                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                       December 15, 2015


    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                               No. 47315-1-II

                               Respondent,

        v.

 RAFAEL GUTIERREZ MEZA,                                         PUBLISHED OPINION

                               Appellant.


       MAXA, J. — Rafael Meza appeals the trial court’s denial of his motion to vacate an ex

parte order entered after he was charged with first degree theft, which required his credit union to

freeze and hold his account. We hold that the trial court’s order was not a search warrant or the

functional equivalent of a search warrant, and therefore did not satisfy the warrant requirement

for the seizure of Meza’s funds. Accordingly, we reverse and vacate the trial court’s order

requiring that the credit union freeze and hold Meza’s account.

                                              FACTS

       In June 2014, John Armstrong spoke with the Lewis County sheriff’s office and alleged

that Meza had swindled money from him. Armstrong claimed that he paid Meza $75,000 to

purchase Meza’s asphalt plant, but then discovered that Meza already had sold the asphalt plant

to someone named Cliff Mansfield.

       Deputy Justin Rogers investigated Armstrong’s allegations. Rogers contacted the Twin

Star Credit Union and verified that Meza held an account that had received large wire transfers
No. 47315-1-II


recently. Rogers also learned from Mansfield that Meza recently had informed him that he was

planning to go to Mexico.

       Rogers served Twin Star Credit Union with a valid search warrant for Meza’s account

information. Meza’s bank statements showed a check and four wire transfers from Mansfield

totaling $105,000, with the last transfer on June 18. They also showed a single wire transfer

from Armstrong in the amount of $15,000 on April 11. Meza’s checking account showed that

between October 2013 and June 2014, he withdrew approximately $89,000 in cash in 41

transactions involving between $3,000 and $5,000 each.

       On June 27, 2014, the State charged Meza with one count of first degree theft. On the

same day, the State presented an ex parte “Motion for an Order Freezing and Holding Funds” to

the trial court. Clerk’s Papers (CP) at 25-26. The State asserted that the funds in Meza’s credit

union accounts were “evidence in a felony offense.” CP at 25. The State’s motion was based on

the probable cause affidavit filed with the information and asserted that there was “a high

likelihood, based on [the affidavit regarding probable cause], that [Meza] will remove said funds

and leave the country.” CP at 26. The State did not request a search warrant for the credit union

funds or reference CrR 2.3 in its motion.

       The trial court signed an order directing Twin Star Credit Union to “freeze and hold all

accounts in the name of . . . Meza . . . as evidence in a criminal proceeding, until further order of

this Court.” CP at 14. Neither the motion nor the order cited any legal authority for freezing

Meza’s accounts.




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No. 47315-1-II


       In January 2015, Meza filed a motion to vacate the trial court’s order. Meza argued that

there was no legal authority for the order. The State contended that the trial court could seize the

fruits of a crime under CrR 2.3.

       The trial court denied Meza’s motion to vacate the order, ruling that there was probable

cause to believe that Meza’s account was related to the charged crime. The court concluded that

it had the authority to freeze Meza’s funds under CrR 2.3. In addition, the trial court ruled that

Meza’s account qualified as both evidence of a crime and the proceeds of a crime.

       Meza filed a motion for discretionary review. The commissioner granted discretionary

expedited review on the basis that the trial court committed probable error.

                                            ANALYSIS

       Meza argues that the trial court lacked the legal authority to order the credit union to

freeze his account because (1) the account lawfully could be seized only pursuant to a warrant

that complied with CrR 2.3, and (2) the trial court’s order was not a warrant.1 The State argues

that the trial court’s order was either a warrant or the functional equivalent of a warrant, and

therefore the trial court had the authority under CrR 2.3 to order the seizure of Meza’s account.

We agree with Meza.

A.     WARRANT REQUIREMENT

       The Fourth Amendment to the United States Constitution provides that “[t]he right of the

people to be secure in their persons, houses, papers, and effects, against unreasonable searches



1
 Meza also argues that the trial court’s order violates his constitutional right to counsel because
he needs the frozen funds to pay for his defense. Because we reverse on other grounds, we do
not address this issue.



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No. 47315-1-II


and seizures, shall not be violated.” Similarly, article I, section 7 of the Washington Constitution

provides that “[n]o person shall be disturbed in his private affairs, or his home invaded, without

authority of law.” These provisions generally prohibit warrantless searches and seizures unless

one of the narrow exceptions to the warrant requirement applies. State v. Garvin, 166 Wn.2d

242, 249, 207 P.3d 1266 (2009).

          A person’s banking records fall within the constitutional protection of private affairs

under article I, section 7. State v. Miles, 160 Wn.2d 236, 244-47, 156 P.3d 864 (2007); see also

State v. McCray, 15 Wn. App. 810, 814, 551 P.2d 1376 (1976) (holding that both the federal and

state constitutions protect a person’s bank account against unwarranted searches and seizures). 2

Although no Washington case has addressed whether funds in a bank account can be seized

without a warrant, it defies reason to extend constitutional protection to bank account records but

not to the funds reflected in those records. The seizure of funds is as much a threat to security in

a person’s effects and a disturbance of a person’s private affairs as the seizure of the records

regarding those funds. Therefore, we hold that funds in a bank account cannot be seized without

a valid warrant.3

          The Fourth Amendment sets forth the constitutional requirements of a warrant: “[N]o

Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or things to be seized.” U.S. CONST. amend.

IV.


2
 In Peters v. Sjoholm, the Supreme Court refrained from deciding whether the Fourth
Amendment applied to bank accounts and deposits. 95 Wn.2d 871, 877, 631 P.2d 937 (1981).
However, that case involved federal tax liens and is not applicable here.
3
    The State does not contend that an exception to the warrant requirement applies here.


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No. 47315-1-II


         CrR 2.3 outlines the requirements of a valid search warrant in Washington. CrR 2.3(b)

provides that “[a] warrant may be issued under this rule to search for and seize any (1) evidence

of a crime; or (2) contraband, the fruits of crime, or things otherwise criminally possessed; or

(3) weapons or other things by means of which a crime has been committed . . . ; or (4) person

for whose arrest there is probable cause, or who is unlawfully restrained.” Under CrR 2.3(c),

there must be probable cause to issue a warrant, the warrant must identify the property and

describe the place to be searched, and the warrant must be directed to and executed by a peace

officer.4

B.       NATURE OF THE TRIAL COURT’S ORDER

         The State concedes that it did not expressly request a warrant under CrR 2.3 and that the

trial court did not issue the order freezing Meza’s account under CrR 2.3. However, the State

argues that the trial court’s order is a warrant or the functional equivalent of a warrant because it

met the requirements of CrR 2.3, citing State v. Garcia-Salgado, 170 Wn.2d 176, 240 P.3d 153

(2010). We disagree.

         1.   Garcia-Salgado

         In Garcia-Salgado, the trial court ordered the defendant to provide a cheek swab for

DNA as authorized by CrR 4.7(b)(2)(vi).5 170 Wn.2d at 181-82. The Supreme Court

acknowledged that swabbing a cheek to obtain a DNA sample is a search and that such a search



4
    RCW 10.79.020 and RCW 10.79.035 contain similar requirements for search warrants.
5
  CrR 4.7(b)(2)(vi) states that a court may order, subject to constitutional limitations, a defendant
to permit the taking of samples from the defendant's blood, hair, and other materials of the
defendant's body.



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No. 47315-1-II


must be supported by a warrant unless the search fell into one of the exceptions to the warrant

requirement. Id. at 184. The court recited the constitutional requirements of a warrant set forth

in the Fourth Amendment: “(1) a neutral and detached magistrate (2) makes a determination of

probable cause based on oath or affirmation and (3) the warrant particularly describes the place

to be searched and the items to be seized.” Id. at 184-85. The court then addressed the warrant

requirement:

       Normally, a warrant in Washington State is issued under CrR 2.3, but neither the
       state constitution nor federal constitution limits warrants to only those issued
       under CrR 2.3. A court order may function as a warrant as long as it meets
       constitutional requirements.

Id. at 186 (emphasis added). Therefore, the court concluded that “the warrant

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

order.” Id.

       The court held that a search pursuant to an order issued under CrR 4.7(b)(2)(vi) is valid if

the order meets the constitutional requirements of a search warrant. Id. 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.” Id.6 The

court did not address whether a court order also must meet the requirements of CrR 2.3 to

function as a warrant.




6
 Because the search intruded into the defendant’s body, the court also required the order to meet
additional requirements regarding those searches set forth in Schmerber v. California, 384 U.S.
757, 769-70, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). Garcia- Salgado, 170 Wn.2d at 185-87.



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No. 47315-1-II


       2.   Trial Court’s Order as a Warrant

       The State argues that under Garcia-Salgado, the trial court’s order actually is a search

warrant. However, it is undisputed that the trial court did not issue its order under CrR

4.7(b)(2)(vi). And Garcia-Salgado does not support this argument. The court held that a court

order may function as a warrant and may satisfy the warrant requirements, but did not state that a

court order is a warrant. Id. at 186. Therefore, we hold that the trial court’s order was not a

search warrant.

       3.   Functional Equivalent of a Warrant

       The State also argues that under Garcia-Salgado, the trial court’s order is the functional

equivalent of a search warrant. A broad reading of Garcia-Salgado provides some support for

the State’s position. The court in Garcia-Salgado expressly stated that a court order can satisfy

the warrant requirement for a search and seizure if it meets the constitutional requirements of a

search warrant. 170 Wn.2d at 186.

       However, the court in Garcia-Salgado did not hold that any trial court order that satisfies

the warrant requirements could function as a warrant. The court allowed a trial court order to

function as a warrant because the trial court had authority independent of CrR 2.3 to issue the

order. See id. In Garcia-Salgado, the trial court’s order was issued under CrR 4.7(b)(2)(vi),

which expressly authorized the search. Id. at 181-82, 183. The court held that a trial court order

authorizing a search under CrR 4.7(b)(2)(vi) could function as a court order. Id. at 186.




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No. 47315-1-II


       We hold that the Garcia-Salgado holding is limited to cases where the trial court’s order

is authorized by law. Allowing a court order to function as a warrant when there is no

independent authority for a seizure would render CrR 2.3 meaningless. Limiting the scope of

Garcia-Salgado preserves the integrity of CrR 2.3.

       Here, the State cites no statute, court rule, or other authority allowing the seizure of a

defendant’s bank account in these circumstances.7 Therefore, the seizure was not authorized by

law. We hold that Garcia-Salgado is inapplicable and that the trial court’s order cannot be

treated as the functional equivalent of a warrant.8

       We hold that the trial court’s order requiring the credit union to freeze Meza’s account

was not a warrant and was not the functional equivalent of a warrant that satisfied the warrant

requirement under Garcia-Salgado. Accordingly, we hold that the trial court erred in ordering

the seizure of Meza’s credit union account.




7
  Under RCW 10.105.010(1), money obtained as a result of any felony is “subject to seizure and
forfeiture,” although “[n]o property may be forfeited under this section until after there has been
a superior court conviction of the owner of the property for the felony in connection with which
the property was employed, furnished, or acquired.” The State did not argue in the trial court or
on appeal that RCW 10.105.010(1) authorized the seizure here, so we do not address this statute.
8
  Because of our holding, we do not address whether the trial court’s order substantially
complied with the requirements of a search warrant under the United States and Washington
Constitutions and/or CrR 2.3. However, we note that the trial court’s order did not comply with
the requirement in CrR 2.3(c) that a warrant be directed to and executed by a peace officer.


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No. 47315-1-II


       We reverse and vacate the trial court’s order directing the Twin Star Credit Union to

freeze and hold Meza’s account.



                                                   MAXA, J.



 We concur:



BJORGEN, A.C.J.




LEE, J.




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