 610, Seattle, WA, 98101-3647, for Appellant(s).

Prosecuting Attorney Snohomish, Snohomish County Prosecuting Attorney, 3000 Rockefeller Ave. M/s 504, Everett, WA, 98201, Seth Aaron Fine, Snohomish Co. Pros Ofc., 3000 Rockefeller Ave., Everett, WA, 98201-4060, for Respondent(s).

PUBLISHED IN PART OPINION

Bowman, J. ¶ 1 Stephen Wayne Canter appeals his convictions for two counts of attempted first degree child molestation, arguing that double jeopardy bars the convictions. He also appeals his sentence, alleging that his crimes amount to the same criminal conduct in calculating his offender score. Because Canter intended to molest two separate children and took substantial steps toward accomplishing those criminal objectives, we reject his arguments. In the unpublished part of this opinion, we decline to address Canter's argument raised for the first time on appeal that police unlawfully impounded his vehicle. We also reject Canter's claims that police exceeded the scope of a search warrant, destroyed potentially useful evidence in bad faith, and violated his right to privacy under the Washington privacy act (WPA), chapter 9.73 RCW. Finally, we conclude sufficient evidence supports the trial court's determination that Canter took substantial steps to commit each count of attempted child molestation and that the arguments Canter raises in his statement of additional grounds for review lack merit. We affirm his convictions and sentence.

FACTS

¶ 2 The Washington State Patrol (WSP) Missing and Exploited Children Task Force partners with other law enforcement agencies to conduct undercover sex-crime operations. WSP Detective Carlos Rodriguez is the sergeant of the task force and began one such undercover operation by placing an advertisement in the "Casual Encounters" section of Craigslist.¹ He posed as a mother with two young daughters seeking a "daddy." Identifying himself as "Ben," Canter responded to the ad and began e-mailing with Detective Rodriguez online.²

¶ 3 The two eventually began texting. Detective Rodriguez told Canter that the daughters were ages 11 and 8. Canter described specific sex acts he desired with the girls. They also discussed "needs" for the "family," including a gift card with prepaid Tracfone³ minutes; and "rules" for sex, including using condoms. They did not specifically discuss exchanging money for sex, but Canter promised, "As Daddy, I would of course buy things for them from time to time. They need things also and you should have some relief if money is tight right now."

¶ 4 Eventually, Canter spoke by telephone with a female undercover detective posing as the mother. During this conversation, Canter talked about bringing the girls candy so they "will like him." Canter learned that the 11-year-old "likes Skittles" and that the 8-year-old "likes Butterfingers." Detective Rodriguez obtained warrant authorization to intercept and record the call, but the trial court later ruled the authorization was invalid.

¶ 5 Canter arranged to meet the girls in person. He discussed in graphic detail the sex acts he intended to engage in with the girls.⁴ Detective Rodriguez told Canter to drive to an "am/pm" convenience store and wait there for a text message with the girls’ home address. Canter responded that he would be driving a "black SUV."⁵

¶ 6 Canter drove a black Land Rover SUV to the am/pm at the agreed-on date and time. Surveillance officers watched Canter enter the am/pm and then drive across the street to a parking lot with an Albertsons grocery store and a McDonald's restaurant.⁶ Canter simultaneously e-mailed Detective Rodriguez that he was "driving to the McDonald[’]s." Detective Rodriguez texted Canter the address of a "target house" where detectives waited to arrest him.

¶ 7 Surveillance officers saw Canter drive back and forth in front of the target house as though he was lost.⁷ At the same time, Detective Rodriguez received an e-mail from Canter that he had parked outside in "a white truck" and wanted the mother and girls to come out. When no one came out of the target house, Canter drove away. Officer Andy Illyn and Deputy Jeff Ross followed Canter and activated the emergency lights on their unmarked patrol car. Deputy Ross conducted a "slow speed pinning" maneuver to prevent Canter from fleeing. Canter stopped his SUV in an empty parking lot.

¶ 8 Officers arrested Canter and seized his SUV. Canter had a white cell phone, his wallet, and cash on him at the time. Detective Rodriguez directed officers to bring Canter and the Land Rover to the target house to interview Canter and conduct an inventory search of the SUV before impounding it. Officer Illyn gave Canter a choice to allow Officer Illyn to drive the SUV back to the house or he would have it towed there. Canter agreed to let Officer Illyn drive the SUV to the target house. While inventorying the SUV, officers noticed a backpack of the type commonly used to transport laptops. They stopped the inventory, locked the vehicle, and applied for a search warrant. While waiting for the search warrant, officers impounded the SUV at the WSP "bullpen."

¶ 9 Detective John Garden applied for a warrant to search the cell phone found on Canter during his arrest and Canter's Land Rover, including any "digital media," "digital storage devices," "cell phones," and documents found inside the SUV. He included in his affidavit copies of Canter's text and e-mail conversations with the mother as well as a description of the phone call between Canter and the female officer posing as the mother. A judge approved the warrant, authorizing police to search Canter's SUV and seize any electronics found in the SUV, as well as search the contents of the white cell phone and any electronics found in the Land Rover. Officers executing the search of the SUV found a laptop, two black cell phones, two thumb drives, and a plastic Albertsons bag with an unopened box of condoms, a Tracfone gift card for 60 minutes, and unopened bags of Skittles and Butterfingers inside.

¶ 10 Canter had secured several devices by passcodes and encryption software, so officers were unable to recover the text or e-mail conversations from them. But officers did recover fragments of data referencing the e-mail address Canter used to communicate with Detective Rodriguez from the laptop. They also found evidence that Canter had used the laptop to search the Internet for how to set up a "Google Voice" telephone number. Canter's laptop Internet searches listed the Google Voice number he gave to the female officer posing as the mother to call him. And a manual search of the white cell phone taken from Canter's person during his arrest showed the Google Voice number in the phone's "call logs." Finally, a "test" text message Detective Rodriguez sent from the phone number he had been using for the mother to communicate with Canter "was received by the phone [Canter] possessed" the night of his arrest.

¶ 11 The State charged Canter with one count of attempted first degree rape of a child and one count of commercial sex abuse of a minor. Pretrial, Canter moved to suppress evidence he claimed officers obtained following an unlawful arrest or under a search warrant unsupported by probable cause. Canter did not challenge the police impound or inventory search of his SUV. Instead, he claimed that the search exceeded the warrant's scope. Specifically, the plastic grocery bag with the Tracfone gift card, candy, and condoms that officers found in the SUV. The court scheduled a suppression hearing.

¶ 12 During the two-day suppression hearing, Officer Illyn testified about setting up surveillance at the am/pm store. He said that the task force "command center" at the target house "sent Deputy Ross a picture" of a person it believed was the person communicating with Detective Rodriguez. "[B]ut it turned out not to be the defendant." Officer Illyn admitted that he did not mention the photograph in his report or during his defense interview. But he believed he saw the photograph on Deputy Ross’ cell phone. None of the task force members mentioned the picture in their testimony or reports.

¶ 13 The trial court denied Canter's motions, ruling probable cause supported Canter's arrest and the grocery bag of items fell "under the plain view exception" to the warrant. The court suppressed the content of the phone conversation between Canter and the female detective posing as the mother because of "all the problems" with the affidavit to intercept the call. The court entered extensive findings of fact and conclusions of law in support of its rulings. Canter then moved to compel discovery of the suspect photograph Officer Illyn testified to and any information associated with it.

¶ 14 On June 30, 2017, the prosecutor notified Detective Rodriguez of the motion to compel. In early August, while the defense motion was pending but before the trial court issued a subpoena duces tecum,⁸ the WSP collected all of the task force's Blackberry devices and replaced them with Apple iPhones. The Blackberry devices were "wiped" and recycled by an outside company. All copies of the suspect photograph sent to Deputy Ross were destroyed in the process.

¶ 15 Canter moved to dismiss his charges, arguing the police destroyed material exculpatory evidence. In the alternative, he asserted police destroyed potentially useful evidence in bad faith. The trial court held a hearing. It concluded the photograph and any associated information were not materially exculpatory because "this prosecution is not going to rise or fall on the identity of the individual [in] that photograph." Instead, it will "rise and fall on...