State Of Washington, Res. V. Keith Thomas Blair, App.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, 	]
No. 68971-1-1
Respondent,
DIVISION ONE
v. 	t
UNPUBLISHED OPINION o
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KELSEY MARIE JOHNSON, 	\ 	-c-
Defendant, 	] CD
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and 	•?,* 	— '•!
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KEITH THOMAS BLAIR, 	CD
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Appellant. 	i 	FILED: March 10,2014
Grosse, J. — When, as here, the State's witness made a single vague
reference to another investigation 	in violation of the court's order in limine to
exclude evidence of other crimes, and the defendant fails to show that there was
a substantial likelihood that this testimony affected the verdict in light of ample
other evidence of guilt, the trial court did not abuse its discretion by denying a
motion for a mistrial. 	Accordingly, we affirm.
FACTS
The State charged Keith Blair with several counts of residential burglary
involving multiple victims, one count of attempted residential burglary, two counts
of theft of a firearm, and one count of taking a motor vehicle. 	The charges arose
out of a series of burglaries that occurred in Seattle and surrounding areas in
King County between July and October of 2010.

No. 68971-1-1/2
On July 25, 2010, the home of Joseph Saldin was burglarized and his car,
a silver Porsche, was stolen. 	Also stolen were a safe, jewelry, shotgun, cigars,
and 	watches. 	A neighbor saw someone with a 	limp walk 	up a 	hill 	in the
neighborhood and then drive down the hill in the silver Porsche a short time later.
The Porsche was later found crashed and abandoned.
On August 6, 2010, the home of Pamela LaCount was burglarized. A safe
containing $30,000 was stolen, 	along with jewelry, an Xbox system, a laptop
computer, walkie talkies, a Rolex watch, and a shotgun. 	On August 31, 2010,
the home of Patrick Paveglio was burglarized. 	Tools and a lawn mower were
stolen.
On September 14, 2010, the home of Tammy Bodmer was burglarized. A
bike was stolen, along with five laptop computers, jewelry, watches, silver coins,
and 	an 	external 	hard 	drive. 	On September 15, 2010, 	the 	home 	of Jeffrey
Chrisope was burglarized. Keys, horse-themed jewelry, motorcycle riding gear, a
large television, global positioning 	system 	units, 	an Xbox system, 	computer
hardware and software, and a red car was stolen. 	Chrisope found his wife's red
car several days later, not far from the house. 	On that same day, the home of
Tony Marti was 	burglarized. 	Marti's 	bedroom windows were broken and a
kitchen window was removed.
On September 18, 2010, the home of Angela Parvanta was burglarized.
Jewelry boxes, jewelry, watches, three computers, and four martial arts swords
were stolen. 	Parvanta found a ladder propped up against the house leading to a
balcony. 	On September 23, 	2010, 	the 	home of 	Robinson 	Walden 	was

No. 68971-1-1/3
burglarized. 	Jewelry, watches, a laptop computer, headphones, and speakers
were stolen.
On September 26, 2010, there was an attempted burglary at the home of
Elizabeth Dolliver and Philip Thompson. 	Dolliver came home and found a man
with a light gray jacket and a backpack descending a ladder that was propped up
against her house. 	When she confronted him, he fled. 	Thompson chased him
on foot. 	A neighbor, Travis Testerman, saw a man walking briskly near the
Dolliver residence with a backpack. 	He saw the man cut through a neighbor's
yard, emerge without the backpack, and get picked up by someone driving a
black sedan. 	Testerman, who was an off duty Seattle police officer, followed the
car and gave the 911 operator a partial license plate number. 	Testerman then
went back and found the discarded backpack, which was later found to contain a
gray jacket, gloves, and 	small crowbar. 	Testerman 	identified 	Blair from 	a
photomontage.
On September 27, 2010, the home of Gary Rollins and Patrick Murray was
burglarized. 	Items stolen included 	a 	pistol, 	a 	laptop computer, dehydrated
camping food, a suitcase, a backpack, a coin collection, watches, and jewelry.
Rollins found his ladder leaning up against his bedroom window and the screen
had been cut out. A neighbor saw a suspicious person on the side of the home
around midnight, talking on a cellular phone, and limping toward the street with a
backpack. A black four door car drove up and the man said, "Turn off the lights."
The lights then turned off and the man loaded a backpack and suitcase into the
car.

No. 68971-1-1/4
King County Detectives Matthew Voipe and Cary Coblantz investigated
the 	burglaries. 	Voipe 	sought to 	recover some gold 	that was 	stolen 	in the
burglaries by contacting Ryan Youngberg, a person who advertised on Craigslist
as a buyer of gold. 	Youngberg set up a meeting with Voipe and Kelsey Johnson,
who was Blair's girlfriend.
On September 28, 2010, Voipe met with Johnson, who arrived in a black
Kia. 	Voipe identified himself as a detective and asked to speak with her. 	After
Johnson provided information to Voipe about the burglaries, Voipe seized the Kia
and obtained a search warrant to look for stolen property inside the car. 	The
license plate number on the car closely resembled the partial one which was
reported from the car seen at the Dolliver burglary. 	The car had been rented by
Aaron Knapp, a friend of Blair.
On October 4, 2010, Voipe searched the car and found 	various items
stolen during the burglaries of the homes of Rollins, Parvanta, and Chrisope. He
also found 	paperwork from the Employment Security Department with Blair's
name on it, a receipt from a clothing store with Blair's name on it, and a receipt
for a Travelodge motel room rented to Aaron Knapp.
On October 11, 2010, the home of James and Mary Lee was burglarized.
Passports, credit cards, social security cards, and other documents were taken
from a safe. 	Cameras, laptop computers, jewelry, and a data projector were also
stolen. 	Lee found an open can of Dr. Pepper soda on a dresser and a tool that
did not belong to her family on the floor next to the safe. 	DNA (deoxyribonucleic
acid) recovered from the soda can matched Blair's DNA profile.

No. 68971-1-1/5
On 	October 	21, 	2010, 	based 	on 	information 	he 	received 	from 	a
Snohomish County detective, Voipe went to an Everett motel where he hoped to
contact Johnson and Blair. 	Johnson and Blair arrived at the motel in a Mercedes
that belonged to Johnson. 	Voipe obtained a search warrant for the Mercedes
and searched the car. 	He found coins, dehydrated food, jewelry, and other items
stolen in the burglaries. 	He also found a receipt for payment on a storage unit in
Lynnwood. 	Voipe arrested Blair and Johnson.
On November 2 or 3, 2010, Voipe investigated the Lynnwood storage unit
but found 	it mostly empty except for a 	boat motor, a 	black 	bag, 	and some
speakers. 	Voipe was then contacted by Johnson, who offered to disclose what
she knew about the burglaries. Johnson told him she had been to the Lynnwood
storage unit with Blair and had seen much of the stolen property in that unit. 	She
also told him that the property had been moved to a different storage unit in
Monroe, which 	had 	been 	rented 	by 	Blair's wife 	Rachel 	Dunham. 	Volpe's
investigation corroborated this information. 	On November 5, Voipe obtained a
search warrant for the Monroe unit and after searching its contents, found a large
quantity of stolen property.
Johnson continued to contact Voipe and 	provide information about the
burglaries. 	She 	also 	showed 	Voipe 	and 	Coblantz 	the 	houses 	that 	Blair
burglarized 	and 	gave 	them 	specific 	information 	about 	the 	crimes 	that
corroborated the victims' reports. 	Johnson agreed to testify against Blair and
plead guilty to two counts of second degree possession of stolen property in
exchange for the State's dismissal of the counts of first degree trafficking in

No. 68971-1-1/6
stolen property and first degree possession of stolen property with which she was
originally charged.
The 	State 	proceeded 	to 	trial on 	Blair's 	case 	on 	several 	counts 	of
residential burglary, two counts of theft of a firearm, and one count of taking a
motor vehicle. 	An additional 	count of money 	laundering 	was 	severed 	and
prosecuted in a separate trial. The trial court ruled in limine to exclude evidence
relating to 	other 	criminal activity for which 	Blair was 	being 	investigated 	or
charged. 	Blair also moved to suppress evidence of calls he made from the jail to
his wife about the 	stolen 	property. 	In these calls, 	he asked 	her where the
property was being kept and to sell it. The trial court denied the motion.
At trial, Youngberg testified that he bought gold from Blair "[bjefore this
whole thing happened when [he] was called into questioning," and that he was
first contacted about Blair by the Bellevue Police Department. 	Blair moved for a
mistrial, arguing that this testimony violated the motion in limine. 	The trial court
denied the motion.
Johnson testified that she met Blair in August 2010. 	Blair was driving a
silver Porsche, which she heard was stolen and was later crashed by his friend
and abandoned. 	Johnson testified that Blair had an injured foot and sometimes
walked with a limp. 	She said he had paid off her traffic tickets and paid to help
her regain possession of her car. As a result and because she liked him, she felt
"obligated" to help Blair by driving him to and from the houses he burglarized.
She then testified about each of the burglaries with which Blair was charged.

No. 68971-1-1/7
The jury acquitted Blair of one count of theft of a firearm and found him
guilty of the lesser included offense of first degree criminal trespass on one of the
counts of residential burglary. 	The jury found 	him guilty as charged on the
remaining 	counts. 	The trial court 	imposed 	an 	exceptional sentence of 186
months based on the "free crimes" aggravator. 	Blair appeals.
ANALYSIS
1. 	Motion for Mistrial
Blair moved in limine to exclude evidence of other crimes that had been
prosecuted in a different King County case or that were pending in Snohomish
County. 	The State responded that it was not seeking to admit any ER 404(b)
evidence but did note that it would be calling Youngberg, who was also a witness
in the prior King County case. As the prosecutor explained:
The only thing that - as I'm hearing counsel talk about - 	is one of
the witnesses the State does intend to call is Ryan Youngberg, who
is somebody that posted 	on Craigslist -- excuse me, he bought
some gold from Kelsey Johnson. And the only reason -
Defense counsel then interrupted and stated, "They can introduce that. 	That's
not part of this other case." The prosecutor continued, stating:
I know that he was also a witness in that case. And so there might
be some cross-over in that sense, but I will not be talking about any
specifics at all about any of the other burglaries either pending in
Snohomish County or already charged here. I'm only limiting the
defendant to these counts.
The trial court granted the motion.
At trial, 	Youngberg testified that 	he 	bought gold and 	advertised 	on
Craiglist. 	He testified that he "ran into a situation" that made him realize he
needed to be checking identifications (IDs) and writing receipts when dealing with

No. 68971-1-1/8
sellers. 	When the prosecutor asked what that situation was, he responded, "It
was when the Keith Blair incident happened. 	I don't know the exact date." 	The
prosecutor then asked when he learned he needed to take these precautions and
engaged in the following exchange occured:
A. 	Oh, from the time that I brought in - 	was brought in for
questioning, I learned from there on I needed to be taking IDs and
writing receipts.
Q. 	Did you buy gold from Keith Blair then?
A. 	Before, yes. 	Before this whole thing happened when I was
called in for questioning, yes, I did.
Youngberg then identified Blair in court and the prosecutor continued:
Q. 	So when you talk about that you were questioned, is that
when 	you 	came 	in contact with Detective Voipe from the 	King
County Sheriffs Office?
A. 	It was the Bellevue Police Department was the first time that
I was contacted.
Q. 	All right. I want to focus on Detective Voipe --
A. 	On who?
Q. 	Detective Voipe.
Defense counsel then called for a sidebar.
Blair moved for a mistrial, arguing that Youngberg's testimony violated the
court's ruling in limine. 	Blair asserted that when Youngberg testified about an
investigation by the Bellevue Police Department involving buying gold from Blair,
he was referring to the other King County case that was already tried and subject
to the court's 	ruling in limine. 	Youngberg testified at that trial, which was a
trafficking charge involving Blair's illegal sale of gold to Youngberg.
The trial court denied the mistrial motion, stating:
It is - 	I don't think there is any question. 	It is prejudicial. 	The only
question is whether it is so prejudicial that the defendant won't be
able to have a fair trial with these particular jurors.
It is just one question. 	Admittedly it wasn't blurted out by the
8

No. 68971-1-1/9
witness. 	It was actually asked by the prosecutor. That's a whole
other issue.
There is no curative instruction. I agree. I don't think there is
a curative instruction that we can give without calling attention to
the whole issue. The real question is how serious it is. I guess I'm
debating that.
On 	the one hand, 	I think 	it is egregious because it is in
violation of the motion in limine and talks about another case. I
don't think the jurors are going to be fooled for one minute thinking
it was a legitimate business deal, the defendant selling gold to Mr.
Youngberg.
On the other hand, as the State has pointed out, there is,
apparently, some jail tapes where the defendant is talking to his
wife about gold and telling his wife to sell gold. 	And the defendant's
girlfriend, who 	he 	has 	been 	living 	with, 	is 	selling 	gold 	to 	Mr.
Youngberg.
So I don't know if it is really that much of a leap for the jurors
to believe that the defendant was involved in selling gold. 	I'm not
sure 	that 	they 	are 	savvy 	enough 	to 	figure 	out 	which 	police
department 	- 	which 	police 	officers 	worked 	at 	King 	County,
Bellevue, Seattle, whatever.
I'm 	going 	to 	deny 	the 	motion 	for 	mistrial, 	somewhat
reluctantly.
Blair contends that a mistrial was warranted because the violation of the
motion in limine amounted to prosecutorial misconduct and was also a serious
trial irregularity. 	We disagree. 	A trial court will a grant a mistrial "'only when the
defendant has been so prejudiced that nothing short of a new trial can insure that
the defendant will be tried fairly.'"1 	Because the trial judge is in the best position
to determine the impact of a potentially prejudicial remark, we review a trial
court's decision to grant or deny a mistrial for an abuse of discretion.2
To prevail on a claim of prosecutorial misconduct, the defendant must
show "'that the prosecutor's conduct was both improper and prejudicial in the
1 State v. Rodriguez. 146 Wn.2d 260, 270, 45 P.3d 541 (2002) (quoting State v.
Kwan Fai Mak, 105 Wn.2d 692, 701, 718 P.2d 407 (1986)).
2 State v. Escalona. 49 Wn. App. 251, 254-55, 742 P.2d 190 (1987).

No. 68971-1-1/10
context of the entire record 	and 	the circumstances at 	trial.'"3 	Prosecutorial
misconduct 	is 	prejudicial 	when 	there 	is 	a 	substantial 	likelihood 	that 	the
misconduct affected the jury's verdict.4 	The State does not appear to contend
that the prosecutor's conduct was proper, as the briefing focuses only on the
prejudice prong of the analysis. 	Indeed, as the trial court concluded, by eliciting
testimony that referred to charges that were within the scope of the court's order
in limine, the prosecutor's conduct was improper. 	But viewed in context of the
entire record, Blair fails to show that this testimony was so prejudicial that there
was a substantial likelihood it affected the jury's verdict.
First, while a reasonable inference from this testimony is that Blair was
involved in selling 	stolen 	gold, the 	testimony 	itself was 	vague 	and 	did not
specifically refer to the other charges. 	Youngberg's reference to the Bellevue
Police Department was preceded by his reference to "the Keith Blair incident,"
which everyone understood was the charged conduct in this case. 	Thus, the
jurors could have 	reasonably 	inferred that he was talking about the current
charges. 	Additionally, as the State points out, the charged crimes occurred in
several 	different 	municipalities 	throughout 	King 	County, 	including 	Seattle,
Shoreline, Lake Forest Park, Medina, Kirkland, Bothell, and 	Kenmore, and the
detectives testified about contracts the 	King County Sheriff's Office had with
some of the municipalities to provide law enforcement services. 	Thus, as the trial
court 	concluded, 	the 	jury could 	have 	reasonably 	inferred 	that 	there 	were
3 State v. Thoraerson. 172 Wn.2d 438, 442-43, 258 P.3d 43 (2011) 	(internal
quotation marks omitted) (quoting State v. Maqers, 164 Wn.2d 174, 191, 189
P.3d 126 (2008)).
4 Thorqerson. 172 Wn.2d at 442-43.
10

No. 68971-1-1/11
connections 	between 	the 	different 	law 	enforcement 	agencies 	and 	that 	the
investigation by the Bellevue Police Department was part of the current case.
Additionally, unlike the cases cited by Blair where the admission of prior
bad acts may have led jurors to convict based on propensity given the lack of
other credible evidence,5 here, it is unlikely that this single vague reference to a
Bellevue 	investigation 	would 	affect 	the 	verdict, 	given 	the 	additional 	ample
evidence 	of guilt. 	The 	State's 	case 	was 	based 	on 	eyewitness 	testimony.
Johnson gave details that were corroborated by the victims and other witnesses,
witnesses identified Blair and the vehicles he used, and victims identified stolen
property that was found in those vehicles. 	Stolen property was also found in the
motel room Blair occupied and in the storage unit his wife rented; Blair's DNA
was found 	at one scene, and Blair called his wife from jail about the stolen
property. 	Blair fails to establish that the prosecutor's conduct was so prejudicial
to warrant reversal.
Nor can he establish that Youngberg's testimony amounts to a serious trial
irregularity requiring a mistrial. 	"An irregularity in trial proceedings is grounds for
reversal when it is so prejudicial that it deprives the defendant of a fair trial."6 	To
determine whether a 	trial irregularity deprived 	a 	defendant of a 	fair trial, a
reviewing 	court considers the following 	factors: 	"(1) 	the seriousness of the
irregularity, 	(2) whether the 	statement 	in 	question 	was 	cumulative of other
evidence properly admitted, and (3) whether the irregularity could be cured by an
instruction to disregard the remark, an instruction which a jury is presumed to
5 See Escalona, 49 Wn. App. at 254-55.
6 State v. Condon. 72 Wn. App. 638, 647, 865 P.2d 521 (1993).
11

No. 68971-1-1/12
follow."7 	We 	review 	claims 	of prejudice "against the 	backdrop 	of all 	the
evidence."8
While 	a 	violation 	of an 	order 	in 	limine 	is 	considered 	a 	serious trial
irregularity, not all violations of orders in limine have been held to be so serious
as to deprive the defendant of a fair trial.9 	In Condon, the State's witness twice
testified that the defendant had been in jail despite an order in limine excluding
such evidence, but the court held that while the remarks had the potential for
prejudice, they were not so serious to warrant a mistrial.10 	The court noted that
the reference to being in jail was ambiguous and did not necessarily indicate a
propensity to commit the crime charged, nor did it necessarily mean that the
defendant had 	been convicted 	of a 	crime.11 	The 	court also 	noted 	that the
curative instruction alleviated any resulting prejudice, and that unlike in Escalona.
it was not a "close case," as the evidence against Condon was strong.12
Viewed 	in 	context 	and 	against 	the 	backdrop 	of 	all 	the 	evidence,
Youngberg's remark was likewise not so serious as to deprive Blair of a fair trial.
While no curative instruction was given (although it was offered), as discussed
above, the remark was sufficiently vague about which incident he was describing.
At most, the jury could infer he was involved in selling stolen gold, but this was
not the crime with which he was charged in this case. 	Thus, as in Condon, the
7 Escalona. 49 Wn. App. at 254.
8 Escalona. 49 Wn. App. at 254.
9 See State v. Thompson. 90 Wn. App. 41, 46-47, 950 P.2d 977 (1998) (remark
"was sufficiently serious because it violated 	a motion 	in 	limine," but "not so
egregious as to deny ... a fair trial"); Condon. 72 Wn. App. at 649-50.
10 72 Wn. App. 638, 648-50, 865 P.2d 521 (1994).
11 Condon. 72 Wn. App. at 649.
12 Condon. 72 Wn. App. at 650, n.2.
12

No. 68971-1-1/13
improper remark was ambiguous enough that it did not necessarily suggest a
propensity to commit the crime charged. 	Additionally, as discussed above, this
was not a "close case," as in Escalona. given the additional amount of credible
evidence of guilt.
Blair's reliance on State v. Trickier13 is misplaced. 	That case did 	not
involve a 	motion for a 	mistrial or a 	violation of an order in limine to exclude
prejudicial evidence. 	Rather, 	this was 	a 	reversal 	of the 	trial court's 	ruling
admitting 	evidence 	of 	other 	pieces 	of 	stolen 	property 	in the 	defendant's
possession when the defendant was only charged with possession of a stolen
credit card. 	Unable to discern whether the trial court balanced the probative
value against its prejudicial impact, the court held that the evidence was more
prejudicial than probative because it allowed the jury to consider evidence of the
defendant's possession of "a plethora of other allegedly stolen items" as the
State's proof that he must have also known the credit card was stolen and was
therefore impermissible propensity evidence.14 	But unlike in Trickier, where the
trial court failed to consider the obvious prejudicial impact of evidence that the
defendant possessed several stolen items for which he was not charged, here,
the trial court considered the prejudicial effect of an isolated vague reference to
Blair's involvement in other possible criminal activity that was not the same crime
with which he was charged in the current case. 	As discussed above, the trial
court did not abuse its discretion in determining that it was not so prejudicial as to
deprive Blair of a fair trial.
13 106 Wn. App. 727, 25 P.3d 445 (2001).
14 Trickier. 106 Wn. App. at 734.
13

No. 68971-1-1/14
2. 	Validity of Search Warrant
Blair challenges the validity of the search warrant for the Monroe storage
unit, 	contending 	that 	the 	affidavit 	in support of the 	search 	warrant 	did not
establish "timely probable 	cause" to search the 	unit. 	Blair asserts that the
information that contraband would be found in the place to be searched was stale
because his wife rented the Monroe unit on September 13, 2010, but the warrant
for it was not presented and executed until November 5, 2010. We disagree.
Probable cause for a search warrant must be timely.15 	"The facts set forth
in the affidavit must support the conclusion that the evidence is probably at the
premises to be searched at the time the warrant is issued."16 	A reviewing court
evaluates an affidavit "in a commonsense manner, rather than hypertechnically,
and 	any 	doubts 	are 	resolved 	in 	favor 	of the 	warrant."17 	Our courts 	have
recognized 	that 	"some 	time 	passes 	between 	the 	officer's 	or 	informant's
observations of criminal activity and the presentation of the 	affidavit to the
magistrate," but "[t]he magistrate must decide whether the passage of time is so
prolonged that it is no longer probable that a search will reveal criminal activity or
evidence, i.e., that the information is stale."18
Factors to consider in assessing staleness include "the time between the
known criminal activity and the nature and scope of the suspected activity."19
Two separate statements of time have been found to be important in determining
15 State v. Lyons. 174 Wn.2d 354, 357, 275 P.3d 314 (2012).
16 Lyons. 174 Wn.2d at 360.
17 State v. Jackson. 150 Wn.2d 251, 265, 76 P.3d 217 (2003).
18 Lyons, 174 Wn.2d at 360-61.
19 Lyons, 174 Wn.2d at 361.
14

No. 68971-1-1/15
staleness: "(1) when the affiant received the tip and 	(2) when the informant
observed 	the 	criminal 	activity."20 	A magistrate 	cannot determine 	whether
observations recited in the affidavit are stale unless the magistrate knows the
date of those 	observations.21 	But 	"[a]n 	affidavit 	lacking 	the 	timing 	of the
necessary observations might still be sufficient ifthe magistrate can infer recency
from other facts and circumstances in the affidavit."22
Here, the affidavit for the search warrant for the Monroe storage unit
states in relevant part:
On 11/3/10 at 2020 hrs Det. Grose and I went to the King County
Jail and arranged to have Johnson brought to an interview room. . .
. 	I asked her where the property was from the burglaries. She told
me that she last saw it at a storage unit in Lynnwood that was
registered 	in the name of Blair's brother's girlfriend, a name she
didn't know. She said that she last saw some valuable swords and
the rest of the coins that were stolen in the Shoreline burglary. 	She
said that there was a lot of property filling the unit in luggage that
she knew to be stolen. 	She confirmed that she saw a boat motor in
the unit. 	She thought Blair had the only key for the unit, but said
that he 	told 	Rachel 	Dunham to 	move the property after he got
arrested. 	She said that she heard Blair arguing with his wife on one
occasion because she had moved his property out of the storage
unit into another unit in Monroe. Johnson said that Dunham was
upset that 	Blair was with 	Johnson. 	Dunham told Blair that she
would tell him where the unit was if he came home to her. Johnson
said that Blair did not know where this storage unit was, but only
knew 	it was a 	small private business 	in Monroe. 	Johnson was
confident that all the property stolen in the burglaries was moved
from the Lynnwood unit to the unit in Monroe. She confirmed that
Dunham was very aware of all the crimes that Blair was committing
and that she had a methamphetamine habit so she needed money
to support it. 	Johnson 	agreed 	to show 	me the 	storage 	unit in
Lynnwood.
We all looked into the unit from the top and confirmed it was just as
20 Lyons, 174 Wn.2d at 361.
21 Lyons. 174 Wn.2d at 361.
22 Lyons. 174 Wn.2d at 361-62.
15

No. 68971-1-1/16
I saw it the previous day. Johnson confirmed that the storage unit
was mostly cleaned out.
On 11/5/10 Det. Coblantz and I checked the 5 storage facilities in
Monroe WA. The only one that we found that had a storage unit in
the name of Rachel Dunham was at Calico Discount Mini Storage,
17101 	147 ST SE, County of Snohomish, 	Monroe, 	Washington.
We spoke with employee Renee Gese and she provided the rental
agreement stating that on 9/13/10 Rachel Dunham rented unit 18.
Dunham provided her driver's license, address and Social Security
Number in order to rent the unit. Gese gave us the access code
and told us where Dunham's storage unit was. Det. Coblantz and I
located the storage unit and confirmed it is still locked and secure.
Det. Coblantz is currently at the unit maintaining the integrity of the
scene until I can apply for a warrant.
Blair contends that the 	information 	in the affidavit was stale because
several weeks passed from the time his wife rented the Monroe storage unit on
September 13, 2010, and the date of the warrant, November 5, 2010. But this is
not the correct time frame for determining staleness. 	As discussed above, the
relevant times 	are 	(1) when the 	affiant 	received the 	tip and 	(2) when the
informant observed the criminal activity.23 	Thus, the correct time frame would be
from when Johnson received and provided the information to the detectives to
when the search warrant was obtained.
The affidavit states that Johnson provided this information to detectives on
November 3, just two days before the search warrant was obtained. 	It also
states that she told the detectives that the last time she saw the stolen property
in the Lynnwood unit was after the Shoreline burglaries, stating that she saw
"some valuable swords and the rest of the coins that were stolen in the Shoreline
burglary." 	The 	affidavit 	refers 	to 	Shoreline 	burglaries 	that 	occurred 	on
23 Lyons. 174 Wn.2d at 361.
16

No. 68971-1-1/17
September 18, 2010 (victim Parvanta) and September 26, 2010 (victims Dolliver
and Thompson). 	The affidavit also refers to another Shoreline burglary that
occurred "the night before I seized the vehicle from Johnson," where "valuable
coins" were stolen. 	September 28, 2010 is listed in the affidavit as the date
Johnson's vehicle was seized.
That affidavit also states that Johnson told detectives that Blair told his
wife to move the property after he was arrested. 	The affidavit states that Blair
was arrested on October 21, 2010, and he and Johnson were booked into the
King County jail "where they have remained." 	The affidavit also states that that
the unit was last accessed on October 30 and that the detectives confirmed that
the Lynnwood unit was mostly empty, on November 3, except for a few items.
The warrant was obtained November 5, 2010. 	Thus, it was served two
days after the detectives received the information, and, at most, a week or two
after Blair asked his wife to 	move the items to the Monroe unit; 	indeed the
Lynnwood unit had been accessed just six days before the warrant was obtained
and was not completely empty just one day before.24 	Thus, the court could
reasonably infer that some of the stolen property had been moved less than a
week before the warrant was sought and was likely to be found in the Monroe
unit. 	Blair fails to show that this relatively short passage of time renders probable
cause for the warrant stale. 	Additionally, the warrant was not seeking a small
24 	While 	Blair 	asserts 	that 	the 	arrest 	referred 	to 	was 	an 	earlier 	arrest 	in
September, there was no specific reference to this arrest in the affidavit. 	Thus, a
magistrate could 	have reasonably interpreted this to refer to the October 21
arrest. 	In any event, as set forth above, additional facts in the affidavit support
the inference that items were still being moved to the Monroe storage unit as late
as October 30, just a few days before the warrant was issued.
17

No. 68971-1-1/18
number of 	items, 	but 	evidence 	of 	home 	burglaries 	committed 	over several
months that were not likely to be consumed or destroyed.
3. 	Evidence of Calls from the Jail
Blair next challenges the admission of evidence of calls he made from the
jail to 	his wife about storing, 	moving, and 	selling the 	stolen 	property. 	He
contends their admission was a violation of the privacy act, RCW 9.73.030(1),
because the calls were protected by the marital privilege. We disagree.
The 	privacy 	act 	prohibits 	intercepting 	or 	recording 	a 	private
communication 	transmitted 	by 	telephone 	unless 	all 	parties 	consent.25 	A
communication is private when the parties have a subjective expectation that it is
private, 	and that expectation is objectively reasonable.26 	Washington courts
have repeatedly held that inmates have no objectively reasonable expectation of
privacy in telephone calls from a local jail.27 	This is because inmates have
reduced expectation of privacy, further diminished by warnings that telephone
calls are recorded and may be monitored.28
In 	Modica. 	our State Supreme 	Court held that 	a 	jail inmate 	had 	no
reasonable expectation of privacy in telephone calls he made from the jail to his
grandmother when both the defendant and his grandmother knew they were
being recorded and that someone might listen to those calls.29 	The jail had a
sign posted on the wall above where the calls were made warning that calls
25 RCW 9.73.030(1).
26 State v. Christensen. 153 Wn.2d 186, 193, 102 P.3d 789 (2004).
27 State v. Hall. 168 Wn.2d 726, 729 n.1, 230 P.3d 1048 (2010); State v. Modica.
164 Wn.2d 83, 88, 186 P.3d 1062 (2008).
28 Modica. 164 Wn.2d at 88.
29164Wn.2dat88.
18

No. 68971-1-1/19
would be recorded and 	monitored, 	both parties had to listen to an automated
recording of this warning, and the parties discussed the fact that their calls were
being 	recorded.30 	The court 	concluded 	that given 	these 	facts, 	"[w]hatever
expectation of privacy they had, it was not reasonable."31
But the court did caution that "we have not held, and do not hold today,
that a conversation is not private simply because the participants know it will or
might be recorded or intercepted."32 	The court then recognized that intercepting
or recording 	telephone 	calls violates the 	privacy 	act 	except 	under narrow
circumstances and 	that the court will 	"generally presume that conversations
between two 	parties are intended to 	be private."33 	But the court ultimately
concluded that the defendant had no reasonable expectation of privacy "because
Modica was in jail, because of the need for jail security, and because Modica's
calls were not to his lawyer or otherwise privileged."34 	The court also noted that
"such facts may also be relevant to the issue of implied consent," but did not find
it necessary to reach the issue of whether the parties impliedly consented to
have their conversations recorded.35
Blair contends that because his calls to his wife were subject to the marital
privilege, 	he did 	not lack a reasonable expectation of privacy under Modica
because this was a call that was "otherwise privileged," and should therefore be
presumed 	private. 	We disagree. 	As the State argues, 	Blair has failed 	to
30 Modica. 164 Wn.2d at 88.
31 Modica. 164 Wn.2d at 88.
32 Modica. 164 Wn.2d at 88.
33 Modica. 164 Wn.2d at 89.
34 Modica. 164 Wn.2d at 89.
35 Modica. 164 Wn.2d at 89 n.1, 90.
19

No. 68971-1-1/20
establish a marital privilege because engaging in conversation in the presence of
others vitiates a 	privilege. 	The State cites case law holding 	that the marital
privilege did not apply to letters from jail to wife from husband when the husband
knew all outgoing mail was read by jail personnel.36 Similarly, no privilege should
apply to telephone calls made from jail between spouses who know the calls are
being recorded, as was the case here.
As the State further contends, because Blair and his wife consented to the
recording, they waived their spousal privilege and any violation of their privacy.
The State cites State v. Archie, which held that telephone calls from jail are not
"private 	affairs" 	protected 	by 	article 	I, 	section 	7 	of 	the 	Washington 	State
Constitution.37 	There, 	the 	court concluded 	that 	a 	jail 	inmate "expressly
consented to recording when she pressed or dialed three to continue the call
after the recorded warning" and therefore the recording did not violate article I,
section 7.38 	Similarly here, Blair and his wife consented to the recordings by
proceeding with 	the 	calls after being warned 	they would 	be 	recorded 	and
monitored.
Additionally, 	while Modica left open 	the 	issue of implied 	consent, the
opinion did note that facts such as those in Modica "may also be relevant to the
issue of implied consent."39 	The facts here are similar to those in Modica: Blair
was in jail, there was a need for jail security, and as discussed above, the calls
36 State v. Smyth. 7 Wn. App. 50, 53, 499 P.2d 63 (1972).
37 148 Wn. App. 198, 204, 199 P.3d 1005 (2009).
38 Archie. 148 Wn. App. at 204.
39164Wn.2dat89n.1.
20

No. 68971-1-1/21
were not otherwise privileged. 	Blair fails to show that the trial court erred by
admitting evidence of the jail calls.
Statement of Additional Grounds
Finally, Blair raises a number of issues in a pro se statement of additional
grounds for relief, none of which have merit. 	He asserts claims of prosecutorial
misconduct and an invalid search warrant that have already been addressed by
appellate counsel and further contends that the trial judge committed misconduct
by denying the mistrial and approving the search warrant. 	As discussed above,
these claims 	lack merit. 	Blair also contends that the detective's access to
personal information about the renter of the Monroe storage unit violated the right
to privacy, that the search warrant affidavit contained false information, that the
prosecutor committed misconduct by asking leading questions, that his attorney's
failure to challenge the search warrant deprived him of effective assistance of
counsel, and that the trial court improperly excused a juror for hardship without
counsel present.
None of these claims have merit. Blair was not the renter of the Monroe
storage unit whose alleged private information was given to police and therefore
lacks standing to assert a privacy violation. 	He also fails to support his claim of
false information in the affidavit and show that it was material and deliberately
falsified. 	Additionally, 	he fails to show the 	alleged 	prosecutorial 	misconduct
resulted in prejudice warranting reversal or that counsel's failure to raise every
challenge to the search warrant at the trial level resulted in prejudice as such
challenges may be raised for the first time on appeal. 	Finally, he fails to show
21

No. 68971-1-1/22
how he was prejudiced when the court allegedly improperly excused the juror for
hardship.
We affirm.
V35Wy^-r—^
WE CONCUR:
it £A 	e.
22