Jump to content

Police GPS Catches Murderer

Followers 0

Recommended Posts

Ouch, that link didn't work at all. Here's the text:



Courts Home | Opinions Search | Print View | Map | Help


Supreme Court of the State of Washington


Opinion Information Sheet


Docket Number: 72799-6

Title of Case: State of Washington V William Bradley Jackson

File Date: 09/11/2003

Oral Argument Date: 05/20/2003




Appeal from Superior Court,





Authored by Barbara A. Madsen

Concurring: Faith Ireland

Bobbe J Bridge

Charles W. Johnson

Gerry L Alexander

Richard B. Sanders

Susan Owens

Tom Chambers

Mary Fairhurst




Counsel for Petitioner(s)

Paul J. II Wasson

Attorney at Law

2521 W Longfellow Ave

Spokane, WA 99205-1548


Counsel for Respondent(s)

Kevin Michael Korsmo

Attorney at Law

1100 W Mallon Ave

Spokane, WA 99260-2043


Amicus Curiae on behalf of American Civil Liberties Union Of Wa

Douglas B Klunder

Attorney at Law

1603 45th Ave SW

Seattle, WA 98116-1625






Respondent, )


v. ) EN BANC




Petitioner. ) Filed: September 11, 2003.



MADSEN, J. -- Petitioner William Bradley Jackson maintains that a

warrant is required under article I, section 7 of the Washington State

Constitution before police may attach global positioning system (GPS)

devices to a vehicle in order to track the driver's movements. We agree.

However, because in this case the police obtained valid warrants, we find

no constitutional violation. In addition, we affirm a ruling denying

Jackson's motion for a change of venue due to pretrial publicity, affirm

his conviction, and uphold the exceptional sentence imposed.


On October 18, 1999, Jackson called 911 at 8:45 a.m. to report that

his nine-year-old daughter Valiree was missing from their residence in the

Spokane Valley. Immediately, volunteers joined sheriff's personnel and

canine units in a thorough search of the neighborhood. Deputy Scott Nelson

arrived at the Jackson residence, where Valiree and Jackson had lived with

his parents the previous seven months. Nelson interviewed Jackson's

mother, who said she kissed a sleeping Valiree good-bye as she left for

work a little before 4:30 that morning. Jackson said he had last seen

Valiree at 8:15 a.m. in the front yard. Her backpack was on the front


Detective Madsen, who also responded, saw bloodstains on Valiree's

pillow and faded blood on the bed sheet. Jackson explained that Valiree

had a nose bleed the night before, but Madsen saw nothing used to stop a

nosebleed. Madsen took the bedding for analysis. Detectives soon believed

that Jackson had something to do with his daughter's disappearance. They

informed him of their suspicion that he may have removed Valiree from the


On October 23, 1999, police obtained a warrant to search the residence

and impound and search Jackson's two vehicles, a 1995 Ford pickup and a

1985 Honda Accord (warrant # 1). On October 26, Detective Knechtel

obtained a 10-day warrant (warrant # 2) to attach GPS devices to the two

vehicles while they were still impounded. The devices were connected to

the vehicles' 12-volt electrical systems. Use of the GPS devices allowed

the vehicles' positions to be precisely tracked when data from the devices

was downloaded. The vehicles were returned to Jackson but he was not

informed about installment of the devices. Detective Madsen did inform

Jackson that the police believed he had hastily buried Valiree's body, that

animals would likely dig her up, and that the body would be found and used

as evidence against him. Knechtel obtained a second 10-day warrant to

maintain the GPS devices on the vehicles (warrant # 3).

Data from the GPS device on the truck showed that on November 6, 1999,

Jackson drove to his storage unit and then to a remote location on a

logging road, the Springdale site, where the truck was motionless for about

45 minutes. Data showed that on November 10, 1999, Jackson made a trip to

another remote location (the Vicari site) where he remained about 16

minutes, and then traveled to the Springdale site where the truck remained

stopped for about 30 minutes, then left and stopped several other places,

including the storage unit. Investigators discovered Valiree's body in a

shallow grave at the Springdale site, and found evidence at the Vicari site

(two plastic bags with duct tape containing hair and blood--the duct tape

edge matched duct tape later found at Jackson's residence in a search

pursuant to another warrant).

On November 13, 1999, after stopping at his storage unit, Jackson

borrowed his neighbor's truck, telling the neighbor he had a job to finish.

He borrowed the truck, he said, because he suspected he was being followed.

Hunters near the Springdale site saw him in a pickup truck close to the

Springdale gravesite. When Jackson returned the truck, he left a shovel in


A warrant was issued for Jackson's arrest that same day. In the

evening police stopped him, noting that he had been driving around with an

unloaded shotgun in the vehicle and acting suicidal. He was initially

hospitalized but later released and charged with Valiree's murder.

At trial, the evidence showed that Valiree suffocated. From jail

Jackson wrote to his parents claiming a new hunting buddy 'Craig' may have

kidnapped Valiree. He subsequently admitted making this up. Instead, his

defense at trial was that Valiree overdosed on a prescription

antidepressant prescribed for her by her counselor. He testified at trial

that he thought that the police would blame him for the death since he had

been a suspect in the unexplained 1992 disappearance of Valiree's mother,

and therefore he panicked and buried the body. The State presented

substantial evidence that Jackson killed Valiree because he saw her as an

impediment to his reuniting with his former girlfriend. Valiree and the

girlfriend did not get along.

There was considerable media coverage of Valiree's disappearance and

subsequent events. Jackson moved several times for a change of venue due

to pretrial publicity; his motions were denied. Following his trial, on

October 5, 2000, a jury returned a verdict of guilty of first degree

murder. The court denied Jackson's motion for a new trial or arrest of

judgment due to cumulative error. The court imposed an exceptional

sentence of 672 months based upon several aggravating factors, including

the impact of the crime on the community.

Jackson appealed and the Court of Appeals affirmed. State v. Jackson,

111 Wn. App. 660, 46 P.3d 257 (2002), review granted, 148 Wn.2d 1008

(2003). Among other things, that court concluded that the warrants

authorizing installation and use of the GPS devices were unnecessary under

article I, section 7 of the Washington State Constitution; the court thus

did not reach the merits of Jackson's challenge to issuance of the


This court granted Jackson's petition for discretionary review. While

he raised numerous arguments on appeal, he has abandoned many of them and

now raises only four in his petition for review. The American Civil

Liberties Union (ACLU) of Washington was granted leave to file an amicus

brief on the issue of whether installation and use of a GPS device on a

suspect's vehicle requires a warrant under article I, section 7.


The Court of Appeals held that warrantless installation and use of a

GPS device on a private vehicle does not violate article I, section 7.

That court appears to have reasoned that because no warrant is required, it

is unnecessary to decide whether the warrants that the police actually

obtained in this case were supported by probable cause. Accordingly, the

first question before us is whether the Court of Appeals erred in its

holding that installation and use of GPS devices on vehicles does not

constitute a search or seizure under article I, section 7 of the Washington

State Constitution.1

Article I, section 7 provides that '{n}o person shall be disturbed in

his private affairs, or his home invaded, without authority of law.' It is

now settled that article I, section 7 is more protective than the Fourth

Amendment, and a Gunwall analysis is no longer necessary. State v.

Vrieling, 144 Wn.2d 489, 495, 28 P.3d 762 (2001) (citing State v. Gunwall,

106 Wn.2d 54, 720 P.2d 808 (1986)). The inquiry under article I, section 7

is broader than under the Fourth Amendment to the United States

Consitiution, and focuses on 'those privacy interests which citizens of

this state have held, and should be entitled to hold, safe from

governmental trespass.' State v. Myrick, 102 Wn.2d 506, 511, 688 P.2d 151

(1984). Thus, whether advanced technology leads to diminished subjective

expectations of privacy does not resolve whether use of that technology

without a warrant violates article I, section 7. 102 Wn.2d at 514; State

v. Young, 123 Wn.2d 173, 181-82, 867 P.2d 593 (1994).

Where a law enforcement officer is able to detect something at a

lawful vantage point through his or her senses, no search occurs under

article I section 7. State v. Seagull, 95 Wn.2d 898, 901, 632 P.2d 44

(1981); Young, 123 Wn.2d at 182. '{W}hat is voluntarily exposed to the

general public and observable without the use of enhancement devices from

an unprotected area is not considered part of a person's private affairs.'

Young, 123 Wn.2d at 182. The court has also affirmed as constitutional

searches involving sense-enhancing devices such as binoculars or a

flashlight, allowing police to see more easily what is open to public view.

Young, 123 Wn.2d at 183 n.1 (citing State v. Manly, 85 Wn.2d 120, 124, 530

P.2d 306 (1975) (binoculars)); State v. Rose, 128 Wn.2d 388, 400-01, 909

P.2d 280 (1996) (flashlight). 'However, a substantial and unreasonable

departure from a lawful vantage point, or a particularly intrusive method

of viewing, may constitute a search.' Young, 123 Wn.2d at 182-83 (emphasis

added). Thus, where police used an infrared thermal device to detect heat

distribution patterns within a home that were not detectable by the naked

eye or other senses, the surveillance was a particularly intrusive means of

observation that exceeded allowable limits under article I, section 7.

Young, 123 Wn.2d at 182-84.

The court has also noted that the nature and extent of information

obtained by the police, for example, information concerning a person's

associations, contacts, finances, or activities is relevant in deciding

whether an expectation of privacy an individual has is one which a citizen

of this state should be entitled to hold. State v. McKinney, 148 Wn.2d 20,

29, 60 P.3d 46 (2002) (citing State v. Boland, 115 Wn.2d 571, 578, 800 P.2d

1112 (1990); Young; 123 Wn.2d at 183-84; In re Pers. Restraint of Maxfield,

133 Wn.2d 332, 354, 945 P.2d 196 (1997)). Here, the Court of Appeals

first held that because Jackson's vehicles were impounded for searches

pursuant to another warrant (warrant # 1) at the time the GPS devices were

installed, 'potential interference issues' were foreclosed, and the initial

intrusion was not a trespass under Myrick. We disagree. The Florida Court

of Appeals was faced with a similar issue under the Fourth Amendment when a

tracking device was installed on an airplane. Officers had a warrant

authorizing installation of a device 'upon or under' the aircraft, but also

installed an additional tracking device under a panel at the rear of the

interior of the plane. The first device failed, the second worked. The

court found installation of the second device was 'tantamount to an illegal

entry and beyond the scope of the warrant,' and suppressed evidence

obtained through its use. Johnson v. State, 492 So.2d 693, 694 (Fla. Dist.

Ct. App. 1986). Similarly, here the warrant authorizing a search of the

vehicles for blood, hair, body fluids, fibers and other evidence relevant

to Valiree's disappearance did not authorize installation of GPS devices,

and installation of the devices was clearly in excess of the scope of the


The Court of Appeals also held that use of the GPS devices was merely

sense augmenting, revealing information that Jackson exposed to public

view. The court noted that law enforcement officers could legally follow

Jackson on his travels to the ministorage compartment and the two

gravesites. We do not agree that use of the GPS devices to monitor Mr.

Jackson's travels merely equates to following him on public roads where he

has voluntarily exposed himself to public view.

It is true that an officer standing at a distance in a lawful place

may use binoculars to bring into closer view what he sees, or an officer

may use a flashlight at night to see what is plainly there to be seen by

day. However, when a GPS device is attached to a vehicle, law enforcement

officers do not in fact follow the vehicle. Thus, unlike binoculars or a

flashlight, the GPS device does not merely augment the officers' senses,

but rather provides a technological substitute for traditional visual

tracking. Further, the devices in this case were in place for

approximately two and one-half weeks. It is unlikely that the sheriff's

department could have successfully maintained uninterrupted 24-hour

surveillance throughout this time by following Jackson. Even longer

tracking periods might be undertaken, depending upon the circumstances of a

case. We perceive a difference between the kind of uninterrupted, 24-hour

a day surveillance possible through use of a GPS device, which does not

depend upon whether an officer could in fact have maintained visual contact

over the tracking period, and an officer's use of binoculars or a

flashlight to augment his or her senses.2

Moreover, the intrusion into private affairs made possible with a GPS

device is quite extensive as the information obtained can disclose a great

deal about an individual's life. For example, the device can provide a

detailed record of travel to doctors' offices, banks, gambling casinos,

tanning salons, places of worship, political party meetings, bars, grocery

stores, exercise gyms, places where children are dropped off for school,

play, or day care, the upper scale restaurant and the fast food restaurant,

the strip club, the opera, the baseball game, the 'wrong' side of town, the

family planning clinic, the labor rally. In this age, vehicles are used to

take people to a vast number of places that can reveal preferences,

alignments, associations, personal ails and foibles. The GPS tracking

devices record all of these travels, and thus can provide a detailed

picture of one's life.

We find persuasive the analysis of the Oregon Supreme Court in a case

involving a radio transmitter attached without a warrant to the exterior of

a suspect's vehicle. State v. Campbell, 306 Or. 157, 759 P.2d 1040 (1988).

Like this State's, the Oregon constitutional protection against warrantless

searches and seizures focuses on the right to privacy, which is not defined

by technological advances. Id. at 164 (citing article I, section 9 of the

Oregon State Constitution). Similar to discussions by this court, the

Oregon court emphasized the importance of the method by which the police

obtained information. As the court pointed out, an officer could look

through a living room window from across the street aided by a telephoto

lens to observe a defendant exposing himself to public view, but the

officer could not obtain the same information by entering the home without

consent. Id. at 167. Thus, the court said, the question was not whether

what the police learned by use of the transmitter was exposed to public

view, but whether use of the device can be characterized as a search. Id.

The court said that '{i}ntrusions and technologically enhanced observations

into 'protected premises' infringe {protected} privacy interests . . . but

the question whether an individual's privacy interests have been infringed

by an act of the police cannot always be resolved by reference to the area

at which the act is directed.' Id. at 169. The court said that a privacy

interest is 'an interest in freedom from particular forms of scrutiny.'

Id. at 170. The court reasoned that use of a device that enabled the

police to locate a person within a 40-mile radius day or night 'is a

significant limitation on freedom from scrutiny' and 'a staggering

limitation upon personal freedom.' Id. at 172. The court noted that

allowing use of such radio transmitters would mean that 'individuals must

more readily assume that they are the objects of government scrutiny'

noting that commentators 'have observed that freedom may be impaired as

much, if not more so, by the threat of scrutiny as by the fact of

scrutiny.' Id. The court held that a warrant was required, and affirmed

suppression of evidence obtained.3

If police are not required to obtain a warrant under article I,

section 7 before attaching a GPS device to a citizen's vehicle, then there

is no limitation on the State's use of these devices on any person's

vehicle, whether criminal activity is suspected or not. The resulting

trespass into private affairs of Washington citizens is precisely what

article I, section 7 was intended to prevent. It should be recalled that

one aspect of the infrared thermal imaging surveillance in Young that

troubled us was the fact that if its use did not require a warrant, there

would be no limitation on the government's ability to use it on any private

residence, at any time regardless of whether criminal activity is

suspected. Young, 123 Wn.2d at 186-87.

As with infrared thermal imaging surveillance, use of GPS tracking

devices is a particularly intrusive method of surveillance, making it

possible to acquire an enormous amount of personal information about the

citizen under circumstances where the individual is unaware that every

single vehicle trip taken and the duration of every single stop may be

recorded by the government.

We conclude that citizens of this State have a right to be free from

the type of governmental intrusion that occurs when a GPS device is

attached to a citizen's vehicle, regardless of reduced privacy expectations

due to advances in technology. We hold that under article I, section 7 a

warrant is required for installation of these devices.

Because we hold that installation and use of a GPS device on a private

vehicle involves a search and seizure under article I, section 7, we next

consider whether the issuance of the two warrants obtained in this case

were supported by probable cause.

A search warrant may be issued only upon a determination of probable

cause. State v. Gore, 143 Wn.2d 288, 296, 21 P.3d 262 (2001). Probable

cause exists where the affidavit in support of the warrant sets forth facts

and circumstances sufficient to establish a reasonable inference that the

defendant is probably involved in criminal activity and that evidence of

the crime may be found at a certain location. State v. Vickers, 148 Wn.2d

91, 108, 59 P.3d 58 (2002); State v. Thein, 138 Wn.2d 133, 140, 977 P.2d

582 (1999). The affidavit must be based upon more than mere suspicion or

personal belief that evidence of the crime will be found at the place to be

searched. Vickers, 148 Wn.2d at 108. A judge's decision to issue a

warrant is reviewed for abuse of discretion, and great deference is

accorded that decision. Id. The affidavit is evaluated in a common sense

manner, rather than hypertechnically, and any doubts are resolved in favor

of the warrant. Id.; State v. Helmka, 86 Wn.2d 91, 93, 542 P.2d 115

(1975); State v. Partin, 88 Wn.2d 899, 904, 567 P.2d 1136 (1977).

The affidavit in support of issuance of the initial warrant for the

GPS devices included the following: Bloodstains were found on Valiree's

pillow and sheet. More than one red pubic hair was found in her sheets,

and both she and Jackson have red hair. Her family physician had advised

the detective that Valiree had not reached puberty and to his knowledge did

not have pubic hair.4 The affidavit said this suggested the possibility

the father was donor of the hair and the possibility of some kind of sexual

misconduct or assault. Valiree had been taught by her grandmother to

scream if threatened, but no screams were heard. Her backpack was found on

the front porch of the residence. The house and neighborhood had been

thoroughly searched. No one else saw the child between 4:30 a.m. and 8:30

a.m., and there was some evidence she had been missing only a half hour.

Mr. Jackson was the only person at the home and he had access to two

vehicles. The affidavit in support of the additional warrant, seeking an

extension of 10 days of surveillance using the GPS devices, was an


In light of the thorough search of the residence and neighborhood, a

reasonable person could infer that Valiree had been removed, likely in a

vehicle. Since no screams were heard, an inference could be drawn that

Valiree might have been killed or that she was either incapacitated or

removed by someone she trusted. Given the limited time frame, it could

also be inferred that there was insufficient time to hide her or her body

or other incriminating evidence. Further, if she was alive or alive and

incapacitated, the abductor would need to assure she would not escape and

to provide for her basic needs. The presence of red pubic hair when her

physician advised that she had not reached puberty suggests the possibly of

sexual assault or an attempt, possibly by Jackson, who has red hair.

Jackson was the only one present at the residence, and it would be

reasonable to infer that he had something to do with Valiree's

disappearance given all the facts and circumstances.

We conclude that the affidavits set forth sufficient facts and

circumstances for a reasonable person to infer that Jackson was probably

involved in a crime and that installation of the GPS devices would lead to

evidence of that crime, i.e., that Jackson might use a vehicle to travel to

provide for Valiree's needs since it was reasonable to infer that she might

still be alive. And, assuming she was dead, it was reasonable to infer

that Jackson would use a vehicle to drive to her location to thoroughly

hide the body and dispose of evidence, given the limited time that would

have been available to Jackson the morning Valiree disappeared.

Jackson argues, however, that the affidavit in support of the first of

the two warrants relating to the GPS devices contains a generalization of

the kind disapproved in Thein, and therefore the affidavit did not

establish probable cause. The affidavit provided, in addition to the

information described above, the affiant's statement that he was 'aware and

has been told that in some homicide cases and others, the perpetrator has

returned to crime scenes, for various reasons.' Clerk's Papers (CP) at 25.

In Thein, the affidavit contained only generalized statements of

belief about drug dealers' common habits, particularly that such persons

commonly keep a portion of their drug inventory, paraphernalia, drug

trafficking records, large sums of money, financial records of drug

transactions, and weapons in their residences. The affidavit expressed the

belief that such evidence would be found at the suspect's address. We

found that such generalizations do not establish probable cause for

issuance of a search warrant for an alleged drug dealer's residence, since

a finding of probable cause must be grounded in fact. Thein, 138 Wn.2d at

146-47. 'Absent a sufficient basis in fact from which to conclude evidence

of illegal activity will likely be found at the place to be searched, a

reasonable nexus {between the items to be seized and the place to be

searched} is not established as a matter of law.' 138 Wn.2d at 147. We

declined to essentially adopt a per se rule that once a person is

determined to be a drug dealer, then a finding of probable cause to search

that individual's residence would automatically follow. Id. at 141.

The trial court here attempted to distinguish Thein, saying that the

idea that drug dealers keep drugs in their homes is not as 'common-

sensical' as the idea that criminals return to the scene of their crimes.

CP at 277. However, the statement about criminals returning to the scene

of the crime, if accepted, would substitute for specific facts and

circumstances establishing probable cause. The statement also suggests

that probable cause to attach a tracking device to a suspect's vehicle

would automatically follow in any case where the criminal activity might

involve more than one location. We conclude that similar to the

circumstances in Thein, the statement here is a generalization that by

itself cannot establish probable cause to issue a warrant.

Unlike the case in Thein, however, the affidavit here establishes the

necessary probable cause, as discussed above, without the generalization

about which Jackson complains.

Jackson also argues that the two warrants authorized a 'fishing

expedition{}'--a general exploratory search to see what could be found when

the GPS data was downloaded. Br. of Appellant at 44-45. This again

focuses on the generalization about criminals returning to the crime.

However, to the extent this suggests a challenge to the degree of

particularity regarding the place to be searched and items to be seized, we

find no constitutional difficulty. As to particularity of place, the

warrant was issued to authorize installation of the GPS devices on the

vehicles for stated periods of time in order to track where Jackson went.

Thus, the 'place' searched is the travel pattern of the vehicles after

placement of the devices and the item to be seized is the location of

Jackson's movements. The routes obviously could not be identified with any

greater specificity, but a description of the place to be searched and

items to be seized is valid if it is as specific as the nature of the

activity under investigation permits. State v. Perrone, 119 Wn.2d 538,

616, 834 P.2d 611 (1992).

In United States v. Karo, 468 U.S. 705, 718, 104 S. Ct. 3296, 82 L.

Ed. 2d 530 (1984), the Court held that the warrantless installation of a

beeper in an ether can with the consent of an informant who transferred

several cans of ether to the suspect violated no Fourth Amendment interest,

but that monitoring the beeper after it was taken inside a private

residence violated the warrant requirement. The Court rejected the

government's argument that a warrant for tracking a beeper inside a private

residence should not be required because of difficulty complying with the

particularity requirement of the Fourth Amendment. The government had

argued it could not describe the place to be searched because that was what

was sought to be discovered through the search. The Court said that


it will still be possible to describe the object into which the beeper is

to be placed, the circumstances that led agents to wish to install the

beeper, and the length of time for which beeper surveillance is requested.

In our view, this information will suffice to permit issuance of a warrant

authorizing beeper installation and surveillance.


Karo, 468 U.S. at 718.

We find this reasoning persuasive. The affidavit here described the

place to be searched and the items to be seized with as much particularity

as the circumstances permitted, and the warrants did not authorize a

'fishing expedition.'

We hold that the affidavits in support of the warrants authorizing

installation and use of GPS devices on Jackson's vehicles established

probable cause for issuance of the warrants.

Next, Jackson maintains that the trial court erred in denying his

motion for a change of venue due to pretrial publicity. Adverse pretrial

publicity can create a presumption in a community that jurors' claims that

they can be impartial should not be accepted, and the totality of

circumstances is examined to decide whether such a presumption arises.

Patton v. Yount, 467 U.S. 1025, 1031, 104 S. Ct. 2885, 81 L. Ed. 2d 847

(1984) (citing Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed.2d 751

(1961)). The 'defendant must show a probability of unfairness or prejudice

from pretrial publicity.' Hoffman, 116 Wn.2d at 71; see Shepard v.

Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966). The fact

that 'the great majority of veniremen' remember a case, without more, is

'essentially irrelevant. The relevant question is not whether the

community remembered the case, but whether the jurors at {the} trial had

such fixed opinions that they could not judge impartially the guilt of the

defendant.' Patton, 467 U.S. at 1035 (citing Irvin, 366 U.S. at 723).

The trial court's decision to grant or deny a motion for a change of

venue is within the trial court's discretion, and appellate courts are

reluctant to reverse the trial court's decision absent a showing of abuse

of discretion. State v. Clark, 143 Wn.2d 731, 756, 24 P.3d 1006, cert.

denied, 534 U.S. 1000 (2001); Hoffman, 116 Wn.2d at 71. This court applies

factors identified in State v. Crudup, 11 Wn. App. 583, 524 P.2d 479 (1974)

in determining whether a trial court abused its discretion by granting or

denying a motion for a change in venue due to pretrial publicity. E.g.,

State v. Rice, 120 Wn.2d 549, 556, 844 P.2d 416 (1993); Clark, 143 Wn.2d at

756; Hoffman, 116 Wn.2d at 72. The factors are:

(1) the inflammatory or noninflammatory nature of the publicity; (2) the

degree to which the publicity was circulated throughout the community; (3)

the length of time elapsed from the dissemination of the publicity to the

date of trial; (4) the care exercised and the difficulty encountered in the

selection of the jury; (5) the familiarity of prospective or trial jurors

with the publicity and the resultant effect upon them; (6) the challenges

exercised by the defendant in selecting the jury, both peremptory and for

cause; (7) the connection of government officials with the release of

publicity; (8) the severity of the charge; and (9) the size of the area

from which the venire is drawn.


Crudup, 11 Wn. App. at 587. Previous cases applying these factors may be

helpful, but are not dispositive because each case is factually unique.

Rice, 120 Wn.2d at 556.

Jackson argues that while the Court of Appeals properly reviewed all

the Crudup factors, it erred in finding no abuse of discretion. He

contends that where the appellate court finds that some of the factors

favor a change and others are neutral, an abuse of discretion must be found

if the trial court denies a motion for a change of venue. We disagree.

Instead, careful consideration and balancing of all the Crudup factors and

the facts in a particular case is the appropriate course. Here, although

the publicity was at times extensive, and some of it inflammatory, and the

great majority of the veniremen had heard of the case, the care taken by

the trial court to ensure an impartial panel leads us to conclude that the

Court of Appeals correctly found no abuse of discretion.

We note that although Jackson apparently accepts the Court of Appeals'

assessment of each factor, we believe that the fourth factor, the care

exercised and difficulty encountered in selection of a jury, does not

present as close a question as that court believed. In his opening brief,

Mr. Jackson said this factor best supports his view that his motion should

have been granted, and the Court of Appeals agreed this factor was closer

than the others. We disagree.

Jackson first seems to argue that his motion should have been granted

on a presumption of bias before voir dire. The Court of Appeals disagreed,

noting that ''the best test of whether an impartial jury could be empaneled

{is} to attempt to empanel one.'' Jackson, 111 Wn. App. at 673 (quoting

Hoffman, 116 Wn.2d at 72-73).

The fact that the vast majority of the venire had heard about the case

is not the relevant question--the relevant question is whether the jurors

at the trial had such fixed opinions that they could not be impartial.

Patton, 467 U.S. at 1035 (citing Irvin, 366 U.S. at 723). Voir dire

provides a means to make this determination. This is not the extreme case

where publicity has so obviously saturated the community that a presumption

of bias should arise. See Rideau v. Louisiana, 373 U.S. 723, 725-26, 83 S.

Ct. 1417, 10 L. Ed. 2d 663 (1963).5 We conclude that the trial court did

not abuse its discretion in denying the motion before voir dire.

Jackson also maintains that the sheer number of prospective jurors who

were excused for cause is the strongest evidence of the 'overwhelming

pretrial bias.' Br. of Appellant at 38. The trial court instructed the

potential jurors to avoid media coverage or discussion about the case, and

inquired of each individual during voir dire whether this instruction had

been followed. Other than those jurors dismissed outright for admitted

bias, the defense was able to thoroughly question each prospective juror

individually in camera. About two-thirds of the prospective 143 jurors

were excused for cause--53 mainly due to pretrial publicity or personal

knowledge about the case. Thirty-four were excused for other causes,

mainly personal hardship. Four of the twelve members of the jury were

never challenged for cause, and the remaining eight were challenged for

cause by the defense during individual voir dire. The eight jurors who

were challenged for cause had heard of the case, but voir dire established

they had no fixed opinions about the case. Significantly, Jackson does not

identify any specific members of the seated jury or the alternates as being

biased, nor does he refer to any of the questions or responses during voir

dire as demonstrating these jurors' preexisting fixed opinions about the

case. Instead, as the trial court characterized it, the defense used a

'blanket exercise of challenges for cause' approach. Report of Proceedings

at 1662. Following individual voir dire, the jurors and alternates were

selected in general voir dire without apparent difficulty. Once selected,

they were instructed many times to avoid media publicity and discussion

about the case.

Here, as in several cases where this court has upheld a denial of

change of venue, the record shows that the trial court 'took great care in

the jury selection procedure and offered defendants the opportunity to

question individual prospective jurors alone in case any specific publicity

may have unduly influenced a particular juror.' Hoffman, 116 Wn.2d at 72;

see Clark, 143 Wn.2d at 758-59 (of 162 prospective jurors filling out

questionnaires, 15 percent claimed they had not seen, read, or heard

anything about the case, 63 percent of those remaining said they had formed

no opinion; individual voir dire conducted of 114 prospective jurors; of

the 12 jurors selected, 2 claimed they had not seen, read or heard anything

about the case, 2 could not remember specifics about what they had seen or

read, 1 who was not challenged for cause had formed an opinion but said she

could set it aside, and 7 remembered something specific about the case but

had not formed an opinion); Rice, 120 Wn.2d at 558 (nearly all of 153

prospective jurors knew of the murders; they were repeatedly instructed

regarding their duties and responsibilities; over a three-week period, all

underwent extensive individual questioning); State v. Rupe, 108 Wn.2d 734,

752-53, 743 P.2d 210 (1987) (lengthy, extensive individual voir dire

conducted; 11 days for jury selection).

We affirm the Court of Appeals' holding that there was no abuse of

discretion in denial of Jackson's motions for a change of venue due to

pretrial publicity. Jackson has not established a probability of

unfairness or prejudice resulting from pretrial publicity.

Jackson's next challenge is to the trial court's exceptional sentence

of 672 months based upon four aggravating factors: (1) the victim's

particular vulnerability; (2) violation of a position of trust; (3)

concealment of the crime beyond that normally associated with murder; and

(4) impact of the crime on the community and on the students at the

elementary school Valiree had attended. Jackson challenges only the last

of these aggravators.6 The Court of Appeals upheld this factor, and noted

that the trial court had determined that any one of the factors would

support the sentence imposed. Jackson complains that '{t}he fact the other

factors may be valid, if the conviction is affirmed, is not a reason to

validate an erroneous factor.' Pet. for Review at 5.

An exceptional sentence may be imposed if there are substantial and

compelling reasons to impose an exceptional sentence. RCW 9.94A.535

(formerly RCW 9.94A.390)). An exceptional sentence will be reversed only

where the reviewing court finds that the reasons relied upon by the

appellate court are not supported by the record under a clearly erroneous

standard; that the reasons relied upon do not justify an exceptional

sentence under a de novo standard of review; or that the sentence imposed

is clearly excessive or clearly too lenient, under an abuse of discretion

standard. RCW 9.94A.585(4) (formerly RCW 9.94A.210(4)); State v. Borg, 145

Wn.2d 329, 336, 36 P.3d 546 (2001); State v. Nordby, 106 Wn.2d 514, 517-18,

723 P.2d 1117 (1986). Jackson contends that the community impact

aggravating factor is not supported by the facts and is legally

insufficient to justify an exceptional sentence.

In State v. Johnson, 124 Wn.2d 57, 73-76, 873 P.2d 514 (1994), the

court held that community impact reasonably foreseeable to the defendant

may serve as an aggravator justifying an exceptional sentence. The impact

on others must be of a destructive nature not normally associated with the

commission of the offense in question. 124 Wn.2d at 74-75; see State v.

Pennington, 112 Wn.2d 606, 610, 772 P.2d 1009 (1989) (an exceptional

sentence is only appropriate where the circumstances of the crime

distinguish it from others of the same category). In Johnson, the

defendant was involved in a 'gang' drive-by shooting immediately next to a

public elementary school that was in session. Testimony was presented

showing that witnesses to the shooting included children about to be

released from school and their parents, and the trial court found that

after the shooting children were afraid to attend school and parents feared

for the safety of their children while at school. Johnson, 124 Wn.2d at

75. This court concluded that it was reasonably foreseeable to the

defendant that the children and their parents who were not the intended

victims would be traumatized by one who discharges a deadly weapon at

fleeing persons in an automobile in the immediate vicinity of a public

elementary school, and that this resulting trauma distinguished the case

from other assaults. 124 Wn.2d at 75-76.

The Court of Appeals has also found that the impact on third parties

justifies an exceptional sentence upward. In State v. Cuevas-Diaz, 61 Wn.

App. 902, 812 P.2d 883 (1991), for example, children present in the home

during an attack on their mother were traumatized by the attacks, and the

Court of Appeals found impact on these third parties to be a valid

aggravator. However, that court rejected impact on the community as an

aggravator, reasoning that while a community suffers from criminal acts,

this is always the case. 61 Wn. App. at 905. In State v. Way, 88 Wn. App.

830, 946 P.2d 1209 (1997), the court also rejected the impact on the

community factor. There, the defendant shot his estranged wife on a

community college campus, also shot at a student arriving in a car, and

many other students on campus heard or saw the shooting while taking cover.

The court reasoned that while the record showed psychological impact on

students, and this was foreseeable to the defendant, the circumstances of

the crime did not set it apart from any other murder committed in a public

place where adults might witness it. 88 Wn. App. at 834.


Here, the trial court found:

The defendant's use of a false abduction story to aid in covering up the

murder of his daughter had an impact on the community. The students,

parents and staff of McDonald Elementary, where Valiree Jackson attended

the third grade, were tremendously impacted. Parents would no longer allow

children to walk to and from school alone for fear that they to {sic} might

be abducted. Children had nightmares and their schoolwork was affected.

The principal, Jan Lenhart, would personally follow children home to make

sure they arrived safely.


Beyond McDonald Elementary, the whole community was impacted. The Spokane

County Sheriff's Department invested tremendous resources to search for a

missing child. People held candlelight vigils, praying for Valiree's safe

return. People searched and handed out flyers. People contributed to a

fund set up by the defendant. All of this was reasonably foreseeable by

the defendant, since he was the one who created the story and knew Valiree

Jackson was really dead.


CP at 556 (finding of fact 5).

Some of these findings do not distinguish this crime from others of

the same kind. Where a child (or adult) disappears and criminal activity

is indicated, it is not unusual that resources will be expended in

searching for the missing person or that the community will participate in

activities to help. However, the findings regarding the impact on the

children at Valiree's school, which are supported by the testimony of

Valiree's teacher, principal, and school counselor, justify the exceptional

sentence as in Johnson, and distinguish this case from Cuevas-Diaz and Way.


We uphold this aggravating factor. Accordingly, we need not reach

Jackson's claim that the presence of other aggravators does not overcome

the invalidity of one factor. Nevertheless, we note that the law is to the

contrary. Where the reviewing court overturns one or more aggravating

factors but is satisfied that the trial court would have imposed the same

sentence based upon a factor or factors that are upheld, it may uphold the

exceptional sentence rather than remanding for resentencing. State v.

Gore, 143 Wn.2d 288, 321, 21 P.3d 262 (2001); State v. Cardenas, 129 Wn.2d

1, 12, 914 P.2d 57 (1996) (affirming sentence while invalidating two of

three aggravators).

We affirm the exceptional sentence imposed.

Finally, Jackson raises the trial court's alleged error in denying his

motion for a new trial or arrest of judgment on the basis of cumulative

error. See CrR 7.4, 7.5. However, we find no error. The grant or denial

of a motion for a new trial is within the trial court's discretion, and no

abuse of that discretion occurs where there is no error, much less

cumulative error, as claimed. State v. Copeland, 130 Wn.2d 244, 294, 922

P.2d 1304 (1996).


Article I, section 7 protects from government intrusion those privacy

interests that people in Washington have traditionally held as well as

privacy interests they should be entitled to hold. Absent a recognized

exception to the warrant requirement, attachment of a GPS device to a

vehicle without a warrant


violates these privacy interests. Requiring a warrant ensures that use of

GPS technology will be limited to circumstances in which law enforcement

has probable cause to believe that criminal activity had occurred or is

occurring and will protect innocent citizens from unwarranted and highly

intrusive police surveillance. Here, however, law enforcement officers

properly obtained valid warrants; thus, evidence obtained through use of

the device was properly admitted. Further, we hold that the trial court

did not abuse its discretion in denying Jackson's motions for a change of

venue or in denying his motion for a new trial and/or arrest of judgment on

the basis of cumulative error. Finally, with regard to the exceptional

sentence imposed, we hold that the aggravating factor of impact of the

crime on the community is a valid factor in this case.

We affirm the Court of Appeals and uphold the judgment and sentence.


1 Jackson does not claim or suggest in his petition for review that the

Fourth Amendment was violated. Accordingly, there is no issue before us

under the Fourth Amendment. There is also no question about whether

chapter 9.73 RCW was violated by installation and use of the GPS devices.

RCW 9.73.260(1)(;)(iii) provides that tracking devices are not

communications within the privacy act.

2 Additionally, as the ACLU points out with regard to the particular GPS

devices used in this case, when the GPS data was downloaded, it provided a

record of every place the vehicle had traveled in the past. Sense

enhancement devices like binoculars and flashlights do not enable officers

to determine what occurred in the past.

3 The Oregon court later said that it did not establish in Campbell a per

se rule that use of any technological advancement automatically violated

the state constitution. State v. Wacker, 317 Or. 419, 426 n.12, 856 P.2d

1029 (1993).

4 This ultimately proved not to be true in fact, and Jackson challenged

inclusion of this information. However, the physician, who had seen

Valiree several times in 1999, did tell the detective that Valiree did not

have pubic hair to his knowledge and had not reached puberty and the

accurate statement of this information in the affidavit was not a


5 For a nearly unbelievable case where media involvement in, coverage of,

and misrepresentation of a case, both pretrial and during trial, obviously

saturated a community, see Shepphard v. Maxwell, 384 U.S. 333, 86 S. Ct.

1507, 16 L. Ed. 2d 600 (1966). Even in that case, however, the Court said

that it could not say that the defendant was denied due process by the

judge's refusal to take precautions against the influence of pretrial

publicity alone; instead, due process was violated by the judge's rulings

in combination with the trial setting (a media circus where, among other

things, reporters were seated within the bar, examined and photographed

trial exhibits lying on counsel tables, hounded the participants including

the defendant, and made so much noise that testimony was often

unintelligible, and hundreds of reporters, cameramen and a helicopter fly-

over accompanied the jury when it viewed the scene of the crime). 384 U.S.

at 354-55.

6 At sentencing, Mr. Jackson's counsel argued against the exceptional

sentence, relying in part on the real facts doctrine. In his appellant's

brief to the Court of Appeals he states that he makes the same argument on

appeal. However, no argument is included, and he has instead attempted to

incorporate the sentencing argument by reference to the record. We decline

to consider these arguments made at trial and the attempted incorporation

of them by reference. See, e.g., U.S. West Communications, Inc. v.

Washington Utils. & Transp. Comm'n, 134 Wn.2d 74, 111-12, 949 P.2d 1337

(1997); State v. Brett, 126 Wn.2d 136, 205-06, 892 P.2d 29 (1995); State v.

Kalakosky, 121 Wn.2d 525, 540 n.18, 852 P.2d 1064 (1993).



Courts | Organizations | News | Opinions | Rules | Forms | Directory | Self-Help | FAQ | Library

Back to Top | Privacy and Disclaimer Notices



Link to comment



It is amazing the amount of bodies discovered by hunters in the US, who are typically the people who leave the beaten trail. I suspect geocachers will find themselves in a similar niche within the next 10 years or so.



This space for rent! Ask about our easy layaway plan!

Link to comment

Originally posted by mckee:



It is amazing the amount of bodies discovered by hunters in the US, who are typically the people who leave the beaten trail. I suspect geocachers will find themselves in a similar niche within the next 10 years or so.



This space for rent! Ask about our easy layaway plan!


But...but...going off-trail is BAD![/sarcasm]



Team A.I.

Link to comment

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.
Note: Your post will require moderator approval before it will be visible.

Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

Followers 0
  • Create New...