State Of Washington, Respondent V. Jerdale Necoy Jackson, Appellant

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON
Respondent,
v.
JERDALE NECOY JACKSON,
Appellant.
No. 68019-6-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	March 11, 2013
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Leach, C.J. — Jerdale Jackson appeals his conviction for felony violation
of a domestic violence no-contact order. 	He argues that the police violated his
privacy rights under the state and federal constitutions when they searched the
apartment 	he 	shared 	with his 	girl 	friend, 	Michelle Valdez. 	Additionally, 	he
contends that the court violated his confrontation clause rights by admitting an
unredacted copy of the order. 	Because the no-contact order prohibited Jackson
from contacting Valdez and 	restrained 	him from visiting her home, 	Jackson's
presence at the apartment was unlawful and he lacks standing to challenge the
search. 	Because the order was not testimonial in nature, the evidence does not
implicate the confrontation clause. 	We affirm.
Background
On March 30, 2011, Federal Way police officers responded to a 911 report
of domestic violence 	at 	Michelle Valdez's 	apartment. 	They spoke with the
complainant, Valdez's 16-year-old son, D.V., outside the apartment. 	He reported

NO. 68019-6-1/2
that 	his 	stepfather, 	whom 	he 	called 	J-Ride, 	hit him 	with 	an 	extension cord
wrapped around his fist. 	D.V. described J-Ride as a thin black male wearing a
white do-rag and sweatpants. 	Officer Benjamin Tseng saw a transient mark on
D.V.'s leg. 	He believed that the incident was probably lawful parental corporal
punishment rather than abuse, but he went to the apartment to speak with D.V.'s
parents 	about the 	report. 	D.V. 	told 	officers 	that 	both 	his 	mother 	and 	his
stepfather were at home.
Valdez answered the apartment door. 	When Tseng asked if he could
come in to talk about D.V., she stepped aside and opened the door to allow him
to enter. 	She jokingly asked what D.V. had done to get in trouble. 	Tseng stated
that he needed to speak with both her and her husband. 	Valdez stated that she
was not married. 	Tseng asked if her boyfriend, or if anyone named J-Ride, was
home. 	Valdez became evasive and noncommittal and attempted to physically
block the hallway leading to the rest of her apartment.
Valdez's abrupt change in behavior, along with D.V.'s initial report that
both his parents were home, made Tseng suspicious that someone might be
hiding in the apartment. 	He conducted a protective sweep of the apartment. 	As
Tseng walked through the hallway, 	he saw Jerdale Jackson standing inside a
bedroom. 	Jackson matched D.V.'s description of the suspect. 	Tseng discovered
an outstanding warrant for Jackson's arrest and a Colorado no-contact order
restraining him from contact with Valdez. 	When confronted with the information
about the no-contact order, Jackson responded, "Colorado can't tell me who I

NO. 68019-6-1/3
can be with or not, neither can Washington, you record that and put that as my
statement." Tseng placed Jackson under arrest. Valdez did not give a statement
but told the officers that Jackson had been living in the apartment for a month.
The State charged Jackson with domestic violence felony violation of a
court order and domestic violence assault. 	It dismissed the assault charge after
D.V. recanted. The case proceeded to trial on only the no-contact order violation.
The trial court denied Jackson's motion to suppress evidence, finding that he did
not have standing to challenge the warrantless search of Valdez's apartment.
The court ruled in the alternative that the police had a basis for conducting a
warrantless 	"protective 	sweep" 	after Valdez 	became uncooperative. 	A jury
convicted 	Jackson 	as 	charged, 	and 	the 	court 	imposed 	a 	standard 	range
sentence. 	Jackson appeals.
Standard of Review
We review the denial of a motion to suppress evidence by determining
whether substantial evidence supports the 	trial 	court's findings 	of fact and
whether those findings support the trial court's conclusions of law.1 	Substantial
evidence exists if it is sufficient to persuade a fair-minded, rational person of the
truth of the matter asserted.2 We review conclusions of law de novo.3
1 State v. Ross, 106 Wn. App 876, 880, 26 P.3d 298 (2001).
2 State v. Lew, 156 Wn.2d 709, 733, 132 P.3d 1076 (2006).
3 State v. Acrev, 148 Wn.2d 738, 745, 64 P.3d 594 (2003).

NO. 68019-6-1/4
Analysis
Jackson alleges that the police conducted an unlawful warrantless search
of the apartment, violating his rights under the Fourth Amendment to the United
States Constitution. 	Jackson also argues that the court erred by refusing to
suppress evidence 	acquired 	through the 	illegal 	search 	of the 	apartment 	he
shared with Valdez. 	The State counters that Jackson had no legal right to be in
the apartment and therefore no reasonable expectation of privacy there. 	We
agree that the Colorado no-contact order prohibited Jackson's presence at the
apartment, and therefore he lacks standing to challenge the search.
The Fourth Amendment states, "The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated." 	To qualify for Fourth Amendment protection, a
criminal defendant must show that he 	has standing to challenge the claimed
invasion of privacy.4 	Standing to challenge a warrantless search "'depends not
upon a property right in the invaded place but upon whether the person who
claims the protection of the Amendment has a legitimate expectation of privacy in
the invaded place.'"5 	To determine whether a person has standing, we apply a
two-part test: 	(1) does the defendant have a subjective expectation of privacy
and (2) is society willing to recognize that expectation as reasonable?6
4 State v. Jacobs, 101 Wn. App. 80, 87, 2 P.3d 974 (2000).
5 Jacobs, 101 Wn. App. at 87 (quoting Rakas v. Illinois, 439 U.S. 128, 143,
99 S. Ct. 421, 58 L. Ed. 2d 387 (1978)).
6 Jacobs, 101 Wn. App. at 87 (quoting California v. Ciraolo, 476 U.S. 207,
211, 106 S. Ct. 1809, 90 L.Ed. 2d 210 (1986)).
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NO. 68019-6-1/5
Jackson relies on State v. Wilson.7 	The State charged Wilson with first
degree burglary and assault after he broke down the door to the apartment that
he shared with his girl friend, pulled her hair, and threatened to kill her with a
piece of broken wood.8 	A no-contact order prohibited Wilson from contacting her
in person, by telephone, or by intermediary, but it did not exclude him from her
home.9 	The court found that "although the acts Wilson committed inside the
residence were unlawful, 	his acts of entering and 	remaining inside were not
themselves unlawful because the no-contact order did not exclude him from the
residence he shared with [his girl friend]."10
State v. Jacobs,11 however, is more on point. 	In Jacobs, we noted that an
expectation of privacy is not reasonable if the defendant's presence at the scene
of the search is illegal. 	A domestic violence no-contact order restrained Jacobs
from having any contact with the victim. 	Despite testimony that Jacobs kept an
overnight bag at the house and stayed there regularly, the court decided that his
violation of the 	court 	order made 	his 	presence there 	illegal and 	he 	lacked
standing to challenge the legality of the search.12
Our courts have held that "[i]f a protection order is to exclude a person
from the victim's residence, it must so state."13 	Here, as in both Jacobs and
7 136 Wn. App. 596, 604, 150 P.3d 144 (2007).
8Wilson, 136 Wn. App. at 601.
9Wilson, 136 Wn. App. at 600.
10 Wilson, 136 Wn. App. at 604.
11 101 Wn. App. 80, 87, 2 P.3d 974 (2000).
12 Jacobs, 101 Wn. App. at 88.
13 State v. Sanchez, 166 Wn. App. 304, 310-11, 271 P.3d 264 (2012).
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NO. 68019-6-1/6
Wilson, the order's specificity is critical to determining whether the defendant's
expectation of privacy was "reasonable." 	Contrary to Jackson's assertion, the
no-contact order excluded him from Valdez's residence. 	In addition to prohibiting
Jackson 	from 	direct 	or 	indirect 	communication 	with 	Valdez, 	the 	order also
required him to "vacate the home of the victim(s), stay away from the home of the
victim(s), and stay away from any other location the victim(s) is/are likely to be
found." 	While the order may not have listed any specific address that Jackson
could not visit, the language is substantially broader than the order in Wilson and
clearly directs that Jackson stay away from Valdez's residence.
Jackson 	also argues that even 	if he 	lacks standing 	under the 	Fourth
Amendment, he has standing to challenge the search under article I, section 7 of
the Washington 	Constitution. 	That 	provision of the 	Washington 	Constitution
provides, 	"No 	person shall be disturbed in 	his private affairs, 	or his home
invaded, without authority of law." 	The parties dispute whether the trial court
should 	have applied a Gunwall14 analysis to determine whether the state or
federal 	constitution 	provides 	greater 	protection 	to 	Jackson, 	and 	Jackson
contends that the court erred by refusing to analyze the case under the state
constitutional 	provisions. 	Even 	assuming 	that 	the 	Gunwall 	analysis 	was
unnecessary here, our courts have determined that article I, 	section 7 only
protects "those 	privacy interests which 	citizens 	of this state have held, 	and
14 State v. Gunwall. 106 Wn.2d 54, 720 P.2d 808 (1986).

NO. 68019-6-1/7
should be entitled to hold, safe from governmental trespass absent a warrant."15
However, 	Jackson's 	standing 	argument 	is 	still 	based 	on 	his 	apparent
misapprehention that the no-contact order did 	not exclude him from 	Valdez's
house. 	He cites numerous cases that discuss Washington's heightened respect
for the 	privacy of one's 	house 	but 	provides 	no 	support for 	his 	claim to 	an
enforceable privacy right in Valdez's home, despite a valid court order barring
him from that location.
Jackson also challenges two of the court's findings of fact that supported
its conclusion that the search was reasonable. 	We review challenged findings to
determine whether substantial evidence supports the findings and whether the
findings in turn support the court's conclusions of law.16 	Challenged finding 1.e
states, "At this point the officers had two purposes in being at the residence: 	(1)
to make the parents aware of [D.V.j's 911 call and (2) to discuss the situation
with the parents and confirm this was discipline and not a crime." 	Finding 1.g
states, 	"Officer Tseng explained what happened with [D.V.] and 	Ms. Valdez
denied that an assault occurred. 	Officer Tseng again asked if there was an adult
male there. 	Ms. Valdez continued to refuse to provide a definite answer. 	Ms.
Valdez proceeded to somewhat block the hallway." 	Officer Tseng's unrebutted
testimony supports 	both 	of these findings. 	Thus, 	the 	court's findings 	were
supported by substantial evidence and support its legal conclusion.
15 State v. Mvrick, 102 Wn.2d 506, 511, 688 P.2d 151 (1984).
16 State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009).
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NO. 68019-6-1/8
Jackson 	next 	contends that the 	court 	improperly admitted 	testimonial
hearsay, 	in violation 	of the Sixth Amendment's confrontation clause and the
parallel provision of article 1, section 22 of the Washington Constitution. 	The trial
court admitted a copy of the Colorado no-contact order. 	On the signature line,
someone had written, "Refused." The court refused to redact this and found that
the notation was not hearsay. 	Apart from the court's failure to redact the refusal,
Jackson does not argue that the court improperly admitted the order.
The 	confrontation 	clause 	bars 	the 	admission 	of "testimonial" 	hearsay
unless the declarant is unavailable to 	testify and 	the defendant had 	a 	prior
opportunity 	for 	cross-examination.17 	Although 	Washington 	courts 	have not
adopted any comprehensive list of what qualifies as a testimonial statement, the
courts 	have 	found 	that 	statements 	made 	"in 	anticipation 	of 	litigation" 	are
testimonial in nature.18 	Certified records that are not prepared for use in a
criminal 	trial 	are 	not 	testimonial.19 	Because the 	no-contact 	order was 	not
prepared 	in 	anticipation 	of 	litigation, 	it 	is 	not 	testimonial, 	and 	Jackson's
confrontation clause challenge fails.
Conclusion
Because the no-contact order prohibited Jackson from being present at
Valdez's residence, he had no expectation of privacy in her apartment and lacks
17 Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L.
Ed. 2d 177(2004).
18 State v. Hubbard, 169 Wn. App. 182, 185-86, 279 P.3d 521 (2012).
19 State v. Jasper, 174Wn.2d96, 112,271 P.3d 876 (2012).
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NO. 68019-6-1/9
standing to challenge the search. 	Because the order did not contain testimonial
hearsay, the court did not infringe on Jackson's confrontation rights by refusing to
redact the document. We affirm.
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WE CONCUR: