[No. 63559-0-I. Division One. April 18, 2011.]
January 10, 2011, Oral Argument Nancy P. Collins (of Washington Appellate Project), for appellant. Daniel T. Satterberg, Prosecuting Attorney, and Stephen P. Hobbs, Deputy, for respondent. AUTHOR: C. Kenneth Grosse, J. We concur: Ann Schindler, J, Anne Ellington, J. ¶1 GROSSE, J. -- It is not an abuse of discretion for the trial court to grant multiple continuances to ensure that defense counsel is adequately prepared even though the defendant objects to the majority of those continuances. Brandon Ollivier also raises additional issues, none of which have any merit. We affirm. FACTS ¶2 Brandon Ollivier is a registered sex offender. In March 2007, he was living with two roommates, both of whom were registered sex offenders. While in police custody for a community custody violation, Eugene Anderson, one of Ollivier's roommates, gave a taped interview to Detective Dena Saario. In that interview, Anderson stated that Ollivier had shown him a video of a young girl having sexual relations with a young boy. He also stated that Ollivier showed him other provocative photographs of young girls approximately 9 years old, who, although clothed, were provocatively posed. ¶3 Ollivier was arrested on April 13, 2007 and charged with possession of depictions of minors engaged in sexually explicit activity. He was arraigned on April 18, 2007. His initial speedy trial expiration date was June 29, 2007. A total of 22 continuances were granted before the trial took place 22 months later on March 9, 2009. Ollivier objected to 19 of the 22 continuances. There were primarily three reasons defense counsel sought the continuances: (1) need for an expert to review the computer content, (2) need to obtain information from the Washington State Department of Corrections (DOC), and (3) need to obtain information regarding the lead detective's resignation from the sheriff's office because an internal investigation found the detective dishonest. ¶4 Ollivier was convicted by jury of one count of possession of depictions of minors engaged in sexually explicit conduct and sentenced to 30 months. ¶5 Ollivier appeals, contending that under the court rules and the state and federal constitutions, his right to a speedy trial was denied. Additionally, Ollivier argues that the informant's information was unreliable and that the search warrant was overbroad, not supported by probable cause, and improperly served. ANALYSIS Speedy Trial [1-3] ¶6 Ollivier contends that the 22 continuances violated his constitutional right to a speedy trial under both the court rule and the federal and state constitutions. A trial court's decision to grant a continuance under CrR 3.3 will not be disturbed absent a showing of manifest abuse of discretion. [4] ¶7 CrR 3.3 was enacted for the purpose of enforcing a defendant's constitutional right to a speedy trial. [5-7] ¶8 A denial of Sixth Amendment rights is reviewed de novo. [8, 9] ¶9 To determine whether a defendant's constitutional speedy trial rights were violated, courts balance four interrelated factors. ¶10 Here, Ollivier was originally charged with multiple counts of possession of depictions of minors engaged in sexually explicit conduct, which could have subjected him to a long sentence. However, in the middle of the trial, the additional counts were dismissed and only one count went to the jury, resulting in an indeterminate sentence with a minimum of 30 months and a maximum of 10 years. In Barker, a 10-month incarceration was not found to be sufficiently oppressive. Indeed, "[l]ower courts have reached the same conclusion as to substantially longer periods of imprisonment" than that involved in Barker. ¶11 Moreover, the presumption of prejudice needed to reach the additional Barker factors is not sufficient in and of itself to find actual prejudice. Although Ollivier objected to his counsel's requests for continuance, he does not specify what prejudice he in fact suffered. Actual prejudice to the defense is required. [10] ¶12 Defense counsel requested each of the continuances. Five of the continuances were attributable to the defense's need to obtain an expert's opinion on the computer. On November 30, 2007, the basis of the continuances was the defense's need to obtain additional information from DOC and third parties. In September 2008, defense counsel discovered that the detective who had sworn out the warrant had resigned from the sheriff's office after facing allegations of dishonesty. The final seven continuances were entwined with obtaining the information from that internal investigation and briefing to suppress information obtained as a result of the warrant. Prejudice to Ollivier would have resulted had he gone to trial with an unprepared attorney. Although 22 months is a long time, that in and of itself does not establish actual prejudice, particularly, where, as here, the continuances were all requested by defense counsel. Our holding is in accord with the United States Supreme Court's holding in Vermont v. Brillon. ¶13 Although Ollivier remained in custody for over 22 months, it was not necessarily an undue delay. This is particularly true because the continuances were all requested by defense counsel, who asserted that she was not prepared to go to trial without the necessary information. None of the continuances can be described as unreasonable. Validity of Search Warrant [11-13] ¶14 Ollivier argues that there was insufficient probable cause to issue a search warrant and that the informant's information was unreliable. An affidavit for a search warrant establishes probable cause if it sets forth facts sufficient for a reasonable person to conclude that the defendant is probably involved in criminal activity and that the police will find evidence of that criminal activity at the place to be searched. [14] ¶15 When an informant's tip forms the basis for probable cause, Washington courts apply the Aguilar-Spinelli test. [15-17] ¶16 An informant who trades information for a favorable sentencing recommendation has a strong motive to be accurate. ¶17 Ollivier also contends that the warrant was invalid both because the physical items were not described with particularity and also that the search of the computer's contents was not sufficiently identified. Neither of these contentions have any merit. The search warrant specified a red lock box, computers, and the peripheral hardware associated with computers. The information obtained from the red lock box was suppressed. [18-20] ¶18 The probable cause to seize the computer was established via Anderson's information. The warrant set forth with particularity the items that were to be seized. The affidavit for the search warrant set forth the reasons why the related computer items such as electronic storage media needed to be included. There was "a sufficient nexus between the targets of the search and the suspected criminal activity." Execution of Search Warrant [21] ¶19 Ollivier argues that the warrant was not shown to him as required by CrR 2.3(d). CrR 2.3(d) provides: Execution and Return With Inventory. The peace officer taking property under the warrant shall give to the person from whom or from whose premises the property is taken a copy of the warrant and a receipt for the property taken. If no such person is present, the officer may post a copy of the search warrant and receipt. The return shall be made promptly and shall be accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the person from whose possession or premises the property is taken, or in the presence of at least one person other than the officer. The court shall upon request deliver a copy of the inventory to the person from whom or from whose premises the property was taken and to the applicant for the warrant. Although the rule requires that officers conducting a search provide the occupant with a copy of the warrant prior to commencing the search, procedural noncompliance does not compel invalidation of an otherwise sufficient warrant or suppression of the fruits of the search absent a showing of prejudice. ¶20 A similar conclusion was reached in State v. Ettenhofer. If our concern were only with these violations, we would next consider whether the violations prejudiced the defendant because, constitutional considerations aside, rules guiding the warrant procedure are ministerial and reversal, therefore, does not follow as a matter of course. See State v. Kern, 81 Wn. App. 308, 311, 914 P.2d 114, review denied, 130 Wn.2d 1003, 925 P.2d 988 (1996); see also State v. Wible, 113 Wn. App. 18, 25, 51 P.3d 830 (2002) ("[A] ministerial mistake is grounds for invalidation of a search warrant only if prejudice is shown."). But because we conclude that the written warrant failure violated Ettenhofer's constitutional rights against unreasonable searches, which renders the search invalid as a matter of law, prejudice need not be shown. See State v. Clausen, 113 Wn. App. 657, 660, 56 P.3d 587 (2002) (Absent an exception, warrantless searches are invalid as a matter of law under the state and federal constitutions.). Here, Ollivier has not shown any prejudice by the seizure of evidence subject to a valid warrant. ¶21 Ollivier relies on United States v. Gantt We note that the continuing validity of our holding in Gantt has been directly called into question by at least one court. See People v. Ellison, 4 Misc.3d 319, 773 N.Y.S.2d 860, 868 & n. 5 (S.Ct.2004) (asserting that Gantt appears to have been "fully abrogate[d]" by the Supreme Court's decisions in United States v. Banks, 540 U.S. 31, 124 S.Ct. 521, 524-25, 157 L.Ed.2d 343 (2003), and Groh v. Ramirez, 540 U.S. 551, 124 S.Ct. 1284, 1292 & n.5, 157 L.Ed.2d 1068 (2004)); see also United States v. Katoa, 379 F.3d 1203, 1205 (10th Cir.2004) ("As the Supreme Court recently reaffirmed in Groh v. Ramirez, 540 U.S. 551, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004), the Fourth Amendment does not necessarily require officers to serve a warrant at the outset of a search"). While dicta in the Supreme Court's recent decision in Groh v. Ramirez casts serious doubt both on our interpretation of Rule 41 and our reasoning in Gantt, it fails definitively to abrogate our holding. Thus, Ollivier's reliance on Gantt is misplaced. Statement of Additional Grounds (SAG) ¶22 Ollivier's SAG raises the same issues as counsel does in her briefing. The only additional ground he raises is without merit. He disputes the legislature's classification of this crime. However, his argument is based on crimes in another statute and therefore are not comparable. ¶23 Accordingly, we affirm the judgment and sentence. ELLINGTON and SCHINDLER, JJ., concur.