* State of Washington v. Justin Joe Ortega

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON,
Respondent,
v.
JUSTIN JOE ORTEGA,
Appellant.
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No. 39478-6-III
OPINION PUBLISHED IN PART
PENNELL, J. — Justin Ortega appeals his convictions for eight instances of sexual
and physical abuse against his girlfriend’s young daughters.1 He argues the State’s case
was tainted by evidence seized during an unconstitutional cell phone search. We reject
this claim. The search occurred pursuant to a warrant that particularly authorized seizure
of photographs documenting sexual abuse. And by using forensic technology to extract
1 To protect the privacy interests of the minor children, we refer to them by their
initials throughout this opinion. See Gen. Order 2012-1 of Division III, In re Use of
Initials or Pseudonyms for Child Victims or Child Witnesses (Wash. Ct. App. Jun. 18,
2012), https://www.courts.wa.gov/appellate_trial_courts/?fa=atc.genorders_orddisp&
ordnumber=2012_001&div=III.
FILED
JULY 11, 2024
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
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and organize the cell phone’s data, law enforcement officers were able to execute the
warrant in a way that limited the scope of information that came under their review.
We therefore affirm Mr. Ortega’s convictions.
FACTS
In October 2019, nine-year-old J.R. and her sister, eight-year-old M.R., each
disclosed—first to a teacher, then to police—that they had suffered physical and
sexual abuse at the hands of their mother’s boyfriend, Justin Ortega. The State charged
Mr. Ortega with five counts of first degree rape of a child, two counts of first degree
child molestation, and one count of third degree assault of a child.
During the police investigation, M.R. related that Mr. Ortega had recorded images
of his assaultive conduct on his cell phone. Based on this disclosure, law enforcement
believed Mr. Ortega’s cell phone probably contained evidence of the crimes with which
he was charged. The police subsequently obtained possession of the cell phone from a
family member, who voluntarily turned it over to police.
Detective Curtis Oja of the Yakima Police Department applied for a search warrant
to examine the contents of the phone. The superior court granted a warrant, authorizing
police to search Mr. Ortega’s cell phone and seize any images or videos depicting
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Mr. Ortega engaged in “sexual contact” with M.R., as well as any information identifying
the owner of the device. Clerk’s Papers (CP) at 63, 66.
Pursuant to the warrant, police searched the phone and seized 35 images, some
showing Mr. Ortega as the device’s owner (for example, selfies taken by Mr. Ortega),
some showing him engaged in sexual contact with M.R., and one showing him engaged
in sexual contact with J.R.
Mr. Ortega moved to suppress the fruits of the cell phone search. He argued that
the warrant was insufficiently particular, in violation of the state and federal constitutions.
The trial court held an evidentiary hearing on the motion and the State presented
testimony from detectives Curtis Oja and Kevin Lee.
According to the testimony, officers began the search by connecting Mr. Ortega’s
phone to an extraction device known as the “Cellebrite Touch.” 1 Rep. of Proc. (RP)
(Nov. 9, 2022) at 90. Detective Lee then ran an extraction that allowed the files on
Mr. Ortega’s phone to be organized into categories (for example, messages, images, etc.).
Once extracted, data is not visible unless someone opens the individual category folders
through Cellebrite’s physical analyzer program. See id. at 91-92. Neither Detective Lee
nor Detective Oja recalled reviewing anything besides photos and videos.
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Detective Lee was asked, “are you able to” simply type in “8-year-old girl, sexual
contact and only remove” those images “from [the phone?]” Id. at 98. Detective Lee
responded, “No. . . . It’s just not possible.” Id. He clarified that it would be possible to run
a search directing the program to extract solely images, instead of all of the phone’s data,
but such an extraction would be incomplete because it would not gather deleted images.
Detective Lee also agreed that it was technically possible to search the phone manually
for the authorized images, given that the phone had no passcode. But he explained that
“best practice dictates that hand searches occur after a forensic search is conducted, that
way there’s no chance that you would delete or change any data.” Id. at 110. Detective
Oja explained that the forensic extraction process “preserves [the cell phone] in the same
format that it was at the time it was searched.” Id. at 139.
After the data extraction, Detective Lee gave Detective Oja a thumb drive
containing more than 5,000 extracted images. Detective Oja agreed that it was similar to
being given a physical photo album and having to flip through the pages to find what you
are looking for. As he explained, “Somebody has to manually go through and identify
which images . . . depict sexual contact.” Id. at 136. Detective Oja explained that after he
seized 35 images, M.R. and J.R. identified themselves in the photographs they were
shown.
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The trial court denied Mr. Ortega’s motion to suppress the images seized from his
cell phone.2 Mr. Ortega subsequently waived his right to a jury trial and his case was tried
to the bench. The court found Mr. Ortega guilty as charged. At sentencing, the court
imposed an indeterminate life sentence with a minimum of 299 months’ confinement.
As to legal financial obligations, the court found Mr. Ortega was indigent and imposed
the then-mandatory $500 crime victim penalty assessment (VPA) and $100 DNA
collection fee.
Mr. Ortega timely appeals.
ANALYSIS
Cell phone search
Mr. Ortega contends we should reverse his convictions and remand with
instructions to grant his suppression motion. He argues (1) the search warrant was
insufficiently particular, and (2) police exceeded the scope of the warrant. We discuss
each contention in turn.
2 The court granted the suppression motion in one narrow respect, ruling that it
would not consider any of the “EXIF” (exchangeable image file format) data associated
with the extracted images. 1 RP (Nov. 14, 2022) at 178. While Detective Oja had asked
for permission to seize EXIF data, the warrant itself—perhaps inadvertently—did not
include EXIF data in its authorization. EXIF data is metadata that can help precisely
identify when an image was captured.
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1. Whether the warrant failed the particularity requirement
“Both the Fourth Amendment [to the United States Constitution] and article I,
section 7 [of the Washington Constitution] require that a search warrant describe with
particularity the place to be searched and the persons or things to be seized.” 3 See State v.
Vance, 9 Wn. App. 2d 357, 363, 444 P.3d 1214 (2019). The particularity requirement,
which aims to prevent generalized rummaging through a suspect’s private affairs, “is of
heightened importance in the cell phone context,” given the vast amount of sensitive data
contained on the average user’s smartphone device. State v. Fairley, 12 Wn. App. 2d 315,
320, 457 P.3d 1150 (2020). Whether a warrant satisfies the particularity requirement is a
constitutional issue that is reviewed de novo. Id. at 321.
The purposes of the particularity requirement are to prevent a general search, limit
the discretion of executing officers, and ensure that items to be searched or seized are
supported by probable cause. State v. Perrone, 119 Wn.2d 538, 545, 834 P.2d 611 (1992).
When reviewing whether a warrant satisfies the requirement, we do not take a
3 Mr. Ortega emphasizes that our state constitution “provides for broader privacy
protections than” its federal counterpart. State v. Z.U.E., 183 Wn.2d 610, 618, 352 P.3d
796 (2015). This is certainly true and explains why the state constitution is less forgiving
of warrantless searches. See, e.g., State v. Hendrickson, 129 Wn.2d 61, 69 n.1, 917 P.3d
563 (1996). However, Mr. Ortega cites no authority indicating that our state constitution
imposes a stricter particularity requirement.
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hypertechnical approach. Id. at 549. Rather, we interpret a warrant “in a commonsense,
practical manner.” Id.
The warrant here easily satisfies the particularity requirement. It directed officers
to “search” the phone and “seize . . . images and/or videos depicting Justin Ortega
engaged in sexual contact with” an eight-year-old, along with “information identifying
the owner of the device.” 4 CP at 66. This did not permit a general rummaging; it was akin
to a warrant allowing a search of a residence for controlled substances and indicia of
ownership. The terms of the warrant were sufficiently descriptive to direct the actions of
law enforcement; the warrant only allowed for a search of areas of the phone where the
officer might find photos or indicia of ownership. And, as set forth in the warrant, there
was probable cause 5 to believe that images of Mr. Ortega assaulting M.R. would be found
on the phone and that the phone belonged to Mr. Ortega.
4 While the warrant here only authorized seizure of images of Mr. Ortega engaged
in sexual contact with M.R., the image of Mr. Ortega engaged in sexual contact with J.R.
was properly seized under the plain view doctrine. See State v. Temple, 170 Wn. App.
156, 164, 285 P.3d 149 (2012) (“Under the plain view doctrine, an officer must (1) have a
prior justification for the intrusion, (2) inadvertently discover the incriminating evidence,
and (3) immediately recognize the item as contraband.”). Law enforcement had a prior
justification for the intrusion into the photo album on Mr. Ortega’s phone: the warrant.
And while executing that warrant, law enforcement inadvertently discovered an image of
Mr. Ortega engaged in sexual contact with J.R., a nine-year-old, which any reasonable
observer would immediately recognize as contraband.
5 Mr. Ortega has never challenged the existence of probable cause.
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No. 39478-6-III
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Mr. Ortega complains that the warrant authorized a wholesale data dump
of information on his phone. But this issue goes to how the warrant was executed.
The warrant itself did not mention broad swaths of cell phone data. Cf. State v. McKee,
3 Wn. App. 2d 11, 19, 29, 413 P.3d 1049 (2018) (holding warrant specifying broad
categories of cell phone data not connected to charged crimes was overbroad), rev’d on
other grounds, 193 Wn.2d 271, 438 P.3d 528 (2019). Nor did the warrant specify a
forensic method for how officers were to search Mr. Ortega’s phone. Thus, Mr. Ortega’s
complaints about the data dump go not to the issue of particularity, but to the officers’
execution of the warrant.6
2. Whether officers exceeded the scope of the warrant
Execution of a search warrant must be strictly tied to “the scope of the warrant.”
State v. Witkowski, 3 Wn. App. 2d 318, 325, 415 P.3d 639 (2018). Our review of whether
a particular search has met this constitutional mandate is de novo. Id. at 324.
“‘[A] computer search may be as extensive as reasonably required to locate items
described in the warrant’ based on probable cause.” United States v. Burgess, 576 F.3d
6 Arguably, Mr. Ortega did not preserve an objection to the execution of the
warrant. During the suppression hearing in superior court, his only complaint pertained to
whether the warrant particularly described items to be seized. Nevertheless, the State does
not claim this issue has been waived.
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1078, 1092 (10th Cir. 2009) (quoting United States v. Grimmett, 439 F.3d 1263, 1270
(10th Cir. 2006)). The scope of a search can be limited by identifying targeted content.
Id. at 1093. When a warrant authorizes a search for a particular item, the scope of the
search “‘generally extends to the entire area in which the object of the search may be
found.’” Witkowski, 3 Wn. App. 2d at 325-26 (quoting United States v. Ross, 456 U.S.
798, 820-21, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982)).
The record here shows detectives Oja and Lee properly limited the scope of their
search to the terms of the warrant. The images of M.R. could have been located almost
anywhere on Mr. Ortega’s cell phone—not only in a photos application, but also in
e-mails and text messages. Had the detectives chosen to search Mr. Ortega’s phone
manually, they likely would have needed to sort through data other than images in
order to find the targets of their search. And they would have risked jeopardizing the
evidentiary integrity of the phone. See United States v. Ganias, 824 F.3d 199, 215
(2d Cir. 2016) (recognizing that, when dealing with digital evidence, “[p]reservation
of the original medium or a complete mirror may . . . be necessary in order to safeguard
the integrity of evidence” and “afford criminal defendants access to that medium or its
forensic copy”); State v. Grenning, 169 Wn.2d 47, 60-61, 234 P.3d 169 (2010) (holding
defendant was entitled to “mirror image copy” of the data on his hard drives seized by
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No. 39478-6-III
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law enforcement). By instead using forensic software, the detectives were able to
organize the data from Mr. Ortega’s phone without first viewing the phone’s contents.
This enabled them to limit their search to data labeled as photos and videos, thus
restricting the scope of the search to areas where the target of the search could be found.
Mr. Ortega laments that, due to the extraction method used by police, “the entire
contents of the phone” were “available” to police. Appellant’s Br. at 7-8. But it is unclear
how the mere availability of the data constituted an intrusion into Mr. Ortega’s “private
affairs” absent any indication that law enforcement in fact looked at data besides that
which they were authorized to examine. WASH . CONST. art. I, § 7. The phone was not
password protected; its contents were therefore “available” to law enforcement the
moment it came into their possession. Appellant’s Br. at 7. But a seizure is not the same
as a search. See Fairley, 12 Wn. App. 2d at 321-22. Here, the extraction process did not,
by itself, enable law enforcement to view the entire contents of Mr. Ortega’s phone.
It was still necessary to open up the individual data-type folders created through the
extraction process. By using forensic software to extract and organize data from
Mr. Ortega’s phone, the detectives were able to minimize their review of the phone
contents and tailor their search to the evidence authorized by the warrant. This did not
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No. 39478-6-III
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violate Mr. Ortega’s constitutional rights. See United States v. Mann, 592 F.3d 779, 784
(7th Cir. 2010).
Mr. Ortega’s convictions are affirmed.
The panel having determined that only the foregoing portion of this opinion
will be printed in the Washington Appellate Reports, and that the remainder having no
precedential value, shall be filed for public record pursuant to RCW 2.06.040, it is so
ordered.
VPA and DNA collection fee
Mr. Ortega contends, and the State concedes, that the VPA should be struck on
remand. The legislature amended the VPA statute by passing Engrossed Substitute House
Bill 1169, with the amendments taking effect July 1, 2023. See State v. Ellis, 27 Wn. App.
2d 1, 16, 530 P.3d 1048 (2023) (citing L AWS OF 2023, ch. 449, § 1). The statute now
prohibits courts from imposing the VPA on defendants, like Mr. Ortega, who have been
found to be indigent, and requires courts to waive any VPA imposed before the effective
date, on the offender’s motion, if the offender is unable to pay. See RCW 7.68.035(4),
(5)(b). We therefore accept the State’s concession and remand with instructions to strike
the VPA from Mr. Ortega’s judgment and sentence.
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Mr. Ortega also contends, and the State concedes, that the DNA collection fee
should be struck on remand, pursuant to legislative changes. We also accept this
concession and remand with instructions to strike the DNA collection fee. See Ellis,
27 Wn. App. 2d at 17 (citing L AWS OF 2023, ch. 449, § 4).
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
Mr. Ortega filed a pro se statement of additional grounds for review (SAG).
See RAP 10.10(a). Mr. Ortega’s SAG raises 14 points. Each is addressed in turn.
First, Mr. Ortega writes that “[o]nly M.R. stated any phone activity happening. . . .
J.R. never once said that there was any phone activity involved.” SAG at 2. This “does
not inform the court of the nature and occurrence of ” an “alleged error[].” RAP 10.10(c).
Thus, we “will not consider” it. Id. To the extent Mr. Ortega is complaining that the
warrant did not authorize seizure of any images of J.R., the image of J.R. was discovered
in plain view while searching for images of M.R., and it obviously depicted an unlawful
act. Its seizure was therefore lawful. See State v. Temple, 170 Wn. App. 156, 164, 285
P.3d 149 (2012).
Second, Mr. Ortega asks us to upend the trial court’s conclusion that the victims
were credible, based on a comment M.R. made during her cross-examination. But we may
not disturb a trial court’s credibility determinations. See, e.g., State v. Truong, 168 Wn.
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App. 529, 534, 277 P.3d 74 (2012); see also CP at 141 (trial court’s finding that the
children’s “detailed descriptions” of their abuse were “highly credible”).
Third, Mr. Ortega complains that police interviewed J.R. twice and that only
the second interview was admitted into evidence. This does not “allege[]” an “error.”
RAP 10.10(c).
Fourth, Mr. Ortega complains that “[t]he warrant was not clear in particulars.”
SAG at 3. This issue was adequately briefed by counsel, so need not be considered
further. See RAP 10.10(a); State v. Thompson, 169 Wn. App. 436, 492-93, 290 P.3d 996
(2012).
Fifth, Mr. Ortega contends the victims’ aunt found information about the case
posted on the Internet. This does not “allege[]” an “error.” RAP 10.10(c).
Sixth, Mr. Ortega alleges his trial counsel and trial counsel’s paralegal “told” him
he “could not read/go over . . . discovery.” SAG at 4. Assuming this contention is that
trial counsel performed ineffectively, it involves a factual allegation outside the record
on review. Therefore, Mr. Ortega’s remedy, if any, is to seek relief by collateral attack.
See State v. McFarland, 127 Wn.2d 322, 338 n.5, 899 P.2d 1251 (1995).
Seventh, Mr. Ortega complains that his trial counsel never hired a technician
“to look into the phone.” SAG at 4. Again, assuming Mr. Ortega is making a claim of
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ineffective assistance, such claim involves matters outside this record, so it cannot be
resolved on direct appeal. See McFarland, 127 Wn.2d at 338 n.5.
Eighth, Mr. Ortega complains that the trial court repeatedly continued trial over
his objections. The record indicates trial was continued five times over Mr. Ortega’s
objections. See CP at 15-17, 21, 114. “In both criminal and civil cases, the decision
to grant or deny a motion for a continuance rests within the sound discretion of the trial
court.” State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004). Thus, we review
a continuance for abuse of discretion. See id. A trial court abuses its discretion where its
decision was based on untenable grounds or reasons or was otherwise manifestly
unreasonable. See Willapa Trading Co. v. Muscanto, Inc., 45 Wn. App. 779, 785, 727
P.2d 687 (1986). Here, each time the trial court continued trial, it had a tenable reason for
doing so: On three occasions, Mr. Ortega’s counsel plausibly explained he needed more
time to prepare in order to render effective assistance; on one occasion, the defense and
the State plausibly agreed they needed additional time to prepare because plea
negotiations had recently fallen through; and on the final occasion, the trial prosecutor
tested positive for COVID-19 mere days before the scheduled start of trial. See 1 RP
(Jul. 23, 2021) at 5-6; 1 RP (Jan. 14, 2022) at 9; 1 RP (May 11, 2022) at 12-15; 1 RP
(Jul. 29, 2022) at 16, 21; 1 RP (Oct. 17, 2022) at 28. Given these tenable reasons for
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continuances, Mr. Ortega has not identified any abuse of discretion. Nor does he
articulate any argument that a constitutional violation flowed from the continuances.
Ninth, Mr. Ortega complains that M.R. and J.R. were not medically examined.
But medical evidence was not required. See RCW 9A.44.020(1).
Tenth, Mr. Ortega baldly claims “[t]he photos admitted as evidence do not show”
him “performing any sexual acts.” SAG at 5. But the trial court looked at the images,
was able to see Mr. Ortega in court, and was persuaded the man in the images was him.
We may not disagree with a trial court’s assessment of the persuasiveness of evidence.
See Truong, 168 Wn. App. at 534.
Eleventh, Mr. Ortega claims the children had “past sexual encounters” that his
attorney “failed to address.” SAG at 5. This does not “allege[]” an “error.” RAP 10.10(c).
Twelfth, Mr. Ortega complains that the final trial continuance was expressly
granted so the trial prosecutor could recover from COVID-19, but that “the prosecutor
added that he needed time to interview Det[ective] Lee,” indicating that, in addition to
their illness, the trial prosecutor actually was not ready. SAG at 5. Mr. Ortega misreads
the record. The continuance was requested and granted solely on the basis of the
prosecutor’s illness. Detective Lee became relevant because his scheduling conflicts
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made setting a new trial date challenging, not because the prosecutor still needed to
conduct an interview with him.
Thirteenth, Mr. Ortega baldly asserts the trial prosecutor has been charged with
various crimes. This contention both relies on facts outside the record on review and
fails to allege an error. We must decline to consider it. See RAP 10.10(c); McFarland,
127 Wn.2d at 338.
Fourteenth, Mr. Ortega complains that, in summation, the prosecutor argued
Mr. Ortega must have taken the photos of himself performing sexual acts on the
children for the purposes of sexual gratification. This does not “allege[]” an “error.”
RAP 10.10(c).
CONCLUSION
Mr. Ortega’s convictions are affirmed. We remand for the limited purpose of
striking the VPA and DNA collection fee from the judgment and sentence. Resentencing
is not required.
_________________________________
Pennell, J.
WE CONCUR:
______________________________ 	_________________________________
Lawrence-Berrey, C.J. 	Staab, J.
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