       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                     )
                                         ) No. 77436-1-1
                     Respondent,         )
                                         ) DIVISION ONE
             v.                          )
                                         )
GASPAR ORTIZ-ORTIZ                       ) UNPUBLISHED OPINION
                                         )
                     Appellant.          ) FILED: March 11,2019
                                         )

      SMITH, J. — Gaspar Ortiz-Ortiz appeals his voyeurism conviction and a

condition of community custody. Citing article I, section 7 of the Washington

Constitution, he argues that the trial court erred by failing to suppress evidence

collected pursuant to a second search warrant after the first warrant was found

illegal. Because the State did not seek the second warrant based on the first

illegal search, the independent source exception to the exclusionary rule applies

and we affirm the conviction. However, we agree that the sentencing court

exceeded its authority by ordering the challenged community custody condition

and reverse and remand for the court to strike that condition.

                                      FACTS

       On August 13, 2016, J.M. went to a WinCo grocery store. Soon after

entering, she noticed Ortiz-Ortiz staring at her. Unbeknownst to J.M., Ortiz-Ortiz

followed her around the store, taking pictures of her with his cell phone. At one
No. 77436-1-1/2

point, he bent down close to J.M., placed his phone underneath her dress, and

took a video of her upper thighs. Another shopper noticed and confronted Ortiz-

Ortiz. WinCo employees stopped Ortiz-Ortiz from leaving the store and called

the police.

       While they waited, Ortiz-Ortiz kept putting his hand in his pocket, handling

his phone. It appeared as though he was trying to delete pictures from his

phone. The police arrived, interviewed witnesses, and arrested Ortiz-Ortiz. They

seized his cell phone and impounded it into evidence.

       On August 15, 2016, police obtained a warrant to search the cell phone for

"[a]ny and all (including deleted) photos or videos related to this investigation of

voyeurism." Officers seized 585 photos and video files, and Ortiz-Ortiz was

charged with voyeurism. Ortiz-Ortiz moved to suppress the evidence collected

from his cell phone. On June 5, 2017, the court granted the motion and

suppressed the cell phone evidence, reasoning that the search warrant lacked

sufficient particularity. On the same day, police obtained a warrant to search

Ortiz-Ortiz's phone for "[p]hotos or videos related to this investigation of

voyeurism at WinCo in Bellingham, Washington, taken of[J.M.](17 year old

female wearing a maroon striped dress) on August 13th, 2016." A search of the

phone revealed 18 photos of J.M. stored in a folder, where data can remain after

it is deleted. The defendant again moved to suppress the evidence collected in

the second search. The trial court denied the motion.

       A jury found Ortiz-Ortiz guilty of voyeurism. In sentencing, the court

ordered that Ortiz-Ortiz "[c]omplete a mental health evaluation and comply with


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any recommended treatment" as a community custody condition. Ortiz-Ortiz

appeals the denial of his motion to suppress the second search and the mental

health community custody condition.

                                   DISCUSSION

       Ortiz-Ortiz argues that the trial court erred by declining to suppress the

evidence obtained in the second search. He contends that the evidence should

be suppressed because the independent source exception to the exclusionary

rule does not apply in these circumstances.

       We review de novo conclusions of law relating to the suppression of

evidence. State v. Gaines, 154 Wn.2d 711, 716, 116 P.3d 993 (2005). The

exclusionary rule generally requires that evidence obtained from an illegal search

and seizure be suppressed. Gaines, 154 Wn.2d at 716-17. This includes the

initially seized evidence and any fruit of the poisonous tree. Gaines, 154 Wn.2d

at 716-17; Wong Sun v. United States, 371 U.S. 471,484-85, 83 S. Ct. 407, 9 L.

Ed. 2d 441 (1963). "The independent source doctrine is a well-established

exception to the exclusionary rule." State v. Betancourth, 190 Wn.2d 357, 364,

413 P.3d 566 (2018). "Under the independent source doctrine, evidence tainted

by unlawful police action is not subject to exclusion 'provided that it ultimately is

obtained pursuant to a valid warrant or other lawful means independent of the

unlawful action." Betancourth, 190 Wn.2d at 364-65 (quoting Gaines, 154

Wn.2d at 718).

       When applying the independent source doctrine, the determinative

question is whether the challenged evidence was discovered through a source


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independent from the initial illegality. Betancourth, 190 Wn.2d at 365 (citing

Murray v. United States, 487 U.S. 533, 542, 108 S. Ct. 2529, 101 L. Ed. 2d 472

(1988)). "To determine whether challenged evidence truly has an independent

source, courts ask whether illegally obtained information affected (1) the

magistrate's decision to issue the warrant or (2) the decision of the state agents

to seek the warrant." Betancourth, 190 Wn.2d at 365. If the illegal search did not

contribute to the issuance of the warrant, "then the evidence is admissible

through the lawful warrant under the independent source doctrine." Betancourth,

190 Wn.2d at 365.

       Under Betancourth, the independent source doctrine applies here. 190

Wn.2d at 364. In Betancourth, a district court granted a search warrant, ordering

an out-of-state cell phone carrier to provide records. The carrier provided the

records. Later, the superior court ruled that it alone had jurisdiction to issue out-

of-state warrants. So a detective requested and obtained a warrant from the

superior court, using an affidavit that was essentially identical to that used for the

district court warrant. The detective sent the new warrant to the cell phone

carrier. Because it did not request any new information, the carrier did not

produce any records. Betancourth, 190 Wn.2d at 362.

       The Washington Supreme Court held that the independent source

doctrine applied, and the cell phone records were admissible under the new,

lawful warrant. It reasoned that the new warrant was "untainted by any prior

illegality" because the "decision to issue the 2013 superior court warrant[was




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No. 77436-1-1/5

not] affected by, or made in reliance on, information obtained from the illegal

search." Betancourth, 190 Wn.2d at 370.

       Here, the second warrant application to search Ortiz-Ortiz's phone did not

contain any information regarding the results of the first invalid search. It merely

added details regarding the crime: "Photos or videos related to this investigation

of voyeurism at WinCo in Bellingham, Washington, taken of [J.M.](17 year old

female wearing a maroon striped dress) on August 13th, 2016." The police

learned these details from their initial investigation, not from the illegal search of

the cell phone. When officers arrived at the WinCo on August 13, 2016, a

witness reported seeing Ortiz-Ortiz take a video up J.M.'s skirt. And the initial

police report reflected that J.M. was wearing a maroon striped dress. The

independent source doctrine applies because officers did not gain any

information from the phone records supplied in response to the illegal warrant

that led them to seek the second warrant. Nor was the trial court's decision to

issue the second warrant affected by, or made in reliance on, information from

the illegal search.

       Ortiz-Ortiz argues that the second warrant is not a truly independent

source because it would not have been sought but for the invalid first warrant.

State v. Mayfield, No. 95632-4, slip. op. at(Wash. Feb. 7, 2019),

http://www.courts.wa.gov/opinions/pdf/956324.pdf, expressly rejected this

argument. Mayfield, discussing Betancourth, reasons that

       [a]rguably, the original defective warrant was a distant "but for"
       cause of discovering the evidence because the State did not seek
       the second warrant until it discovered the defect in the first one.
       However the evidence itself was untainted because the second,

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       valid warrant was a truly independent source. "[T]he illegal search
       [pursuant to the defective warrant] in no way contributed to the
       issuance of the [valid] warrant and police would have sought the
       warrant even absent the initial illegality." Therefore, the State
       derived no benefit from the defective first warrant, and the evidence
       was admissible.

Mayfield, slip. op. at 22(most alterations in original)(citations omitted)(quoting

Betancourth, 190 Wn.2d at 365). Under Mayfield and Betancourth, the

independent source doctrine applies even though the State would not have

sought the second warrant but for the first warrant's initial illegality.

       The trial court did not err by admitting the evidence collected pursuant to

the second lawful search of Ortiz-Ortiz's phone.

Conditions of Community Custody

       Ortiz-Ortiz argues that the trial court exceeded its authority by ordering

mental health evaluation and treatment as a condition of community custody.

The State concedes that this condition of community custody must be stricken

because the sentencing court did not find that Ortiz-Ortiz suffered from mental

illness. A sentencing court may not order mental health evaluation or treatment

unless it makes specific findings that the defendant meets the statutory definition

of a "mentally ill person" and that the mental health condition influenced the

offense. RCW 71.24.025; State v. Brooks, 142 Wn. App. 842, 851, 176 P.3d 549

(2008). The sentencing court made no such findings, so we accept the State's

concession.




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      We affirm in part, reverse in part, and remand to the superior court to

strike the challenged community custody condition.




WE CONCUR:
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