                   FILED
           COURT OF APPEALS DIV I
            STATE OF WASHINGTON
            N18111.-2 AM 11: 12



       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Personal           )       No. 76509-4-1
Restraint of                            )
                                        )       DIVISION ONE
ERIC MATTHEW HOPPER,                    )
                                        )       UNPUBLISHED OPINION
              Petitioner.               )
                                        )       FILED: July 2, 2018
       LEACH, J. — Eric Hopper collaterally challenges his 2014 conviction for

commercial sexual abuse of a minor. He claims that his trial counsel provided

ineffective assistance because his counsel did not move to suppress evidence of

his text messages. He called and sent text messages to the number listed in a

Backpage.com advertisement featuring a photograph of an unidentifiable female

with the fictitious name of "Whisper." He ultimately paid to have sex with K.H.,

the 16-year-old girl pictured in the ad.    Although he believed that he was

communicating with K.H. by text, he was actually communicating with her pimp,

Allixzander Park. Hopper asserts that Park violated the Washington privacy actl

by "intercepting" his "private communications" to K.H.

      But the totality of the circumstances show that Hopper did not have a

reasonable expectation of privacy in these text messages.       Thus, his text

messages to K.H. were not "private communications." Park did not violate the



      1 Ch. 9.73 RCW.
No. 76509-4-1 /2


act, and Hopper's trial counsel acted reasonably in not requesting suppression of

the text messages. We dismiss Hopper's petition.

                                     FACTS

      In December 2012, Hopper searched Backpage.com2 with the intent of

purchasing sex. Backpage operated an online classified advertising service. Its

users created and posted their own ads, including ads in the adult category. This

category included ads for prostitution activity, often under the guise of an adult

escort or entertainment service. The ads often featured pictures of women

identified by false names and ages, along with hourly rates.

      Hopper saw an advertisement for a woman named "Whisper," who he

later learned was K.H. The ad stated that she was 19 years old. She was

actually 16 years old. It listed a phone number that Hopper both called and

contacted by text. When he contacted the number by text, he initially believed

that he was communicating with K.H. But K.H.'s pimp, Allixzander Park, had

listed his own number on the ad and was reading and responding to Hopper's

text messages.




      2  The Department of Justice seized Backpage.com in April 2018. Press
Release, U.S. Dep't of Justice, Justice Department Leads Effort to Seize
Backpage.Com, the Internet's Leading Forum for Prostitution Ads, and Obtains
93-Count Federal Indictment (April 9, 2018), https://www.justice.gov/opa/pr/
justice-department-leads-effort-seize-backpagecom-internet-s-leading-forum-
prostitution-ads.
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No. 76509-4-1 / 3


       In December 2012, police arrested Park and, with a warrant, searched his

cell phone. K.H. told police that Hopper had paid to have sex with her and

identified him from a photograph montage. The police located Hopper's home

address from the text messages stored on Park's phone. The State charged

Hopper with commercial sexual abuse of a minor.            In March 2014, a jury

convicted Hopper as charged.        Hopper appealed his conviction. This court

affirmed the conviction in an unpublished opinion.3 Hopper now challenges his

conviction with this personal restraint petition (PRP).4

                                    ANALYSIS

       As a preliminary matter, the State asserts that this court's rejection of

Hopper's privacy act claim on the merits in his direct appeal bars Hopper from

raising this claim again in his PRP. Because our earlier opinion did not clearly

address the merits of Hopper's current claim, we do not reach this issue.

       Hopper claims that his trial counsel should have asked the trial court to

suppress his text messages to K.H., which police found stored on Park's cellular

phone. Because he does not establish that these text messages were "private

communications" under the act, he does not show that his counsel's performance

fell below an objectively reasonable standard of care. His claim fails.


      3   State v. Hopper, No. 71799-5-1 (Wash. Ct. App. June 8, 2015)
(unpublished opinion), http://www.courts.wa.gov/opinions/pdf/17995.pdf.
       4 On June 13, 2017, the clerk of this court granted the State's motion to
transfer the record from his direct appeal.
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 No. 76509-4-I /4


                                Standard of Review

       To obtain collateral relief by a PRP, a defendant must show either an error

of constitutional    magnitude that gives rise to actual         prejudice or a

nonconstitutional error that "'inherently results in a complete miscarriage of

justice.'"5 An ineffective assistance of counsel claim is a claimed constitutional

error. The Sixth Amendment to the United States Constitution and article I,

section 22 of the Washington Constitution guarantee the right to effective

assistance of counsel to help ensure a fair tria1.8

       Claims of ineffective assistance present mixed questions of law and fact,

which this court reviews de novo.7 To succeed on an ineffective assistance

claim, the defendant must show that (1) his counsel's performance fell below an

objective standard of reasonableness and (2) prejudiced him.8 If a defendant

submitting a PRP meets this burden, then he has necessarily met his burden to

show a constitutional error that caused actual prejudice.8




       5 In re Pers. Restraint of Grantham, 168 Wn.2d 204, 212, 227 P.3d 285
(2010) (quoting In re Pers. Restraint of Isadore, 151 Wn.2d 294, 298, 88 P.3d
390 (2004)).
       6 See State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011); see also
State v. Coristine, 177 Wn.2d 370, 375, 300 P.3d 400(2013).
       7 In re Pers. Restraint of Fleming, 142 Wn.2d 853, 865, 16 P.3d 610
(2001).
       8 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984).
       9 In re Pers. Restraint of Crace, 174 Wn.2d 835, 846-47, 280 P.3d 1102
(2012).
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No. 76509-4-1/ 5


       This court approaches an ineffective assistance of counsel claim with a

strong presumption that counsel provided effective representation.1° A petitioner

can "'rebut this presumption by proving that his attorney's representation was

unreasonable under prevailing professional norms and that the challenged action

was not sound strategy.'"11 This court evaluates the reasonableness of counsel's

performance from "counsel's perspective at the time of the alleged error and in

light of all the circumstances.'"12 To establish prejudice, the defendant must

show a reasonable probability that the result of the trial would have been different

without his counsel's deficient performance.13 "A reasonable probability is a

probability sufficient to undermine confidence in the outcome."14 If a reviewing

court concludes that a defendant fails to establish either prong of the test, it need

not inquire further.15

                              Washington Privacy Act

       Hopper asserts that Park violated the act by "intercepting" his text

messages to K.H., which he claims were "private communications." He contends

that because evidence deriving from information obtained in violation of the act is

inadmissible under the fruit of the poisonous tree doctrine, his trial counsel

       10 In re Pers. Restraint of Davis, 152 Wn.2d 647, 673, 101 P.3d 1 (2004).
       11 Davis, 152 Wn.2d at 673 (quoting Kimmelman v. Morrison, 477 U.S.
365, 384, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986)).
      12 Davis, 152 Wn.2d at 673(quoting Kimmelman, 477 U.S. at 384).
      13 Strickland, 466 U.S. at 694.
      14 Strickland, 466 U.S. at 694.
      15 State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563(1996).
                                          -5-
No. 76509-4-1/6


performed deficiently when his counsel failed to move to suppress the relevant

text messages that police found stored on Park's phone. Because we conclude

that Hopper's text messages to K.H. are not "private communications," Park did

not violate the act. This decision resolves this case. So we do not address

Hopper's remaining arguments.

       A privacy act violation occurs when "(1) a private communication

transmitted by a device. . . was(2) intercepted or recorded by use of(3) a device

designed to record and/or transmit (4) without the consent of all parties to the

private communication."16 Hopper claims that his text messages to K.H. were

"private communications" under the act because he intended them for her alone

and they concerned illegal activity. Whether communications are private is a

question of fact but may be decided as a question of law where, as here, the

parties do not dispute the facts.17

       The act does not define "private."18 Instead, Washington courts have

adopted the dictionary definition: "belonging to one's self. . . secret. . . intended

only for the persons involved (a conversation)... holding a confidential

relationship    to     something . . . a     secret     message:       a      private




       16 State v. Roden, 179 Wn.2d 893, 899, 321 P.3d 1183 (2014); see RCW
9.73.030(1)(a).
       17 Roden, 179 Wn.2d at 900.
       18 See ch. 9.73 RCW; Roden, 179 Wn.2d at 899.
                                     -6-
 No. 76509-4-I /7


communication . . . secretly: not open or in public.'"19 "IA] communication is

private (1) when parties manifest a subjective intention that it be private and (2)

where that expectation is reasonable'"29 based on "the duration and subject

matter of the communication, the location of the communication, and the

presence of potential third parties."21 Washington courts will generally presume

that each of the two parties participating in the conversation intends it to be

private.22

       Hopper likens his case to State v. Roden23 and State v. Townsend,24 in

which our Supreme Court held that the communications at issue were private. In

Roden, the court held that Roden's text messages to Lee, his drug dealer, were

private because Lee's cell phone number was a personal contact of Roden's,

Roden did not use a group texting function, and his messages concerned illicit

subject matter.25 Similarly, in Townsend, the court held that Townsend's e-mail




       19 Roden, 179 Wn.2d at 899-900 (alterations in original)(internal quotation
marks omitted) (quoting State v. Townsend, 147 Wn.2d 666, 673, 57 P.3d 255
(2002)). '
       29 State v. Modica, 164 Wn.2d 83, 88, 186 P.3d 1062 (2008) (quoting
State v. Christensen, 153 Wn.2d 186, 193, 102 P.3d 789 (2004)).
       21 Roden, 179 Wn.2d at 900.
       22 Roden, 179 Wn.2d at 900.
       23 179 Wn.2d 893,896,900,321 P.3d 1183(2014).
       24 147 Wn.2d 666,670,674,57 P.3d 255 (2002).
       25 179 Wn.2d at 896; see also State v. Kipp, 179 Wn.2d 718, 730-31, 317
P.3d 1029 (2014)(explaining that "incriminating statement[s] of a serious subject
matter is the type of conversation protected under the act").
                                        -7-
No. 76509-4-1/ 8


and ICQ26 communications to a detective who he believed was a 13-year-old girl

named Amber were private because they concerned illicit subject matter and

because he told "Amber" not to "tell anyone about us."27 The court explained,"Mt

is readily apparent from the undisputed facts that Townsend's subjective

intention was that his messages to Amber were for her eyes only."28

       By contrast, in State v. Goucher,29 Goucher called the house of his drug

dealer, Luis, while police were searching it pursuant to a warrant. A detective

answered, and Goucher proceeded to buy cocaine from the detective.30 Our

Supreme Court held that because Goucher did not try to conceal his desire to

buy drugs from a stranger, he accepted the risk that his drug purchase would not

be confidentia1.31

       Similarly, in State v. Clark,32 our Supreme Court held that defendants'

communications with a police informant who claimed that he wanted to purchase

cocaine were not private.         These conversations were "routine sales

conversations . . . between the defendants and a stranger who happened to be


        26 "ICQ [is] an Internet discussion software program that allows real-time
client-to-client communications." State v. Townsend, 105 Wn. App. 622, 625, 20
P.3d 1027(2001), aff'd, 147 Wn.2d 666, 57 P.3d 255(2002).
        27 Townsend, 147 Wn.2d at 670, 674.
        29 Townsend, 147 Wn.2d at 674.
        29 124 Wn.2d 778, 780-81, 881 P.2d 210 (1994). Goucher addressed only
whether the defendant's constitutional privacy rights were violated. Although it
did not concern the privacy act, the case is relevant by analogy.
        39 Goucher, 124 Wn.2d at 780-81.
        31 Goucher, 124 Wn.2d at 786-87.
        32 129 Wn.2d 211, 215, 916 P.2d 384 (1996).
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No. 76509-4-1 / 9


an undercover police informant," which occurred in or near the informant's car

parked on public streets, often in a "bazaar-like setting," and in front of third

parties.33 The court distinguished Roden from Clark with this explanation: "We

have found information willingly imparted to an unidentified stranger falls outside

the protection of the act, as do some conversations that take place in 'the

presence of one or more third parties' in a 'marketplace atmosphere.'"34

       Here, although Hopper had a subjective expectation of privacy in his text

messages to K.H., this expectation was unreasonable. So he does not satisfy

the objective prong of the test, and his claim fails.    Hopper testified that he

searched   Backpage.com      knowing that it contained        advertisements for

prostitution. He saw what he later learned was K.H.'s advertisement, which listed

a phone number underneath a female's picture that did not show her face.

Although the ad did not state her name, Hopper testified that the description

implied she went by "Whisper."

      He called the number with the intent of scheduling sex, and a female voice

answered. K.H. testified that she did, in fact, speak to Hopper on the phone; she

stated that individuals calling in response to the ad would call Park's phone and

Park would give her the phone to talk to them. When Hopper called, he told her

that he had seen her ad and wanted to negotiate a meeting. Hopper also sent


                        at 214-15, 228.
      33 Clark, 129 Wn.2d
      34 Roden, 179 Wn.2d at 903 (quoting Clark, 129 Wn.2d at 228).
                                     -9-
No. 76509-4-1 /10


K.H. numerous text messages before he met her in person. He stated that she

"seemed very nervous in text, but not via voice, about whether I would actually

be there or not. . .[w]hich was a little confusing to me."

       When K.H. met Hopper at his home, he recognized her as the woman with

whom he believed he had been communicating because "her shape and overall

appearance matched the ad." After they had sex, Hopper paid her $250. But

soon after she left, he received a text message asking, "[D]id you give me $250?"

At that point, he "started being very worried that she had a pimp." He stated that

after that text conversation, "[i]t was really obvious that I wasn't talking to her."

Days later, when Hopper attempted to set up another meeting with her through

text, he was "fairly certain that[he] was talking to her pimp."

       Similar to Townsend, who intended to communicate only with Amber,

Hopper intended to communicate only with the woman pictured in the

Backpage.com ad. Because Hopper called the number listed in the ad, a female

voice answered, he told her that he had seen her ad on Backpage.com, and they

discussed a time to meet, his text messages were "for her eyes only.'"35 It was

not clear to him that he was communicating by text message with Park until after

he had sex with K.H.          And consistent with Roden, the fact that his

communications with K.H. concerned illicit subject matter involving paying for sex



      35 Personal   restraint petition at 22(quoting Townsend, 147 Wn.2d at 674).
                                           -10-
   No. 76509-4-1/ 11


   suggests that he intended his text messages to be private. In light of the general

   presumption that parties intend their conversations to be private and the fact that

   K.H. was the sole intended recipient of Hopper's communications concerning

   illegal activity, he manifested a subjective intent that his text messages to K.H.

   would remain private.

          But   Hopper's subjective      expectation   of privacy     was   objectively

   unreasonable. He responded to an ad on Backpage.com, a website notorious for

  advertising prostitution activity. The ad was titled "any way you want it 19" and
                                                                             i
                                                                             ,
  featured an unidentifiable woman with a fictitious name. A reasonable Person

   would not expect that contacting a stranger by text through the phone number
                                                                              i
   listed in this advertisement would provide a legitimate opportunity for a !::1 rivate

  conversation with a known person. Even Hopper admitted that "the                icture

   wasn't a good enough picture to clearly identify a specific person."

          The facts here differ from Clark because Hopper's text messages did not

  occur in a "marketplace atmosphere" or in front of third parties.         But, as in

   Goucher, Hopper told a stranger that he was interested in illegal activity. When

   he called the number listed in the ad, a woman answered who he believed was

, the woman in the ad, but when he proceeded to send text messages to the same

  number, he could not be sure whether a man or a woman was respond ng, let
                                                                    I
  alone the woman in the ad. And, unlike Townsend, who began communicating


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No. 76509-4-1 /12


with "Amber" over e-mail and a discussion software program under pretense of

developing a social relationship, Hopper called to directly solicit sex.

       In addition, although Hopper was not certain that he was talking to a pimp

until after he had sex with K.H., the fact that K.H. "seemed very nervous in text,

but not via voice" confused him and indicated that, at a minimum, he was not

talking with and text messaging the same person. And regardless of whether

Hopper was initially aware of K.H.'s pimp, it is common knowledge that

prostitutes often have pimps. Thus, even though Hopper subjectively intended

for his text messages to K.H. to be private, his communications were not private

because this expectation was unreasonable. Park did not violate the act when

he recorded and stored Hopper's messages to K.H. on his cell phone.

                                  CONCLUSION

       We dismiss Hopper's PRP. His trial counsel did not provide ineffective

assistance by failing to move to suppress his text messages to K.H. because

those messages were not "private communications" under the privacy act.




WE CONCUR:



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