Volume 67 — Washington Appellate Reports

<bold>[1] Searches and Seizures — Warrant — Scope — Storage Locker</bold> <bold>Close to Apartment.</bold> A storage locker labeled with the same number as a residential apartment and located in a room a few feet away from the entrance to the apartment falls within the scope of a warrant authorizing a search of the apartment. <bold>[2] Criminal Law — Right to Counsel — Effective Assistance of</bold> <bold>Counsel — Test — In General.</bold> Representation provided a criminal defendant is constitutionally effective unless the attorney's performance fell below an objective standard of reasonableness and there is a reasonable probability that the outcome of the proceeding would have been different had the attorney's performance not been deficient. <bold>[3] Searches and Seizures — Warrant — Scope — Lock — Action To</bold> <bold>Gain Access.</bold> A police officer may search an area within the scope of the search warrant even if the area is locked or requires some additional act of entry or opening to gain access to the area. <bold>[4] Criminal Law — Punishment — Sentence — Conditions —</bold> <bold>Community Placement — Limiting Associations — Validity.</bold> A condition of community placement that the defendant not associate with persons using, possessing, or dealing with controlled<page_number>Page 449</page_number> substances provides adequate notice of what conduct is prohibited and is neither overbroad nor vague. <bold>[5] Criminal Law — Punishment — Sentence — Conditions —</bold> <bold>Community Placement — Relationship to Crime — Necessity.</bold> A condition of community placement imposed under RCW 9.94A.120(8)(c) need not be related to the crime of which the defendant was convicted.

<bold>[1] Searches and Seizures — Warrant — Validity — Officer's</bold> <bold>Subjective Intent.</bold> When the validity of a search warrant is not challenged, the subjective motivation of the officer obtaining the warrant is irrelevant. <bold>[2] Searches and Seizures — Plain View — Inadvertent Discovery —</bold> <bold>Necessity.</bold> Inadvertent discovery is not required under either the Fourth Amendment or Const. art. 1, § 7 to justify the seizure of evidence under the plain view doctrine. <bold>[3] Appeal — Review — Issues First Raised in Reply Brief —</bold> <bold>Constitutional Rights.</bold> An appellate court may consider a constitutional issue raised for the first time in an appellant's reply brief. <bold>[4] Searches and Seizures — Plain View — Execution of Warrant.</bold> The privacy interest of Const. art. 1, § 7 is not violated by the discovery of contraband in the plain view of an officer properly executing a lawfully issued search warrant. <bold>[5] Searches and Seizures — Warrantless Search — Validity —</bold> <bold>Exigent Circumstances — Factors.</bold> Factors used to determine the reasonableness of a warrantless search under the exigent circumstances exception to the warrant requirement include: (1) the degree of urgency and the amount of time necessary to obtain a warrant; (2) a reasonable belief that contraband was about to be removed; (3) the possibility of danger to police officers guarding the site while a warrant was obtained; (4) indications that the possessors of contraband were aware of police activity directed at them; and (5) the ready destructibility of the contraband and the knowledge that disposal efforts are characteristic behavior of persons engaged in the particular line of criminal activity. The officer's experience and specialized knowledge may be considered in determining the probability of criminal activity and of an exigency. <bold>[6] Criminal Law — Right to Counsel — Effective Assistance of</bold> <bold>Counsel — Test — In General.</bold> The presumption that a criminal defendant had effective assistance of counsel is overcome only by proof that counsel's conduct was deficient and that such deficiency prejudiced the defendant. Matters in the nature of trial tactics or strategy are generally not considered.<page_number>Page 624</page_number> <bold>[7] Criminal Law — Right to Counsel — Effective Assistance of</bold> <bold>Counsel — Trial Strategy — Interference by Defendant.</bold> A criminal defendant who prevents a trial tactic from being developed by counsel cannot later complain that the failure to develop the tactic constituted ineffective assistance of counsel.

<bold>[1] Privacy — Evidence — Recording Private Conversations —</bold> <bold>Statutory Provisions — Purpose.</bold> The privacy act (RCW 9.73) is primarily intended to protect personal privacy by prohibiting public dissemination of illegally obtained information. <bold>[2] Privacy — Evidence — Recording Private Conversations — Scope</bold> <bold>— "Tipped" Phone Receiver.</bold> An interception under the privacy act (RCW 9.73) does not occur when a third party listener stands close to one of the parties to a telephone conversation who has the telephone receiver tipped in the direction of the third party listener so that the third party can hear the conversation. <bold>[3] Privacy — Evidence — Recording Private Conversations —</bold> <bold>Expectation of Privacy — Assumption of Risk.</bold> A party to a telephone conversation assumes the risk that the other party might allow a third party, unknown to the first party, to listen in; the first party does not have an expectation of privacy that only one person is listening on the other end.<page_number>Page 709</page_number> <bold>[4] Privacy — Evidence — Recording Private Conversations —</bold> <bold>Recording or Transmitting Device — Necessity.</bold> Listening in on a telephone conversation without benefit of a device designed to record or transmit sound does not violate the privacy act (RCW 9.73). <bold>[5] Constitutional Law — Right to Privacy — Telephone</bold> <bold>Conversation — Overhearing.</bold> An unrecorded telephone conversation overheard by a third party on a receiver tipped in the direction of the third party does not violate the privacy protections of Const. art. 1, § 7.

<bold>[1] Evidence — Relevance — Review — Standard of Review.</bold> A trial court's determination of the relevance of evidence is reviewed under the abuse of discretion standard. <bold>[2] Criminal Law — Review — Harmless Error — Admission of</bold> <bold>Evidence — Test.</bold> An error in the admission of evidence in a criminal trial is harmless unless, within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred. <bold>[3] Criminal Law — Witnesses — Credibility — Character —</bold> <bold>Commendations or Awards — Foundation.</bold> Evidence of a commendation or award received by a police officer is not admissible under ER 608(a) unless the State establishes a foundation showing that the commendation or award is relevant to the officer's credibility as a witness. <bold>[4] Criminal Law — Evidence — Opinion Evidence — Expert</bold> <bold>Testimony — Qualifications — Police Officer as Primary</bold> <bold>Witness — Commendations or Awards.</bold> Evidence of a commendation or award received by a police officer offering first-person testimony about a defendant's arrest and search is not admissible to demonstrate the officer's qualifications as an expert under ER 702.<page_number>Page 839</page_number> <bold>[5] Criminal Law — Trial — Misconduct of Prosecutor — Prejudice</bold> <bold>— Necessity.</bold> Prosecutorial misconduct does not necessitate reversal of a conviction unless the defendant can show resulting prejudice. <bold>[6] Criminal Law — Trial — Misconduct of Prosecutor — Cross</bold> <bold>Examination — Police Officers as Liars.</bold> It is misconduct for a prosecutor to ask a criminal defendant on cross examination to express an opinion as to whether a police officer lied. <bold>[7] Criminal Law — Trial — Misconduct of Prosecutor — Cross</bold> <bold>Examination — Harmless Error — Test.</bold> Unless a criminal defendant properly objected to a prosecutor's improper cross examination at trial, requested a curative instruction, or moved for a mistrial, an appellate court should not reverse the ensuing conviction unless the prosecutorial misconduct was so flagrant and ill-intentioned that a curative instruction could not have obviated the resulting prejudice.