OPINION PUBLISHED IN PART
¶1 Justin Ortega appeals his convictions for eight instances of sexual and physical abuse against his girlfriends young daughters.
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He argues the States case was tainted by evidence seized during an unconstitutional cell phone search. We reject this claim. The search occurred pursuant to a warrant that particularly authorized seizure of photographs documenting sexual abuse. And by using forensic technology to extract and organize the cell phones data, law enforcement officers were able to execute the warrant in a way that limited the scope of information that came under their review. We therefore affirm Mr. Ortegas convictions.
FACTS
¶2 In October 2019, nine-year-old J.R. and her sister, eight-year-old M.R., each disclosed—first to a teacher, then to police—that they had suffered physical and sexual abuse at the hands of their mothers boyfriend, Justin Ortega. The State charged Mr. Ortega with five counts of first degree rape of a child, two counts of first degree child molestation, and one count of third degree assault of a child.
¶3 During the police investigation, M.R. related that Mr. Ortega had recorded images of his assaultive conduct on his cell phone. Based on this disclosure, law enforcement believed Mr. Ortegas cell phone probably contained evidence of the crimes with which he was charged. The police subsequently obtained possession of the cell phone from a family member, who voluntarily turned it over to police.
¶4 Detective Curtis Oja of the Yakima Police Department applied for a search warrant to examine the contents of the phone. The superior court granted a warrant, authorizing police to search Mr. Ortegas cell phone and seize any images or videos depicting Mr. Ortega engaged in “sexual contact” with M.R., as well as any information identifying the owner of the device. Clerks Papers (CP) at 63, 66.
¶5 Pursuant to the warrant, police searched the phone and seized 35 images, some showing Mr. Ortega as the devices owner (for example, selfies taken by Mr. Ortega), some showing him engaged in sexual contact with M.R., and one showing him engaged in sexual contact with J.R.
¶6 Mr. Ortega moved to suppress the fruits of the cell phone search. He argued that the warrant was insufficiently particular, in violation of the state and federal constitutions. The trial court held an evidentiary hearing on the motion and the State presented testimony from detectives Curtis Oja and Kevin Lee.
¶7 According to the testimony, officers began the search by connecting Mr. Ortegas phone to an extraction device known as the “Cellebrite Touch.” 1 Rep. of Proc. (RP) (Nov. 9, 2022) at 90. Detective Lee then ran an extraction that allowed the files on Mr. Ortegas phone to be organized into categories (for example, messages, images, etc.). Once extracted, data is not visible unless someone opens the individual category folders through Cellebrites physical analyzer program. See id. at 91-92. Neither Detective Lee nor Detective Oja recalled reviewing anything besides photos and videos.
¶8 Detective Lee was asked, “are you able to” simply type in “8-year-old girl, sexual contact and only remove” those images “from [the phone?]” Id. at 98. Detective Lee responded, “No. ․ Its just not possible.” Id. He clarified that it would be possible to run a search directing the program to extract solely images, instead of all of the phones data, but such an extraction would be incomplete because it would not gather deleted images. Detective Lee also agreed that it was technically possible to search the phone manually for the authorized images, given that the phone had no passcode. But he explained that “best practice dictates that hand searches occur after a forensic search is conducted, that way theres no chance that you would delete or change any data.” Id. at 110. Detective Oja explained that the forensic extraction process “preserves [the cell phone] in the same format that it was at the time it was searched.” Id. at 139.
¶9 After the data extraction, Detective Lee gave Detective Oja a thumb drive containing more than 5,000 extracted images. Detective Oja agreed that it was similar to being given a physical photo album and having to flip through the pages to find what you are looking for. As he explained, “Somebody has to manually go through and identify which images ․ depict sexual contact.” Id. at 136. Detective Oja explained that after he seized 35 images, M.R. and J.R. identified themselves in the photographs they were shown.
¶10 The trial court denied Mr. Ortegas motion to suppress the images seized from his cell phone.
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Mr. Ortega subsequently waived his right to a jury trial and his case was tried to the bench. The court found Mr. Ortega guilty as charged. At sentencing, the court imposed an indeterminate life sentence with a minimum of 299 months’ confinement. As to legal financial obligations, the court found Mr. Ortega was indigent and imposed the then-mandatory $500 crime victim penalty assessment (VPA) and $100 DNA collection fee.
¶11 Mr. Ortega timely appeals.
ANALYSIS
Cell phone search
¶12 Mr. Ortega contends we should reverse his convictions and remand with instructions to grant his suppression motion. He argues (1) the search warrant was insufficiently particular, and (2) police exceeded the scope of the warrant. We discuss each contention in turn.
1. Whether the warrant failed the particularity requirement
¶13 “Both the Fourth Amendment [to the United States Constitution] and article I, section 7 [of the Washington Constitution] require that a search warrant describe with particularity the place to be searched and the persons or things to be seized.”
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See State v. Vance, 9 Wash. App. 2d 357, 363, 444 P.3d 1214 (2019). The particularity requirement, which aims to prevent generalized rummaging through a suspects private affairs, “is of heightened importance in the cell phone context,” given the vast amount of sensitive data contained on the average users smartphone device. State v. Fairley, 12 Wash. App. 2d 315, 320, 457 P.3d 1150 (2020). Whether a warrant satisfies the particularity requirement is a constitutional issue that is reviewed de novo. Id. at 321.
¶14 The purposes of the particularity requirement are to prevent a general search, limit the discretion of executing officers, and ensure that items to be searched or seized are supported by probable cause. State v. Perrone, 119 Wash.2d 538, 545, 834 P.2d 611 (1992). When reviewing whether a warrant satisfies the requirement, we do not take a hypertechnical approach. Id. at 549, 834 P.2d 611. Rather, we interpret a warrant “in a commonsense, practical manner.” Id.
¶15 The warrant here easily satisfies the particularity requirement. It directed officers to “search” the phone and “seize ․ images and/or videos depicting Justin Ortega engaged in sexual contact with” an eight-year-old, along with “information identifying the owner of the device.”
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CP at 66. This did not permit a general rummaging; it was akin to a warrant allowing a search of a residence for controlled substances and indicia of ownership. The terms of the warrant were sufficiently descriptive to direct the actions of law enforcement; the warrant only allowed for a search of areas of the phone where the officer might find photos or indicia of ownership. And, as set forth in the warrant, there was probable cause
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to believe that images of Mr. Ortega assaulting M.R. would be found on the phone and that the phone belonged to Mr. Ortega.
¶16 Mr. Ortega complains that the warrant authorized a wholesale data dump of information on his phone. But this issue goes to how the warrant was executed. The warrant itself did not mention broad swaths of cell phone data. Cf. State v. McKee, 3 Wash. App. 2d 11, 19, 29, 413 P.3d 1049 (2018) (holding warrant specifying broad categories of cell phone data not connected to charged crimes was overbroad), revd on other grounds, 193 Wash.2d 271, 438 P.3d 528 (2019). Nor did the warrant specify a forensic method for how officers were to search Mr. Ortegas phone. Thus, Mr. Ortegas complaints about the data dump go not to the issue of particularity, but to the officers’ execution of the warrant.
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2. Whether officers exceeded the scope of the warrant
¶17 Execution of a search warrant must be strictly tied to “the scope of the warrant.” State v. Witkowski, 3 Wash. App. 2d 318, 325, 415 P.3d 639 (2018). Our review of whether a particular search has met this constitutional mandate is de novo. Id. at 324, 415 P.3d 639.
¶18 “ ‘[A] computer search may be as extensive as reasonably required to locate items described in the warrant’ based on probable cause.” United States v. Burgess, 576 F.3d 1078, 1092 (10th Cir. 2009) (quoting United States v. Grimmett, 439 F.3d 1263, 1270 (10th Cir. 2006)). The scope of a search can be limited by identifying targeted content. Id. at 1093. When a warrant authorizes a search for a particular item, the scope of the search “ ‘generally extends to the entire area in which the object of the search may be found.’ ” Witkowski, 3 Wash. App. 2d at 325-26 (quoting United States v. Ross, 456 U.S. 798, 820-21, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982)).
¶19 The record here shows detectives Oja and Lee properly limited the scope of their search to the terms of the warrant. The images of M.R. could have been located almost anywhere on Mr. Ortegas cell phone—not only in a photos application, but also in e-mails and text messages. Had the detectives chosen to search Mr. Ortegas phone manually, they likely would have needed to sort through data other than images in order to find the targets of their search. And they would have risked jeopardizing the evidentiary integrity of the phone. See United States v. Ganias, 824 F.3d 199, 215 (2d Cir. 2016) (recognizing that, when dealing with digital evidence, “[p]reservation of the original medium or a complete mirror may ․ be necessary in order to safeguard the integrity of evidence” and “afford criminal defendants access to that medium or its forensic copy”); State v. Grenning, 169 Wash.2d 47, 60-61, 234 P.3d 169 (2010) (holding defendant was entitled to “mirror image copy” of the data on his hard drives seized by law enforcement). By instead using forensic software, the detectives were able to organize the data from Mr. Ortegas phone without first viewing the phones contents. This enabled them to limit their search to data labeled as photos and videos, thus restricting the scope of the search to areas where the target of the search could be found.
¶20 Mr. Ortega laments that, due to the extraction method used by police, “the entire contents of the phone” were “available” to police. Appellants Br. at 7-8. But it is unclear how the mere availability of the data constituted an intrusion into Mr. Ortegas “private affairs” absent any indication that law enforcement in fact looked at data besides that which they were authorized to examine. Wash. Const. art. I, § 7. The phone was not password protected; its contents were therefore “available” to law enforcement the moment it came into their possession. Appellants Br. at 7. But a seizure is not the same as a search. See Fairley, 12 Wash. App. 2d at 321-22. Here, the extraction process did not, by itself, enable law enforcement to view the entire contents of Mr. Ortegas phone. It was still necessary to open up the individual data-type folders created through the extraction process. By using forensic software to extract and organize data from Mr. Ortegas phone, the detectives were able to minimize their review of the phone contents and tailor their search to the evidence authorized by the warrant. This did not violate Mr. Ortegas constitutional rights. See United States v. Mann, 592 F.3d 779, 784 (7th Cir. 2010).
¶21 Mr. Ortegas convictions are affirmed.
¶22 The panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports, and that the remainder having no precedential value, shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.
VPA and DNA collection fee
¶23 Mr. Ortega contends, and the State concedes, that the VPA should be struck on remand. The legislature amended the VPA statute by passing Engrossed Substitute House Bill 1169, with the amendments taking effect July 1, 2023. See State v. Ellis, 27 Wash. App. 2d 1, 16, 530 P.3d 1048 (2023) (citing Laws of 2023, ch. 449, § 1). The statute now prohibits courts from imposing the VPA on defendants, like Mr. Ortega, who have been found to be indigent, and requires courts to waive any VPA imposed before the effective date, on the offenders motion, if the offender is unable to pay. See RCW 7.68.035(4), (5)(b). We therefore accept the States concession and remand with instructions to strike the VPA from Mr. Ortegas judgment and sentence.
¶24 Mr. Ortega also contends, and the State concedes, that the DNA collection fee should be struck on remand, pursuant to legislative changes. We also accept this concession and remand with instructions to strike the DNA collection fee. See Ellis, 27 Wash. App. 2d at 17, 530 P.3d 1048 (citing LAWS OF 2023, ch. 449, § 4).
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
¶25 Mr. Ortega filed a pro se statement of additional grounds for review (SAG). See RAP 10.10(a). Mr. Ortegas SAG raises 14 points. Each is addressed in turn.
¶26 First, Mr. Ortega writes that “[o]nly M.R. stated any phone activity happening. ․ J.R. never once said that there was any phone activity involved.” SAG at 2. This “does not inform the court of the nature and occurrence of” an “alleged error[ ].” RAP 10.10(c). Thus, we “will not consider” it. Id. To the extent Mr. Ortega is complaining that the warrant did not authorize seizure of any images of J.R., the image of J.R. was discovered in plain view while searching for images of M.R., and it obviously depicted an unlawful act. Its seizure was therefore lawful. See State v. Temple, 170 Wash. App. 156, 164, 285 P.3d 149 (2012).
¶27 Second, Mr. Ortega asks us to upend the trial courts conclusion that the victims were credible, based on a comment M.R. made during her cross-examination. But we may not disturb a trial courts credibility determinations. See, e.g., State v. Truong, 168 Wash. App. 529, 534, 277 P.3d 74 (2012); see also CP at 141 (trial courts finding that the childrens “detailed descriptions” of their abuse were “highly credible”).
¶28 Third, Mr. Ortega complains that police interviewed J.R. twice and that only the second interview was admitted into evidence. This does not “allege[ ]” an “error.” RAP 10.10(c).
¶29 Fourth, Mr. Ortega complains that “[t]he warrant was not clear in particulars.” SAG at 3. This issue was adequately briefed by counsel, so need not be considered further. See RAP 10.10(a); State v. Thompson, 169 Wash. App. 436, 492-93, 290 P.3d 996 (2012).
¶30 Fifth, Mr. Ortega contends the victims’ aunt found information about the case posted on the Internet. This does not “allege[ ]” an “error.” RAP 10.10(c).
¶31 Sixth, Mr. Ortega alleges his trial counsel and trial counsels paralegal “told” him he “could not read/go over ․ discovery.” SAG at 4. Assuming this contention is that trial counsel performed ineffectively, it involves a factual allegation outside the record on review. Therefore, Mr. Ortegas remedy, if any, is to seek relief by collateral attack. See State v. McFarland, 127 Wash.2d 322, 338 n.5, 899 P.2d 1251 (1995).
¶32 Seventh, Mr. Ortega complains that his trial counsel never hired a technician “to look into the phone.” SAG at 4. Again, assuming Mr. Ortega is making a claim of ineffective assistance, such claim involves matters outside this record, so it cannot be resolved on direct appeal. See McFarland, 127 Wash.2d at 338 n.5, 899 P.2d 1251.
¶33 Eighth, Mr. Ortega complains that the trial court repeatedly continued trial over his objections. The record indicates trial was continued five times over Mr. Ortegas objections. See CP at 15-17, 21, 114. “In both criminal and civil cases, the decision to grant or deny a motion for a continuance rests within the sound discretion of the trial court.” State v. Downing, 151 Wash.2d 265, 272, 87 P.3d 1169 (2004). Thus, we review a continuance for abuse of discretion. See id. A trial court abuses its discretion where its decision was based on untenable grounds or reasons or was otherwise manifestly unreasonable. See Willapa Trading Co. v. Muscanto, Inc., 45 Wash. App. 779, 785, 727 P.2d 687 (1986). Here, each time the trial court continued trial, it had a tenable reason for doing so: On three occasions, Mr. Ortegas counsel plausibly explained he needed more time to prepare in order to render effective assistance; on one occasion, the defense and the State plausibly agreed they needed additional time to prepare because plea negotiations had recently fallen through; and on the final occasion, the trial prosecutor tested positive for COVID-19 mere days before the scheduled start of trial. See 1 RP (Jul. 23, 2021) at 5-6; 1 RP (Jan. 14, 2022) at 9; 1 RP (May 11, 2022) at 12-15; 1 RP (Jul. 29, 2022) at 16, 21; 1 RP (Oct. 17, 2022) at 28. Given these tenable reasons for continuances, Mr. Ortega has not identified any abuse of discretion. Nor does he articulate any argument that a constitutional violation flowed from the continuances.
¶34 Ninth, Mr. Ortega complains that M.R. and J.R. were not medically examined. But medical evidence was not required. See RCW 9A.44.020(1).
¶35 Tenth, Mr. Ortega baldly claims “[t]he photos admitted as evidence do not show” him “performing any sexual acts.” SAG at 5. But the trial court looked at the images, was able to see Mr. Ortega in court, and was persuaded the man in the images was him. We may not disagree with a trial courts assessment of the persuasiveness of evidence. See Truong, 168 Wash. App. at 534, 277 P.3d 74.
¶36 Eleventh, Mr. Ortega claims the children had “past sexual encounters” that his attorney “failed to address.” SAG at 5. This does not “allege[ ]” an “error.” RAP 10.10(c).
¶37 Twelfth, Mr. Ortega complains that the final trial continuance was expressly granted so the trial prosecutor could recover from COVID-19, but that “the prosecutor added that he needed time to interview Det[ective] Lee,” indicating that, in addition to their illness, the trial prosecutor actually was not ready. SAG at 5. Mr. Ortega misreads the record. The continuance was requested and granted solely on the basis of the prosecutors illness. Detective Lee became relevant because his scheduling conflicts made setting a new trial date challenging, not because the prosecutor still needed to conduct an interview with him.
¶38 Thirteenth, Mr. Ortega baldly asserts the trial prosecutor has been charged with various crimes. This contention both relies on facts outside the record on review and fails to allege an error. We must decline to consider it. See RAP 10.10(c); McFarland, 127 Wash.2d at 338, 899 P.2d 1251.
¶39 Fourteenth, Mr. Ortega complains that, in summation, the prosecutor argued Mr. Ortega must have taken the photos of himself performing sexual acts on the children for the purposes of sexual gratification. This does not “allege[ ]” an “error.” RAP 10.10(c).
CONCLUSION
¶40 Mr. Ortegas convictions are affirmed. We remand for the limited purpose of striking the VPA and DNA collection fee from the judgment and sentence. Resentencing is not required.
FOOTNOTES
1
. To protect the privacy interests of the minor children, we refer to them by their initials throughout this opinion. See Gen. Order 2012-1 of Division III, In re Use of Initials or Pseudonyms for Child Victims or Child Witnesses (Wash. Ct. App. Jun. 18, 2012), https://www.courts.wa.gov/appellate_trial_courts/?fa=atc.genorders_orddisp&ordnumber=2012_001&div=III.
2
. The court granted the suppression motion in one narrow respect, ruling that it would not consider any of the “EXIF” (exchangeable image file format) data associated with the extracted images. 1 RP (Nov. 14, 2022) at 178. While Detective Oja had asked for permission to seize EXIF data, the warrant itself—perhaps inadvertently—did not include EXIF data in its authorization. EXIF data is metadata that can help precisely identify when an image was captured.
3
. Mr. Ortega emphasizes that our state constitution “provides for broader privacy protections than” its federal counterpart. State v. Z.U.E., 183 Wash.2d 610, 618, 352 P.3d 796 (2015). This is certainly true and explains why the state constitution is less forgiving of warrantless searches. See, e.g., State v. Hendrickson, 129 Wash.2d 61, 69 n.1, 917 P.2d 563 (1996). However, Mr. Ortega cites no authority indicating that our state constitution imposes a stricter particularity requirement.
4
. While the warrant here only authorized seizure of images of Mr. Ortega engaged in sexual contact with M.R., the image of Mr. Ortega engaged in sexual contact with J.R. was properly seized under the plain view doctrine. See State v. Temple, 170 Wash. App. 156, 164, 285 P.3d 149 (2012) (“Under the plain view doctrine, an officer must (1) have a prior justification for the intrusion, (2) inadvertently discover the incriminating evidence, and (3) immediately recognize the item as contraband.”). Law enforcement had a prior justification for the intrusion into the photo album on Mr. Ortegas phone: the warrant. And while executing that warrant, law enforcement inadvertently discovered an image of Mr. Ortega engaged in sexual contact with J.R., a nine-year-old, which any reasonable observer would immediately recognize as contraband.
5
. Mr. Ortega has never challenged the existence of probable cause.
6
. Arguably, Mr. Ortega did not preserve an objection to the execution of the warrant. During the suppression hearing in superior court, his only complaint pertained to whether the warrant particularly described items to be seized. Nevertheless, the State does not claim this issue has been waived.
Pennell, J.
WE CONCUR:
Lawrence-Berrey, C.J.
Staab, J.