State v. Askham

• Decision Date: 30 March 2004
• Docket Number: No. 21413-3-III.,21413-3-III.
• Citation: 86 P.3d 1224,120 Wash. App. 872
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Leonard Ralph ASKHAM, Appellant.

86 P.3d 1224

120 Wash. App. 872

STATE of Washington, Respondent, v. Leonard Ralph ASKHAM, Appellant.

No. 21413-3-III.

Court of Appeals of Washington, Division 3, Panel Four.

March 30, 2004.

Scott C. Broyles, Attorney at Law, Clarkeston, WA, for Appellant.

Ann C. Shannon, Deputy Prosecuting Attorney, Colfax, WA, for Respondent.

OPINION PUBLISHED IN PART

SWEENEY, J.

A search warrant must be sufficiently particular to prevent a general exploratory search. This is frequently achieved by specifying the suspected crime. State v. Riley, 121 Wash.2d 22, 28, 846 P.2d 1365 (1993). The search warrant here authorized the seizure of a broad range of computer files and images, but did not specify a crime. We conclude nonetheless that the warrant was specific enough. We also conclude that the evidence was sufficient to support Leonard Askham's convictions for second degree theft, criminal harassment, stalking, and libel. We therefore affirm the judgment.

FACTS

Mr. Askham's relationship with Sue Melhart ended in January 2000. His efforts to revive the relationship failed. Ms. Melhart developed a romantic relationship with her neighbor, Gerald Schlatter. Mr. Schlatter was Facilities Development Director at Washington State University (WSU).

On January 17, 2001, WSU President Lane Rawlins; Greg Royer, Vice President for Business Affairs and Gerald Schlatter's upper level supervisor; and Assistant Attorney General Antoinette Ursich, WSU counsel, received an anonymous e-mail accusing Mr. Schlatter of inappropriate use of a state computer. The e-mail accused Mr. Schlatter of visiting pornography and racist World Wide Web (Web) sites. An administrative investigation concluded the accusations were unfounded.

Mr. Schlatter turned over additional e-mails received on his office computer welcoming him as a member of various porn and racist Web sites. One of the sites—lycos.com—displayed two manufactured images of Mr. Schlatter's face electronically pasted onto a picture of a man receiving oral sex from a young male. The manufactured images were uploaded from an IP (Internet Protocol) address that was assigned to Leonard Askham. A lycos.com "photo center" account was also set up. There, more manufactured sex scenes were posted purportedly featuring Mr. Schlatter. Mr. Schlatter also received anonymous e-mails threatening to ruin his professional and social life and to inform the Federal Bureau of Investigation of these manufactured activities.

These e-mails originated from two locations with public Internet access—a business in Spokane and a public library in Coeur d'Alene, Idaho. With the cooperation of the Internet service provider and the Web site provider, investigators learned that the IP addresses were assigned to a user identified as "askham" at the relevant time. The handwritten account names and passwords were later found in Mr. Askham's home office.

The Pullman Police Department and the university president's office were also mailed hard copies of the manufactured images with a note: "Do you want a man like this, who is also a white spremasist [sic], working for your University?" Ex. 3. The Web site subsequently displayed more homoerotic images purportedly of Mr. Schlatter. The account "askham" was traced to Bird Shield Repellent Corp., with an address and phone number in Pullman belonging to Leonard Askham.

Police obtained a search warrant to seize Mr. Askham's computer and search his residence for evidence relating to all of this. The evidence recovered included an envelope addressed to Mr. Schlatter containing Mr. Schlatter's image and pornographic shots that matched those on the Internet sites. In a trash can searchers found numerous pictures from which the manufactured images had been obtained. A large number of entries of personal information about Mr. Schlatter were found in Mr. Askham's handwriting, as well as documents Mr. Schlatter had disposed of in his trash. Handwritten drafts of the threatening e-mails were also found in Mr. Askham's home office. The investigation of Mr. Askham's computer showed that it had altered the Internet images.

The State charged Mr. Askham with felony harassment, stalking, second degree theft, and libel. He challenged the particularity of the search warrant and moved to suppress the information. The court denied his motion.

The issue before the court at Mr. Askham's bench trial was whether Mr. Askham was the perpetrator. Mr. Askham's defense was that his computer was hacked by some person or persons unknown who wanted to injure Mr. Schlatter and frame Mr. Askham.

The court found the evidence compelling that someone had used Mr. Askham's home, identity, and computer to wage an electronic campaign to destroy Mr. Schlatter. The court found no evidence supporting the existence of a third party with a motive or opportunity to do this. The court then entered findings and conclusions and a judgment of guilt for felony harassment, stalking, second degree theft, and libel.

DISCUSSION

SEARCH WARRANT AFFIDAVIT

The first issue on appeal is whether the search warrant met the Fourth Amendment particularity requirement.

Mr. Askham challenges the sufficiency of the affidavit supporting the search warrant. He argues that neither this search warrant nor the accompanying complaint specify the crimes under investigation. Nor does the warrant specify the particular items to be seized. Although the warrant does mention Mr. Schlatter a couple of times, Mr. Askham contends this is not enough to limit the search to items connected with Mr. Schlatter. Moreover, he contends, a search limited to items relating to Mr. Schlatter is not limited to "criminal activity."

We review the legal sufficiency of a search warrant de novo. State v. Stenson, 132 Wash.2d 668, 691, 940 P.2d 1239 (1997). And we assess the validity of each warrant on a case-by-case basis. State v. Perrone, 119 Wash.2d 538, 546-47, 834 P.2d 611 (1992).

The Fourth Amendment provides that "no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. CONST. amend. IV; Stenson, 132 Wash.2d at 691, 940 P.2d 1239. The purpose of the particularity requirement is to prevent the State from engaging in unrestricted "exploratory rummaging in a person's belongings" for any evidence of any crime. Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The description of the items to be seized should leave nothing to the executing officers' discretion. United States v. Hurt, 795 F.2d 765, 772 (1986), amended on denial of reh'g, 808 F.2d 707 (9th Cir.1987). The officers should be able to "identify the property sought with reasonable certainty." Stenson, 132 Wash.2d at 692, 940 P.2d 1239.

The required degree of particularity may be achieved by specifying the suspected crime. Riley, 121 Wash.2d at 28, 846 P.2d 1365. Otherwise, the warrant must contain some other means of limiting the items to be seized. Id. The description should be as specific as the circumstances permit. Stenson, 132 Wash.2d at 692, 940 P.2d 1239. If the nature of the underlying offense makes descriptive precision impractical, however, generic classifications may be acceptable. Riley, 121 Wash.2d at 28, 846 P.2d 1365 (citing Perrone, 119 Wash.2d at 547, 834 P.2d 611; United States v. Spilotro, 800 F.2d 959, 963 (9th Cir.1986)).

The warrant at issue here does not specifically name the crimes under investigation. But it does describe the suspected criminal activity in some detail. And this description adequately limited the scope of the warrant. The warrant distinguishes those items the State has probable cause to seize from those it does not. See Spilotro, 800 F.2d at 964. Mr. Askham compares the warrant's authority to the following, held to be overbroad in Riley:

"any fruits, instrumentalities and/or evidence of a crime; to-wit:

notes, records, lists, ledgers, information stored on hard or floppy discs, personal computers, modems, monitors, speed dialers, touchtone telephones, electronic calculator, electronic notebooks or any electronic recording device."

Riley, 121 Wash.2d at 26, 846 P.2d 1365. This warrant permits the seizure of "broad categories of material" and is "not limited by reference to any specific criminal activity." Id. at 28, 846 P.2d 1365.

But the warrant here is more particular. The Askham warrant and complaint name Mr. Schlatter, detail the false accusations against him, identify the Web sites, and describe the offending images and threats. The warrant sets forth the evidence establishing probable cause, including the victim's own suspicions and the experts' backtracking through various online activities. The Askham warrant does propose to seize a broad range of computer equipment, central processing units, drives, disks, and other memory storage devices. But it also specifies the material to be searched for on that computer equipment. It lists text files relating to Mr. Schlatter and specific Web sites: lycos.com; hotmail.com; focalex.com; bodybuilding.about.com; eroticamail.com; and davidduke.com. It also specifies text files relating to manipulation of digital images or to uploading them to the Internet. It specifies also graphic images and graphic image files "of Gerald Schlatter; pornographic images including images of men engaged in oral sex, or images of nude men that may have been used in the manufacture of images of Gerald Schlatter uploaded to the internet." Clerk's Papers (CP) at 102. The warrant also authorized seizure of software related to the manipulation of digital images, typewriters, Mr. Askham's fingerprints, a handwriting sample, and certain postage stamps.

The same issue is addressed in State v. Clark.¹ There, the warrant affidavit did not contain the word "kidnap," but it did include enough information that the nature of the crime could be inferred and an officer executing the...