State v. Besola

• Decision Date: 19 May 2014
• Docket Number: No. 71432-5-I,71432-5-I
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. MARK LESTER BESOLA and JEFFREY EDWIN SWENSON, Appellants.

STATE OF WASHINGTON, Respondent, v. MARK LESTER BESOLA and JEFFREY EDWIN SWENSON, Appellants.

No. 71432-5-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

FILED: May 19, 2014

UNPUBLISHED

COX, J. — Mark Besola and Jeffrey Swenson appeal their judgments and sentences for possession of and dealing in depictions of a minor engaged in sexually explicit conduct. The trial court properly denied their motions to suppress evidence seized during the investigation of the crimes of conviction. The challenged jury instructions were properly given by the trial court. There is no showing that the trial court made any comment on the evidence. There was sufficient evidence to support the convictions. There was no abuse of discretion by the trial court in the evidentiary decisions challenged on appeal. The crimes of conviction do not involve the same criminal conduct. But the community custody conditions do not fully conform to the law. We affirm the convictions, but remand for resentencing only on the community custody conditions.

In 2009, law enforcement officers were investigating an informant named Kellie Westfall for criminal activity. She agreed to talk to them about Mark Besola and Jeffrey Swenson. Westfall told officers that Besola and Swenson had been in a relationship and lived together in Besola's house for a number of years.

She said that Besola was a veterinarian who would give Swenson controlled substances, and she observed a variety of these substances throughout the house. Westfall also told the officers that she saw child pornography throughout the house.

Based on Westfall's statements, law enforcement officers sought a warrant to seize both controlled substances and child pornography. The judge who issued the original warrant determined that probable cause existed only for the controlled substances.

During the execution of the warrant for controlled substances, officers observed CDs and DVDs with handwritten titles such as "Czech Boy Swap," "Beginner," and "Young Gay Euro." They did not seize these items but instead sought an addendum to the warrant. A different judge authorized the amendment of the warrant to authorize seizure of this additional evidence.

The warrant amendment identified the crime of investigation for the additional evidence as "Possession of Child Pornography R.C.W. 9.68A.070." Moreover, it authorized the seizure of five broad categories of evidence, including "[a]ny and all videotapes, CDs, DVDs," and "any and all computer hard drives or laptop computers and any memory storage devices," as well as other evidence.

Officers executed the warrant amendment and seized a large number of homemade CDs, DVDs, VHS tapes, computers, and other evidence.

The State charged both Besola and Swenson with possession of depictions of minors engaged in sexually explicit conduct and with dealing in these types of depictions.¹ They were tried together as co-defendants.

The jury convicted them as charged. The court sentenced them both to terms of confinement and also imposed a number of community custody conditions.

These appeals followed.

MOTIONS TO SUPPRESS

Besola and Swenson challenge the validity of the search warrant, as amended. They claim that the trial court erred when it denied their motions to suppress.

They first argue that the search warrant amendment was not sufficiently particular. They next argue that Westfall, the informant who provided the information on which the original search warrant was based, was not credible and could not provide the basis for probable cause required to issue the warrant. Finally, they argue that the officers who obtained the warrant intentionally or recklessly omitted material facts from the supporting affidavit.

We address, in turn, each of these challenges.

Particularity Requirement

Besola and Swenson argue that the warrant amendment is not sufficiently particular. They contend that the warrant amendment did not describe the items to be seized with particularity given First Amendment protections. They also argue that the warrant amendment did not indicate the specific crime being investigated.

The Fourth Amendment mandates that a search warrant describe with particularity the things to be seized.² The purpose of this particularity requirement is "to limit the executing officer's discretion" and "to inform the person subject to the search what items the officer may seize."³ The degree of specificity required necessarily varies "according to the circumstances and the type of items involved."⁴

We review de novo whether a search warrant contains a sufficiently particularized description to satisfy the Fourth Amendment, but we construe the language "in a commonsense, practical manner, rather than in a hypertechnical sense."⁵

In State v. Perrone, the supreme court considered the First Amendment's effect on the particularity requirement.⁶ It explained, "Where a search warrant authorizing a search for materials protected by the First Amendment is concerned, the degree of particularity demanded is greater than in the case where the materials sought are not protected by the First Amendment."⁷ In other words, "such warrants must follow the Fourth Amendment's particularity requirement with 'scrupulous exactitude.'"⁸

Here, there does not appear to be any disagreement among the parties before us that a heightened standard of particularity applies to those items listed in the warrant that are protected by the First Amendment. The search warrant amendment stated in relevant part:

Possession of Child Pornography R.C.W. 9.68A.070

That these felonies were committed by the act, procurement or omission of another and that the following evidence is material to the investigation or prosecution of the above described felony, to-wit:

1. Any and all video tapes, CDs, DVDs, or any other visual and or audio recordings;

2. Any and all printed pornographic materials; . . . .⁹

The items that the court authorized to be seized in this case—"video tapes, CDs, DVDs"—are sufficiently similar to "[b]ooks, films, and the like," that are "presumptively protected by the First Amendment where their content is the basis for seizure."¹⁰ And these prosecutions were based, in large part, on seizure of these items.

Thus, the issue is whether the description—"Possession of Child Pornography R.C.W. 9.68A.070"—satisfies the heightened standard of particularity required for seized evidence that is presumptively protected by the First Amendment.

In Perrone, the supreme court concluded that the search warrant before it was not sufficiently particular partly because it did not specifically reference the crime under investigation.¹¹ There, the warrant at issue authorized the seizure of a number of items.¹² After striking portions of the warrant that were not supported by probable cause, it authorized seizure of "[c]hild . . . pornography; photographs, movies, slides, video tapes, magazines . . . of children . . . engaged in sexual activities . . . ."¹³ The court concluded that the term "child pornography" was an insufficient reference to the crime being investigated.¹⁴ It gave three reasons for this conclusion.

First, the court stated that "child pornography" is an "'omnibus legal description' and is not defined in the statutes."¹⁵ It stated that this term gives law enforcement too much discretion in deciding what to seize and is not "scrupulous exactitude."¹⁶

Second, the court explained that a more particular description than "child pornography" was available at the time the warrant was issued.¹⁷ For example, the language in former RCW 9.68A.011 (1989), which defines "sexually explicit conduct" for the statutory chapter involving sexual exploitation of children, could have been used.¹⁸

Third, the court stated that reference to illegal activity in the form of "child pornography" could not "save" the warrant.¹⁹ The court explained that "so much of the rest of the warrant suffer[ed] from lack of probable cause and frominsufficient particularity."²⁰ "It is simply too much to believe that a term overly general in itself can provide substantive guidance for the exercise of discretion in executing a warrant otherwise riddled with invalidities."²¹

Here, under Perrone, the "Child Pornography'' description in the amended warrant is patently insufficient to satisfy the particularity requirement of the constitution. Moreover, the terms of the statute—possession of depictions of a minor engaged in sexually explicit conduct—were available for use at the time of the issuance of the warrant, as the Perrone court suggested.²² But the more specific terms of the statute were not used in this warrant. For both reasons, this portion of the description fails the particularity requirement that Perrone requires.

Attempting to distinguish this case from Perrone. the State asserts that this warrant contains the statutory citation to "R.C.W. 9.68A.070," whereas the warrant in Perrone did not cite the relevant statute. The State further argues that this citation fulfills the particularity requirement that the constitution imposes for evidence presumptively subject to First Amendment protection.

The year after Perrone, the supreme court, in State v. Riley, clarified that when the items to be seized cannot be precisely described at the time the warrant is issued, "generic classifications such as lists are acceptable."²³ But"[i]n such cases, the search must be circumscribed by reference to the crime under investigation; otherwise, the warrant will fail for lack of particularity."²⁴

Importantly, Riley did not involve evidence entitled to First Amendment protection.²⁵ And that case contains little guidance for this case beyond the general statement in the previous paragraph.

The State also relies heavily on State v. Ollivier to support its position.²⁶ In that case, this court cited Riley when it concluded that a warrant was sufficiently particular in a search for evidence of violation of RCW 9.68A.070.²⁷ This court reasoned in just a few sentences...