State v. Besola
| Decision Date | 05 November 2015 |
| Docket Number | No. 90554–1.,90554–1. |
| Citation | 359 P.3d 799,184 Wash.2d 605 |
| Parties | STATE of Washington, Respondent, v. Mark Lester BESOLA, Petitioner. State of Washington, Respondent, v. Jeffrey Edwin Swenson, Petitioner. |
| Court | Washington Supreme Court |
Suzanne Lee Elliott, Attorney at Law, Kathryn A. Russell Selk, Russell Selk Law Office, Seattle, WA, for Petitioner.
Stephen D. Trinen, Jason Ruyf, Pierce County Prosecutor's Office, Tacoma, WA, for Respondent.
¶ 1 The Fourth Amendment to the United States Constitution requires warrants to “particularly describ[e] the place to be searched, and the persons or things to be seized.” That requirement is heightened if the warrant authorizes a search for materials protected by the First Amendment to the United States Constitution. Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965). In this case, we are asked to evaluate a search warrant in a prosecution for possession of and dealing in depictions of minors engaged in sexually explicit conduct. For guidance, we look to a 1992 case, State v. Perrone, 119 Wash.2d 538, 834 P.2d 611 (1992), that involved similar circumstances. We unanimously held that the Perrone warrant failed to meet the particularity requirement of the Fourth Amendment, in part because it provided for the seizure of items that were legal to possess, such as adult pornography. That holding is binding in this case, where the warrant similarly provided for the seizure of items that were legal to possess. The State contends that the warrant in this case is saved by a citation to the child pornography statute at the top of the warrant. The State is incorrect because the statutory citation does not modify or limit the items listed in the warrant, so it does not save the warrant from being overbroad. More importantly, the State's position conflicts with our reasoning in Perrone and would hinder the goals of the warrant particularity requirement. Because the warrant fails to meet the Constitution's particularity requirement, we must reverse these convictions.
¶ 2 Mark Besola and Jeffrey Swenson lived together in Besola's house. After a friend of Swenson's, Kellie Westfall, was arrested, she told police that she had seen drugs and child pornography at Besola's house. Besola was a veterinarian, and Westfall said that he provided prescription drags from his veterinary clinic to Swenson, who was a drag addict.
¶ 3 Based on the information provided by Westfall, a judge issued a search warrant for illegal drugs but declined to issue a search warrant related to child pornography at that time. At the scene, police saw CDs (compact disks) and DVDs (digital video disks) with handwritten titles that implied that they contained child pornography. On the basis of this observation, police requested and obtained an addendum to the search warrant.
¶ 4 The language of that amended warrant (and whether it was sufficiently particular) is at the heart of the legal issue in this case. The warrant indicated that the crime under investigation was “Possession of Child Pornography R.C.W. 9.68A.070.” Clerk's Papers (CP) at 312 (boldface omitted). The warrant indicated that “the following evidence is material to the investigation or prosecution of the above described felony”:
Id. (boldface omitted). Police seized a number of computers, memory storage devices, CDs, and DVDs. They ultimately found child pornography on one computer and on 41 disks with handwritten titles. They also found a DVD duplicating device (also known as a DVD burner) attached to the computer. Some disks contained duplicated copies of the child pornography. A handwriting expert testified that Besola's handwriting was on at least one of the disks containing child pornography and that indications of both Besola's and Swenson's handwriting were on multiple other disks.
¶ 5 Besola and Swenson were each charged with and convicted of two crimes: possession of depictions of minors engaged in sexually explicit conduct and dealing in such depictions.
¶ 6 Besola and Swenson appealed, raising a number of issues. The Court of Appeals affirmed their convictions. State v. Besola, noted at 181 Wash.App. 1013, 2014 WL 2155229, at *19. Besola and Swenson petitioned for review on a number of issues, but we granted review “only as to the warrant and ‘to convict’ instructions.” Order Granting Review, State v. Besola, No. 90554–1 (Wash. Nov. 5, 2014); State v. Besole, 181 Wash.2d 1014, 337 P.3d 325 (2014). Given our holding on the warrant issue, we need not address the “to convict” instruction issue.
¶ 7 Did this search warrant meet the Fourth Amendment's particularity requirement?
¶ 8 Search warrants must describe the items to be seized with particularity. U.S. Const . amend. IV. The search warrant in this case contained broad descriptions of the items to be seized (e.g., “[a]ny and all printed pornographic materials” and “[a]ny photographs, but particularly of minors”). CP at 312 (boldface omitted). Under our holding from Perrone, these descriptions were overbroad because they allowed officers to seize lawfully possessed materials, such as adult pornography, when the descriptions could easily have been made more particular. The State argues that the warrant is saved by a citation to the child pornography statute at the top of the warrant. As explained below, the State is incorrect. The statutory citation does not modify or limit the items listed in the warrant, so it does not save the warrant from being overbroad. Furthermore, adopting the State's argument would be contrary to our reasoning in Perrone, and would hinder the goals of the warrant particularity requirement.
¶ 9 The Fourth Amendment requires that search warrants “particularly describ [e] the place to be searched, and the persons or things to be seized.” U.S. Const . amend. IV. As this court has explained, “The purposes of the search warrant particularity requirement are the prevention of general searches, prevention of the seizure of objects on the mistaken assumption that they fall within the issuing magistrate's authorization, and prevention of the issuance of warrants on loose, vague, or doubtful bases of fact.” Perrone, 119 Wash.2d at 545, 834 P.2d 611.
¶ 10 Warrants “ ‘must enable the searcher to reasonably ascertain and identify the things which are authorized to be seized.’ ” Id. at 546, 834 P.2d 611 (quoting United States v. Cook, 657 F.2d 730, 733 (5th Cir.1981) ). By describing the items to be seized with particularity, the warrant limits the discretion of the executing officer to determine what to seize. Id.
¶ 11 This court has also recognized that one purpose of a warrant is “to inform the person subject to the search what items the officer may seize.” State v. Riley, 121 Wash.2d 22, 29, 846 P.2d 1365 (1993).
¶ 12 Warrants for materials protected by the First Amendment require a heightened degree of particularity. Perrone, 119 Wash.2d at 547–48, 834 P.2d 611 (quoting Stanford, 379 U.S. at 485, 85 S.Ct. 506 ). In such cases, the particularity requirement must be “ ‘accorded the most scrupulous exactitude.’ ” Id. at 548, 834 P.2d 611 (quoting Stanford, 379 U.S. at 485, 85 S.Ct. 506 ).
¶ 13 The defendants are correct that the portions of the warrant related to printed materials are insufficiently particular under our holding from Perrone. The State argues that a citation to the child pornography statute at the top of the warrant effectively circumscribes the entire warrant, making it sufficiently particular. As described in further detail below, this argument fails because that statutory reference did not modify or limit the items that officers could seize pursuant to the warrant.
¶ 14 In the 1992 Perrone, case, we evaluated a search warrant in a prosecution for the same two charges as this case—possession of and dealing in depictions of minors engaged in sexually explicit conduct. We unanimously held that the warrant failed to meet the Fourth Amendment's particularity requirement. Because both parties point to Perrone as the most important case on this issue, it is important to understand the facts and reasoning of that case.
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