          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 In the Matter of the Personal Restraint     )     No. 75984-1-I
 of
                                             )     DIVISION ONE
 SVEINARVEVIK,                               )
                                             )     UNPUBLISHED OPINION
                      Petitioner.            )
___________________________________          )     FILED: August 5, 2019
         HAZELRIGG-HERNANDEZ, J.    —   In a personal restraint petition, Svein A. Vik

  argues that his counsel was ineffective when he failed to challenge the warrant

  used to seize stolen property from his home. Search warrants must describe the

  items to be seized with reasonable particularity.      Vik argues that the victim’s

  assistance in executing the search warrant demonstrated that it was insufficiently

  particular.   Because common law tradition permits third parties to aid in the

  execution of a search warrant, Vik fails to demonstrate that his counsel was

  ineffective for not challenging the warrant. Denied.

                                           FACTS

         The facts of this case are described in detail in Svein Vik’s direct appeal,

  State v. Vik, No. 74803-3-I. Here we address only the facts relevant to the issue

  argued in Vik’s personal restraint petition.     Vik and several other men were

  contacted during a suspected burglary of Sandra Davis’s Lynnwood home. Vik

  voluntarily accompanied Detective Collin Ainsworth to the police station for an
No. 75984-1/2



interview. During Vik’s voluntary interview, he offered to let the detective search

his house. At the house, Detective Ainsworth saw a rolled up rug and took a picture

of it. Davis had reported that some rugs were stolen. After Davis confirmed that

the photographed rug was hers, Detective Ainsworth applied for and received a

search warrant. Detective Ainsworth searched Vik’s home pursuant to the warrant.

Sandra Davis was called to Vik’s house to help identify items stolen from her

property. Based in part on items recovered from his home, Vik was convicted of

Second Degree Possession of Stolen Property and Residential Burglary.

       Vik filed a CR 7.8 motion during the pendency of his direct appeal. The trial

court transferred that motion to this court for review as a personal restraint petition.

                                    DISCUSSION

       In a personal restraint petition, the petitioner is entitled to full collateral

review of a conviction or sentence if the petitioner shows actual prejudice from a

constitutional error. In re Pers. Restraint of Light-Roth, 191 Wn.2d 328, 333, 422

P.3d 444 (2018) (quoting In re Pers. Restraint of Gronguist, 138 Wn.2d 388, 396,

978 P.2d 1083 (1999)).      To prevail on an alleged constitutional violation, the

petitioner must establish by a preponderance of the evidence that the constitutional

error substantially prejudiced the petitioner. In re Pers. Restraint of Coggin, 182

Wn.2d 115, 119, 340 P.3d 810 (2014) (citing In re Pers. Restraint of St. Pierre, 118

Wn.2d 321, 328, 823 P.2d 492 (1992)). Vik argues that he was denied effective

assistance of counsel.      Both the Sixth Amendment and article I, section 22

guarantee the right to the effective assistance of counsel in criminal proceedings.




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No. 75984-1/3



In re Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001) (citing Strickland v. Wash.,

466 U.S. 668, 684-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).

I.     Vik fails to establish ineffective assistance of counsel because he fails to

       demonstrate deficient performance by his attorney.

       Vik argues that his counsel was ineffective because he failed to challenge

the search of Vik’s house authorized by the warrant.          In order to reverse for

ineffective assistance of counsel, we apply the two pronged Strickland test. State

v. McFarland, 127 Wn.2d 322, 334-35, 889 P.2d 1251 (1995); see Strickland 466

U.S. at 687. The defendant must show that the representation was deficient, and

that the deficient representation resulted in prejudice. In re Pers. Restraint of

Crace, 174 Wn.2d 835, 840, 280 P.3d 1102 (2012) (quoting Strickland, 466 U.S.

668). In the ineffective assistance of counsel context, prejudice is a reasonable

probability that the results of the proceeding would have been different, i.e., a

probability sufficient to undermine confidence in the outcome. Crace, 174 Wn.2d

at 840 (quoting Strickland, 466 U.S. at 694). Where an ineffective assistance claim

rests on the failure to competently litigate a motion to suppress evidence from an

unconstitutional search, the defendant must show that the search was

unconstitutional. Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 91

L. Ed. 2d 305 (1986). Because Vik cannot show that the warrant was insufficiently

particular or that the victim’s assistance in the execution of the warrant violated his

constitutional rights, his argument for suppression, claim of ineffective assistance,

and personal restraint petition all fail.




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No. 75984-1/4



       A.       Vik has not shown that the warrant was not reasonably particular.

       The Fourth Amendment requires warrants to particularly describe the things

to be seized. State v. Perrone, 119 Wn.2d 538, 545, 834 P.2d 611(1992) (quoting

U.S. CONST. amend. IV). The purpose of the particularity clause is to prevent

general searches, prevent the mistaken seizure of objects not authorized by the

warrant, and to prevent the issuance of warrants on loose, vague, or doubtful

bases of fact. j.ç~    Reasonable particularity is to be evaluated in the light of

practicality, necessity, and common sense. ki. at 546. The degree of particularity

required will depend on the nature of the materials sought and the circumstances

of each case. j4~ at 547.       A description is valid if it is as specific as the

circumstances and the nature of the activity under investigation permits. ki.

Whether a search warrant is sufficiently particular is reviewed de novo. jç~ at 549.

       When allegations are based on matters outside the record, petitioners must

demonstrate that they have competent, admissible evidence to establish the facts

that entitle them to relief. In re Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828

P.2d 1086, cert. denied, 113 S. Ct. 421 (1992). Vik does not supply the court with

the item list that was attached to and incorporated by the search warrant. He

nevertheless challenges the particularity of the warrant on two bases. First, he

argues that the warrant was insufficiently particular because Officer Ainsworth

called the victim to help him identify which items were stolen from her home.

Second, he argues that because police seized items unrelated to the Davis

burglary, that the warrant must be a general, exploratory warrant. Neither claim

succeeds.


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No. 75984-1/5



        Descriptions in an application for search warrant that ultimately require a

victim of theft to identify the stolen items are not necessarily insufficiently particular.

The only item specifically described in the search warrant, rather than the

incorporated list, is a ‘primarily blue Persian style area rug with flowerish design

    approximately 10’ x 12’.” That description allowed the officers to reasonably

distinguish the rug to be seized from most other rugs and any objects that are not

rugs in Vik’s house. If the officers had encountered a second large, blue Persian

rug with flowerish designs and called Davis to distinguish which of the two rugs

were hers, it would not have negated the particularity of the warrant.1

        Vik claims that, because police seized items from his home that did not have

anything to do with the Davis burglary, the police must have executed an

exploratory search. But the record indicates that other property recovered from

his home was stolen during other burglaries. Vik has provided no information to

determine whether or not additional warrants supported seizure of those items.

Here, the warrant directed officers to seize items from an incorporated list of stolen

property. Even if the officers recovered property that fell outside the scope of the

warrant, the proper remedy would be to exclude the unconstitutionally seized

property, not to declare the entire warrant invalid. Given these circumstances, the

seizure of additional property does not support an inference that the warrant was

insufficiently particular.




        1 In other circumstances, such as a search warrant executed on a store specializing in
Persian rugs, that description could be insufficient.


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No. 75984-1/6



       B.       The presence of a third party assisting in the execution of a search

                warrant does not violate article I, section 7.

       Next, Vik argues that because RCW 10.79.020 requires warrants be

directed to law enforcement, we should hold that third party assistance in the

execution of a valid warrant violates state law and article I, section 7. Extensive

common law tradition and the explicit approval of the United States Supreme Court

permits third parties, including victims of theft, to assist the police in identifying

stolen property under the Fourth Amendment. Wilson v. Layne, 526 U.S. 603, 611-

12, 119 S. Ct. 1692, 143 L. Ed. 2d 818 (1999). Vik argues that article I, section 7

should provide additional protection from a third party assisting a warrant-

authorized search. In State v. Gunwall, our Supreme Court recognized that article

I, section 7 of the Washington State Constitution provides greater protection from

government intrusion than the Fourth Amendment to the United States Constitution

in some circumstances. 106 Wn.2d 54, 63-64, 720 P.2d 808 (1986).                While

Gunwall originally set out six criteria necessary to argue for a separate

interpretation on independent state constitutional grounds, that analysis is no

longer necessary to justify an independent state law analysis of article I, section 7

in new contexts. Statev. Mayfield, 192 Wn.2d 871, 878, 434 P.3d 58(2019). Vik’s

article I, section 7 argument is grounded in his statutory interpretation of RCW

10.79.020.

       We interpret statutes de novo, striving to ascertain and carry out the

legislature’s intent. State v. Yancey, 193 Wn.2d 26, 30, 434 P.3d 518 (2019). We

start with the statute’s plain meaning, using the ordinary meaning of the language,


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No. 75984-1/7


the context in which the statutory provision is found, related provisions, and the

statutory scheme as a whole. We start with the statute’s plain meaning, using the

ordinary meaning of the language, the context in which the statutory provision is

found, related provisions, and the statutory scheme as a whole. k~. at 30. We must

not add words where the legislature has chosen not to include them. Id.

       Here, the plain language of RCW 10.79.020 only requires that warrants be

directed to law enforcement. It contains no references to third parties. While the

statute makes it clear that a warrant can only be issued to law enforcement, the

statute does not bar any third party from assisting in the execution of that warrant,

whether the party is emergency personnel, a locksmith, or a victim of theft, as is

the case here.    Interpreting the statute to bar that participation would require

adding words to the statute.

       The language of article I, section 7, gives us no other reason to deviate from

the common law in this case. Article I, section 7 requires authority of law before a

person’s private affairs may be disturbed. State v. Miles, 160 Wn.2d 236, 243, 156

P.3d 864 (2007). That authority of law is generally satisfied by a valid warrant. ki.

at 244.   Where, as here, a valid warrant authorizes the search, a third party

assisting in the execution of the warrant does not offend the protections of article

I, section 7.

       Because Vik is unable to establish that the search warrant was insufficiently

particular, he is accordingly unable to demonstrate that counsel’s failure to

challenge the search warrant on that basis supports a finding of deficiency. As




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No. 75984-1/8



such, Vik does not satisfy the first prong of the Strickland test and his claim of

ineffective assistance of counsel fails.

       Denied.




                                           ‘-III   —
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WE CONCUR:
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