             IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                              )        No. 77175-2-I
                                                  )
                          Respondent,             )
                                                  )        DIVISION ONE
                          v.                      )
                                                  )
WILLIAM PHILLIP, JR.,                             )        PUBLISHED OPINION

                          Appellant               )        FILED July 1,2019


       MANN, A C J       —     In the digital age that we live in, cell phones are now a

“pervasive and insistent part of daily life       “~   But with the advent of this new technology,

comes the potential for its abuse Cell phone data, for example, represents a new

frontier in police investigative tactics Cell-site location information (CSLI) is highly

detailed data, which can create a historical map of where a particular cell phone

traveled during a set period of time Based on this technology, police are able to look

back in time and find out precisely where anyone was at a given time, buttressed only

by the retention policy of the individual’s wireless provider.




       1   Riley v. California, 573 u.s. 373, 385, 134 S. Ct. 2473, 2484, 189 L. Ed. 2d 430 (2014).
No. 77175-2-1/2

             The protection against abuse of this highly detailed and personal information is

through a familiar mechanism the constitutional requirements of a warrant A warrant,

supported by probable cause and meeting the particularity requirement, provides an

individual with the constitutionally required protections against privacy invasions by the

state.

         William Phillip sought discretionary review of a trial court order approving a

subpoena issued to Phillip’s wireless provider requiring the provider to release Phillip’s

CSLI records Because the State failed to seek issuance of a warrant, and State and

trial court failed to recognize Phillips privacy interest in the CSLI records, we reverse,

vacate the subpoena, and remand for further proceedings.



         In May 2010, Phillip lived in Portland, Oregon             2   Seth Frankel lived in Auburn,

Washington Frankel’s girlfriend, Bonnie Johnson, lived part-time with Frankel in

Auburn and part-time in Portland where she worked.

         On May 21, 2010, Johnson became concerned when she was unable to reach

Frankel by phone Johnson contacted Frankel’s neighbor, who went to Frankel’s house

and observed a body lying on the floor The Auburn police department responded and

discovered Frankel was dead due to a knife wound to his throat An 18-inch black zip

tie was attached to one of Frankel’s wrists and another zip tie was found near his body.

Fran kel’s house was locked and appeared orderly other than the area immediately

surrounding Frankel’s body A medical examiner estimated Frankel’s time of death as

between 800pm May21 and 430am May 22, 2010


         2   The background facts are taken from this court’s opinion in State v. Phillip, No. 72120-8-I
(Wash. Ct. App. Aug. 29, 2016) (unpublished), http://www.courts.wa.gov/opinions/pdf/721208.pdf
                                                       -2-
No. 77175-2-1/3

        Over the next few days, Auburn police interviewed Johnson multiple times.

During these interviews and a consensual search of Johnson’s cell phone, police

discovered that Johnson had been in frequent contact by telephone with Phillip and

another man from Sacramento, California Text messages between Johnson and Phillip

appeared flirtatious.3

        On May 25, 2010, at the request of the Auburn police, a Portland police officer

visited Phillip. Without teHing him that Johnson was dead or that he was investigating a

murder, the officer asked if Phillip knew Johnson. Phillip stated that Johnson was a

friend When asked if he had been to Auburn recently, Phillip responded that he wanted

to exercise his right to counsel

        Over the course of their investigation, the Auburn police obtained a total of five

warrants First, on May 27, 2010, the Auburn Police obtained a warrant requiring AT&T

to provide them with Phillip’s CSLI records The affidavit for the May 2010 warrant

described the crime scene, that Johnson and Frankel were in a relationship, and that

Johnson continued to speak to her previous boyfriend, Phillip.

        On June 9, 2010, the police visited the convention center where Phillip worked

Phillip’s supervisor explained that Phillip commonly used zip ties in his job. The zip ties

used at Phillip’s work were identical to the zip ties found in Frankel’s home.

       The police received Phillip’s CSLI records from AT&T on June 20, 2010 The

records revealed that on the day of Frankel’s murder Phillip traveled from Portland,

Oregon to Auburn, Washington. Phillip remained in Auburn—at times within blocks of

Frankel’s home—until approximately 9:00 p.m., and then traveled back to Portland.


        ~ Auburn police eliminated the california man as a potential suspect because his cell phone
records revealed that at the time Frankel was murdered, the man was in the Sacramento, California area.
                                                  -3-
No. 77175-2-1/4

       On June 22, 2010, the police obtained a warrant to search Phillip’s apartment,

vehicle, and person While executing that warrant, the police seized Phillips cell phone

and journal. In his journal, Phillip expressed that he was obsessed with Johnson and

that Fran kel was not good enough for her.

       Auburn police then spoke with Katy Sanguino, Phillip’s mother She explained

that Phillip, who only owned a motorcycle, had borrowed her car from May 21 to May

22, 2010 Sanguino gave the police consent to search her vehicle, where police found

traces of blood on the inside driver’s door handle.

       In August of 2010, the Washington State Patrol Seattle Crime Laboratory

determined that a bloodstained towel from the crime scene revealed two different

deoxyribonucleic acid (DNA) types The first type was from Frankel, the second was

from an unknown male On November 5, 2010, the police obtained a warrant for

Phillip’s DNA That DNA sample revealed that Phillip was a possible contributor of the

second DNA sample and only about 1 in 2 2 million individuals could have contributed

the sample. After the DNA results came in, police arrested Phillip and charged him with

first degree murder

       The police’s fourth warrant came on January 25, 2012, and allowed the police to

search the physical contents of Phillip’s cell phone. In March 2012, Wyman Yip, the

King County Prosecutor assigned to Phillips case, asked the Auburn police to seek a

more thorough warrant for Phillip’s CSLI records. Yip stated that the May 2010 warrant

was defensible, but the affidavit could have included other facts that were known at the

time. Police prepared a new affidavit that incorporated the affidavit used to obtain the

May 2010 warrant and provided further details about the crime scene and Johnson’s


                                             -4-
No. 77175-2-115

relationship with Phillip. The trial court issued the warrant for Phillip’s CSLI records on

March 22, 2012.

         Pre-trial, Phillip moved to suppress all evidence obtained during the execution of

the search warrants. The trial court denied the motion. Although the court found that

the May 2010 warrant was not supported by probable cause, it determined that the

March 2012 warrant was supported by probable cause and met the requirements of the

independent source doctrine. The trial court also determined that the remaining

warrants were valid.

         Phillip was tried for first degree murder After his first trial ended in a hung jury, a

second jury convicted Phillip of Frankel’s murder Phillip appealed his conviction to this

court.

         On appeal, we concluded that the facts in the affidavits used to obtain the May

2010 and March 2012 warrants for Phillips CSLI records failed to provide a sufficient

factual basis from which to infer that evidence of the crime would likely be found on

Phillip’s CSLI records. As we explained:

         The March 2012 affidavit incorporates the May 2010 affidavit and thus
         includes the earlier affidavit’s brief description of the crime scene,
         identification of Johnson as Frankel’s girlfriend, information that Johnson
         asked the neighbor to check on Frankel, and description of Phillip as a
         man with whom Johnson had a close relationship. The March 2012
         affidavit provides further details about the crime scene, including the fact
         that doors were locked and that, except for the area immediately
         surrounding the body, the apartment appeared untouched It also
         includes Johnson’s statements that Phillip had served in the military, he
         was the only person she knew who had ever spoken ill of Frankel, he was
         the only person she could think of who would want to hurt Frankel, and he
         was extremely upset when she broke up with him The affidavit reports
         Phillip’s statement to the Portland police that Johnson was “just a friend”
         and his invocation of the right to counsel when asked if he had ever been
         in Auburn.


                                               -5-
No. 77175-2-116

      The affidavit includes copies of text messages between Johnson and
      Phillip in the week of Frankel’s death. The text messages appear
      flirtatious. In one message, Phillip refers to Frankel as an “unhot old
      man In Johnson’s reply, she tells Phillip not to speak about Frankel like
              “

      that. The text messages do not express any intent to harm Frankel.

      The facts in the affidavit indicate that Phillip had a close relationship with
      Johnson and frequently communicated with her by telephone Johnson
      said that Phillip was the only person she could think of who had spoken ill
      of Frankel and who might want to harm Frankel But the only evidence
      supporting these assertions was Phillip’s text referring to Frankel as an
      “unhot old man” and Johnson’s claim that Phillip was very upset when she
      broke up with him These facts at most suggest that Phillip may have
      been jealous of Frankel’s relationship with Johnson But they do not
      create a reasonable inference that Phillip was involved in Frankel’s death
      or that evidence relating to Frankel’s death would likely be found in
      Phillips cell phone records.

      The affidavit also establishes that Phillip did not want to discuss with
      police whether he had traveled to Auburn This fact may have indicated to
      police that further investigation was warranted, but it does not establish a
      connection sufficient to infer that evidence of the crime would likely be
      found in Phillips cell phone records “Absent a sufficient basis in fact from
      which to conclude evidence of illegal activity will likely be found at the
      place to be searched, a reasonable nexus is not established as a matter of
      law” Them, 138 Wn 2d at 147 [41 See ~g, State v Smith, 93 Wn 2d
      329, 352, 610 P.2d 869 (1980); State v. Helmka, 86 Wn.2d 91, 92-93, 542
      P2d 115 (1975), Statev Patterson, 83 Wn2d 49, 52, 61, 515 P2d 496
      (1973).

      The State argues that the facts in the affidavit give rise to a chain of
      inferences supporting probable cause The State argued below that
      Phillip’s relationship with Johnson gave him a motive to harm Frankel,
      Phillip could have obtained a key to the apartment from Johnson, and
      Phillip thus may have had access to Frankel. The State further argued
      that Johnson and Phillip may have been jointly involved in the crime and
      that if either of them was the killer, evidence of the crime would likely be
      found in Phillips phone records.

     These are mere speculations The facts in the affidavit provide no basis
     for inferring that Johnson and Phillip conspired to harm Frankel and that
     evidence of this conspiracy would be found in Phillips phone records. To
     the contrary, in the text messages, Johnson defends Frankel and instructs
     Phillip not to speak badly of him. Conclusory statements, speculations,

     ~‘   State v. Them, 138 Wn.2d 133, 977 P.2d 582 (1999).

                                                 -6-
 No. 77175-2-117

        and suspicions do not provide a factual basis that supports probable
        cause. Them, 138 Wn.2d at 147.

Phillip, slip op. at 9-12 (internal footnote omitted).

        Accordingly, we reversed Phillip’s conviction because the warrants for Phillip’s

CSLI records were not supported by probable cause.5

        On remand, the State moved the trial court for issuance of a subpoena düces

tecum directed to AT&T for Phillip’s CSLI records. Rather than offering a new affidavit

in support of the subpoena, the State filed a memorandum that attached six previously

filed affidavits including (1) the December 8, 2010, certification for determination of

probable cause that included information from the tainted May 2010 CSLI records, (2)

the affidavit for the May 22, 2010, search warrant for the CSLI records that the trial court

held insufficient, (3) an unsworn June 22, 2010, affidavit for the warrant to search

Phillip’s apartment, vehicle, and person, that included information from the tainted May

2010 CSLI records, (4) the affidavit for the November 5, 2010 warrant for Phillips DNA,

(5) the affidavit for the January 25, 2012 warrant for Phillip’s cell phone that included

information from the tainted May 2010 CSLI record, and (6) the affidavit for the March

22, 2012, renewed warrant for Phillip’s CSLI records that included information from the

tainted CSLI record AND that this court held insufficient.

        In its accompanying legal memorandum, the State recited the evidence

contained in the attached affidavits, including a recitation of the information contained in

the tainted CSLI records. While the State’s memorandum urged the trial court to apply

a probable cause standard for issuance of the subpoena, the memorandum also


        ~ We concluded that the three additional warrants police obtained during their investigation of
Phillip were validly based on evidence independent from the evidence collected through the two invalid
warrants.

                                                    -7-
No. 77175-2-118

incorrectly asserted that our decision in Phillip “noted that the facts established that the

State would have sought the cell phohe usage records via the second warrant even

without knowledge of what the [tainted CSLI] records showed.”6 The State’s

memorandum further argued that, while it was requesting a subpoena, it should not

need either a subpoena or probable cause because Phillip did not have a legitimate

expectation of privacy in the cell phone records. Finally, the State argued that the

independent source doctrine applied. The State asserted that Phillip “implicitly held that




        6   The State’s memorandum includes~ the following quote from our opinion in Phillip to argue that
a warrant was unnecessary:
        Police obtained the cell phone records from AT&T on June 20. The facts in the affidavit
        amply demonstrate that Phillip was a person of interest under active investigation prior to
        that date We conclude that based on the information gathered in their investigation prior
        to June 20 the police had probable cause to believe Phillip was involved in the crime and
        would have sought the additional warrants even without knowledge of [what the AT&T
        cell phone usage records showed].
 (Paraphrase in original memorandum) (quoting Phillip, slip op. at 16).

We disagree with the State s interpretation of our decision We specifically stated

        The trial court did not err in admitting the evidence obtained from executing the warrant
        on Phillips apartment and vehicle.

        Under the same analysis, the November 2010 warrant authorizing search of Phillips DNA
        was also valid. The warrant affidavit incorporates the previous warrants and additionally
        states that the bloodstained towel recovered from the murder scene had yielded a partial
        DNA sample from an unknown male.5 Police did not have a known sample of Phillips
        DNA to compare with the sample obtained from the crime scene.

          We conclude that the trial court did not err in denying Phillips motion to suppress the
          evidence seized in executin~ the warrants for Phillips apartment motorcycle email cell
          phone, person, and DNA. But because the trial court erred in denying Phillips motion to
          suppress his phone records and the cell phone records related to the number Phillip
          dialed on the night of the crime, we reverse and remand for further proceedings.
Phillip, slip op. at 16-17 (emphasis added).

Contrary to the State s representation to the trial court our opinion only stated that the untainted evidence
supported the warrants for Phillip’s DNA, and to search his apartment, person, vehicle and cell phone.
Our opinion did not state or imply that the untainted evidence supported a warrant for Phillips CSLI
records.




                                                    -8-
No. 77175-2-1/9

the [cell phone] records would have been admissible under the independent source rule

if there had been sufficient probable cause set forth in the affidavit.”

         The trial court granted the subpoena for Phillip’s CSLI records on July 24, 2017.

In doing so, the court determined that Phillip had a lower expectation of privacy in the

historic cell tower records than he did in his personal cell phone and apartment The

trial court subsequently granted Phillip’s motion to stay the execution of the subpoena,

and certified its decision for interlocutory appeal RAP 2 3(b) We granted discretionary

review



         Phillip argues that the subpoena authorizing release of his CSLI records violates

article I, section 7 of the Washington Constitution and the Fourth Amendment to the

U.S. Constitution. We agree.

         Article I, section 7 of the Washington Constitution provides that “No person shall

be disturbed in his private affairs, or his home invaded, without authority of law” Article

1, section 7 “provides greater protection to individual privacy rights than the Fourth

Amendment.” State v. Betancourth, 190 Wn.2d 357, 366, 413 P.3d 566 (2018).

“Whereas the Fourth Amendment prohibits ‘unreasonable searches and seizures,’

article 1, section 7 of our State constitution prohibits any invasion of an individual’s right

to privacy without ‘authority of law.” Betancourth, 190 Wn.2d at 366. Further, ‘[i]n

contrast to the Fourth Amendment, article I, section 7 ‘recognizes an individual’s right to

privacy with no express limitations.” Id. (quoting State v. Winterstein, 167 Wn.2d 620,

631-32, 220 P.3d 1226 (2009)).




                                             -9-
No. 77175-2-1/10

         “Unlike its federal counterpart, Washington’s exclusionary rule is ‘nearly

categorical.” Id. (quoting State v. Alfana, 169 Wn.2d 169, 180, 233 P.3d 879 (2010).

Also in contrast with the Fourth Amendment, Washington does not allow a “good faith”

or “reasonableness” exception to the exclusionary rule. “Under article I, section 7, the

requisite ‘authority of law’ is generally a valid search warrant” Betancourth, 190 Wn 2d

at367.

                                              A.

         The parties devote the majority of their argument to the issue of whether the trial

court properly applied the independent source doctrine—an exception to exclusionary

rule—to authorize issuance of the July 2017 subpoena We do not address application

of the independent source doctrine because the subpoena fails as a matter of law.

Under the Supreme Court’s recent decision in Carpenter, an individual maintains an

expectation of privacy in CSLI records, and the way to obtain such records is through a

warrant.

      CLSI records include precise data that can be used to create a historical map of

where a particular cell phone traveled during a set period of time. As described by the

United States Supreme Court in Carpenterv. United States,       —   U.S., 138 S. Ct.

2206, 2211-12,, 201 L. Ed. 2d 507 (2018):

      There are 396 million cell phone service accounts in the United States—
      for a Nation of 326 m~llion people Cell phones perform their wide and
      growing variety of functions by connecting to a set of radio antennas
      called “cell sites.” Although cell sites are usually mounted on a tower, they
      can also be found on light posts, flagpoles, church steeples, or the sides
      of buildings Cell sites typically have several directional antennas that
      divide the covered area into sectors.

      Cell phones continuously scan their environment looking for the best
      signal, which generally comes from the closest cell site. Most modern

                                             -10-
No. 77175-2-I/il

       devices, such as smartphones, tap into the wireless network several times
       a minute whenever their signal is on, even if the owner is not using one of
       the phone’s features. Each time thephone connects to a cell site, it
       generates a time-stamped record known as cell-site location information
       (CSLI)  .   .




       Wireless carriers collect and store CSLI for their own business purposes,
       including finding weak spots in their network and applying “roaming”
       charges when another carrier routes data through their cell sites. In
       addition, wireless carriers often sell aggregated location records to data
       brokers, without individual identifying information of the sort at issue here
       While carriers have long retained CSLI for the start and end of incoming
       calls, in recent years phone companies have also collected location
       information from the transmission of text messages and routine data
       connections Accordingly, modern cell phones generate increasingly vast
       amounts of increasingly precise CSLI
       In Carpenter, the State sought and obtained court orders compelling two wireless

carriers to disclose CSLI records for Carpenter’s cell phone covering a time period

where Carpenter was suspected of committing multiple robberies The CSLI records

confirmed that Carpenter’s phone was in the vicinity of the charged robberies at the

times they were committed. The Court of Appeals for the Sixth Circuit affirmed

admission of the records at trial, holding that Carpenter lacked a reasonable expectation

of privacy for the CSLI records because cell phone users voluntarily convey cell location

data to their carriers in order to establish service United States v Carpenter, 819 F 3d

880, 888 (6th Cir 2016)

       The Supreme Court granted certiorari and reversed In doing so, the Court first

addressed whether, as argued by the State in this case, an individual maintains an

expectation of privacy in CSLI records. In answering in the positive, the Court explained

that CSLI records “provide[] an intimate window into a person’s life, revealing not only

his particular movements, but through them his familial, political, professional, religious,

and sexual associations.” Carpenter, 138 S. Ct. at 2217. “With just the click of a

                                            -11-
No. 77175-2-1/12

button, the Government can access.               .   .   deep repositor[ies] of historical location

information at practically no expense.” Carpenter, 138 S. Ct. at 2218. Indeed, CSLI

records actually “present even greater privacy concerns than the GPS monitoring of a

vehicle” as considered in United States v. Jones, 565 U.S. 400, 132 5. Ct. 945, 181 L.

Ed. 2d 911 (2012), because “a cell phone—almost a feature of human anatomy—tracks

nearly exactly the movements of its owners.” “A cell phone faithfully follows its owner

beyond public thoroughfares and into private residences, doctor’s offices, political

headquarters, and other potentially revealing locales.” Carpenter, 138 S. Ct. at 2218.

“When the Government tracks the location of a cell phone it achieves near perfect

surveillance   .   .   .   [and] the retrospective quality of the data here gives police access to a

category of information otherwise unknowable” Carpenter, 138 S Ct at 2218

       The Court further explained that “[T]he Government can now travel back in time

to retrace a person’s whereabouts, subject only to the retention. policies of the wireless

carriers.” Carpenter, 138 5. Ct. at 2218. “Whoever the suspect turns out to be, he has

effectively been tailed every moment of every day for.                  .   .   years, and the police may—in

the Government’s view—call upon the results of that surveillance without regard to the

constraints of the Fourth Amendment.” Carpenter, 138 S. Ct. at 2218.

       The Court concluded that accessing CSLI data from wireless carriers invades an

individual’s “reasonable expectation           of privacy in the whole of his physical movements.”
Carpenter, 138 S Ct at 2219 And, as a result, [b]efore compelling a wireless carrier to

turn over a subscribers CSLI, the Government’s obligation is a familiar one—get a

warrant.” Carpenter, 138 S. Ct. at 2221.




                                                          -12-
No. 77175-2-1113

        The Court’s concerns in Carpenter apply with even more persuasive force here.

Just as in Carpenter, Phillip’s cell phone data provided the State an intimate view into

Phillips life. Similar to Carpenter, Phillips cell phone data precisely tracked his

movements. Just as in Carpenter, the State traveled back in time to retrace Phillip’s

whereabouts: the State effectively tailed Phillip every moment, and the police may—in

the State’s view—call upon the results of that surveillance without regard to the

constraints of article I, section 7. And just as in Carpenter, this court is “obligated—as

‘[s]ubtler and more far-reaching means of invading privacy have become available to

the Government’—to ensure that the ‘progress of science’ does not erode Fourth

Amendment protections.” Carpenter, 138 S. Ct. at 2223 (quoting Olmstead v. United

States, 277 U.S. 438, 473-74, 48 5. Ct. 564, 72 L. Ed. 944 (1928) (Brandeis, J.,

dissent), overruled in part by Berger v. State of New York, 388 U.S. 41, 87 5. Ct. 1873,

18 L. Ed. 2d 1040 (1967)).

        Yet even more concerning is that the primary concern of article I, section 7 is to

protect privacy. “[A] disturbance of private affairs must satisfy article I, section 7’s

authority of law requirement.” State v. Miles, 160 Wn.2d 236, 249, 156, P.3d 864

(2007).~ Article I, section 7 “recognizes an individual’s right to privacy with no express

limitations[,]” Winterstein, 167 Wn.2d at 631-32, and “the paramount concern of our

state’s exclusionary rule is protecting an individual’s right of privacy.” Betancourth, 190

Wn.2d at 367.



        ~ While in Miles I, the Supreme Court concluded that a “search of personal banking records
without a judicially issued warrant or subpoena .   .violated article I, section 7[,]” 160 Wn.2d at 252
                                                        .

(emphasis added), it did not consider the validity of a subpoena versus a warrant when the State
attempted to invade an individual’s reasonable expectation of privacy, especially in consideration of the
U.S. Supreme Court’s opinion in Carpenter, 138 S. Ct. at 2221.
                                                            -13-
No. 77175-2-1114

         The State argued below that Phillip had no expectation of privacy in the CSLI

records because he voluntarily shared this data with his cell phone provider. Based on

the State’s argument, the trial court agreed that it was applying a lower threshold of

protection for cell phone data ‘[o}ne could certainly hold that Mr Phillip’s expectation of

privacy in his personal cell phone and apartment is higher than his expectation of

privacy in the historic cell tower location records” The State’s argument and trial court’s

determination is in direct odds with the holding in Carpenter This was in error as Phillip

has a reasonable expectation of privacy in his cell phone records, which was seriously

impeded when the police obtained those records without a valid warrant or probable

cause.

                                               B.

         In addition to misstating Phillip’s reasonable expectation of privacy in his CSLI

records, the State also failed to apply for and obtain a warrant based on probable

cause The State argues that it was justified in requesting a subpoena using a probable

cause standard because the probable cause standard, regardless of what mechanism it

is attached to, sufficiently satisfied the authority of law requirement of article I, section 7

Because of the expectation of privacy associated with CSLI records, we disagree

         The State attempts to distinguish Carpenter by arguing that the Supreme Court

did not say that a warrant was required in all situations, but instead said that a

subpoena or court order based on a reasonable grounds standard was insufficient

While the State is correct that the court order in Carpenter was based on a reasonable

ground standard, this does not diminish the Supreme Court’s mandate: “Before

compelling a wireless carrier to turn over a subscriber’s CS LI, the Government’s


                                             -14-
No. 77175-2-1/15

obligation is a familiar one—get a warrant.” Carpenter, 138 S. Ct. at 2221 (emphasis

added). And as the Court further explained “this Court has never held that the

Government may subpoena third parties for records in which the suspect has a

reasonable expectation of privacy.” j4.

       The State also cites to Garcia-Salgado, 170 Wn.2d 176, 240 P.3d 153 (2010), as

support for its argument that the subpoena here was the functional equivalent of a

warrant While in Garcia-Salgado, our Supreme Court held that “the warrant

requirement of the Fourth Amendment and article I, section 7 may be satisfied by a

court order[,]” 170 Wn.2d at 186, we disagree with the State that this ends our analysis.

First, the United States Supreme Court established a clear mandate that in order to

obtain cell phone records the government must get a warrant Carpenter, 138 5 Ct at

2221 And as Garcia-Salgado was decided eight years before Carpenter, our Supreme

Court did not consider its analysis of judicial orders in light of Carpenter

       But more importantly, our Supreme Court in Garcia-Salgado did not find that a

court order per se met the article I, section 7 authority of law requirement Instead, the

court found that “[a] court order ~ function as a warrant as long as it meets

constitutional requirements” Garcia-Salgado, 170 Wn 2d at 186 (emphasis added)

For a court order to sufficiently replace a warrant, the order

       must be entered by a neutral and detached magistrate, must describe the
       place to be searched and items to be seized, and must be supported by
       probable cause based on oath or affirmation, and there must be a clear
       indication that the desired evidence will be found, the method of intrusion
       must be reasonable, and the intrusion must be performed in a reasonable
       manner.

Garcia-Salgado, 170 Wn.2d at 186.



                                            -15-
No. 77175-2-1/16

       The State did not meet this standard. The State failed to support its revised

subpoena request with an updated affidavit of probable cause. Instead, the State

simply attached its previous affidavits. Four of those six affidavits submitted included

the specific details of, and argument about, Phillips illegally obtained cell phone

records Moreover, this court held in Philli~ that the two affidavits used to obtain the

CSLI records failed to demonstrate probable cause To be constitutionally valid, a

warrant must not only be supported by probable cause but it must also specifically tie

the facts known to the State to the specific evidence it seeks to obtain ~ Garcia

Salciado, 170 Wn 2d at 186 The State made no effort to connect the facts known to the

State to the need for Phillip’s CSLI records

       The trial court then followed the State’s recommendation and granted the

requested subpoena. But the trial court’s order also failed to include any particularized

finding of what fact supported a conclusion that the State had met its probable cause

burden for Phillip’s cell phone records When combined with the trial court’s mistaken

belief that Phillip had a reduced expectation of privacy in his CSLI records, its

impossible, from this record, to determine whether the State had probable cause,

compliant with the independent source doctrine, to obtain a warrant for Phillip’s CSLI

records.




                                           -16-
No. 77175-2-1/17

      We reverse, vacate the subpoena, and remand for further proceedings.




WE CONCUR:



        A~&~Q.                                     4~4%




                                       -17-
