## Facts

- Rebecca Presler was about six months pregnant and had two young children.
- Child Protective Services (CPS), part of Washington’s Department of Social and Health Services, received a report that Presler was using methamphetamine while pregnant and around her children.
- CPS investigated, placed the children with Presler’s mother, and required Presler to participate in substance-abuse treatment.
- After CPS learned Presler was not complying with treatment requirements, CPS notified law enforcement.
- Police obtained and executed a search warrant at Presler’s home, where officers found methamphetamine and drug paraphernalia.
- Later the same day, Nicole Reed, a CPS employee, took Presler to a hospital for a drug test connected to the CPS matter.
- The hospital test was positive for methamphetamine, and Reed reported the result to law enforcement.
- Presler was charged with possession of methamphetamine and proceeded to jury trial.
- Trial counsel did not move to suppress the hospital drug-test result before trial, and the result was admitted at trial.
- Presler was convicted and appealed, arguing ineffective assistance of counsel based on the failure to seek suppression, asserting the test should have been excluded (including on psychologist-patient privilege grounds).

## Issues

1. Whether Presler received ineffective assistance of counsel when trial counsel did not move to suppress the hospital drug-test result obtained through CPS and later reported to law enforcement.
2. Whether Presler could show Strickland prejudice by establishing that a suppression motion likely would have been granted (including based on psychologist-patient privilege or dependency-related confidentiality limits) and that exclusion likely would have changed the verdict.

## Decision

- The Court of Appeals affirmed Presler’s conviction.
- The court held Presler failed to show prejudice because she did not demonstrate that the trial court likely would have suppressed the drug-test evidence.
- The court relied in part on the statutory framework requiring CPS employees to report to law enforcement when they have reasonable cause to believe a child has suffered abuse or neglect, which supported the lawfulness of CPS reporting the positive test.

## Legal Principles

- Ineffective assistance of counsel requires (1) deficient performance and (2) prejudice—a reasonable probability of a different outcome absent counsel’s error. (*Strickland*.)
- When ineffective assistance is based on the failure to file a suppression motion, the defendant must show the motion likely would have been granted; otherwise, the defendant cannot establish prejudice.
- Statutes imposing mandatory reporting duties on CPS workers for suspected child abuse or neglect can authorize CPS communications with law enforcement and weaken suppression arguments based on confidentiality or privilege.
- A defendant must connect the asserted privilege or confidentiality rule to an exclusion remedy in the criminal case and show it applies to the challenged evidence on the case record.

## Conclusion

The court affirmed Presler’s methamphetamine possession conviction because she did not establish Strickland prejudice: on this record she failed to show that a motion to suppress the CPS-directed hospital urinalysis result, or related testimony about it, likely would have succeeded, including under the psychologist-patient privilege theory she advanced on appeal.


State v. Presler, 2015 Wash. App. LEXIS 1356 (2015)