State v. Griffith

• Decision Date: 13 September 2005
• Docket Number: No. 22406-6-III.,No. 22405-8-III.,22405-8-III.,22406-6-III.
• Citation: 120 P.3d 610,129 Wn. App. 482
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Aaron Thomas GRIFFITH, Appellant.

120 P.3d 610

129 Wn. App. 482

STATE of Washington, Respondent, v. Aaron Thomas GRIFFITH, Appellant.

No. 22405-8-III.

No. 22406-6-III.

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

September 13, 2005.

COPYRIGHT MATERIAL OMITTED

Donald G. Miller, Attorney at Law, Spokane, WA, for Appellant.

Eric C. Biggar, Douglas County Prosecutor's Office, Waterville, WA, for Respondent.

KURTZ, J.

¶ 1 Aaron Griffith was convicted of possessing child pornography and dealing in child pornography. Claiming the court erred by denying his motion to suppress the search warrant and allowing the State to amend the information after both sides had rested, he appeals. We affirm the court's order denying suppression of the warrant, but reverse the late amendment of the information.

¶ 2 Aaron Griffith hosted a party on the night of April 27, 2001. C.R. attended the party with J.T. Hewitt. C.R. was 16 years old at the time.

¶ 3 C.R. drank several beers at the party. She offered to pose for Mr. Griffith so he could use his new digital camera. She then started to take off her clothes and posed for what some described as seductive pictures. Several people were present at this time. After taking the pictures, Mr. Griffith showed them to others using the viewing window on his camera as well as his computer.

¶ 4 Thereafter, C.R. went to sleep and woke everyone up when she started to scream. Another male party guest was on top of her and she was not dressed from the waist down. She later reported this incident to the police as an attempted rape.

¶ 5 During the attempted rape investigation, the man C.R. accused told the police about the pictures Mr. Griffith had taken. C.R. confirmed that pictures were taken of her in the nude and some were put on a computer.

¶ 6 The police then filed an affidavit for a search warrant for Mr. Griffith's residence. The affidavit indicated that the affiant had interviewed numerous individuals and reviewed police reports. The affiant stated that Mr. Griffith hosted a birthday party at which beer was served. C.R., a minor, was a guest at the party. C.R. was the alleged victim of a rape and, during the investigation of that rape, the police learned Mr. Griffith had taken nude photos of C.R. The pictures were a birthday present to Mr. Griffith.

¶ 7 Based upon the affidavit, a judge issued a search warrant. The warrant indicated there was probable cause to believe evidence of possession of child pornography and possession of pictures of a child engaged in sexually explicit conduct was likely to be found at Mr. Griffith's residence. The warrant permitted the seizure of many items, including computers, all cameras, videotapes, unprocessed film, and storage media.

¶ 8 The police executed the warrant on May 30, 2001, and seized, among other things, numerous computer disks, hard drives, and two cameras. On the hard drives, the police found several pornographic images, some of which appeared to be minors. They also found evidence of a web site where these images were available for download.

¶ 9 On September 21, 2001, the State charged Mr. Griffith with possession of child pornography. On January 9, 2002, the State amended the information to add one count of sexual exploitation of a minor. On February 21, the State filed a second information charging Mr. Griffith with dealing in child pornography pursuant to RCW 9.68A.050(1). The court granted the State's motion to consolidate the two cases.

¶ 10 On January 13, 2003, Mr. Griffith filed a motion to suppress evidence seized during the execution of the search warrant. He argued the affidavit supporting the warrant did not state a crime, the information contained in the affidavit was stale, the affidavit did not show an adequate nexus between the alleged offense and the place to be searched, and the affidavit was not supported by probable cause. The court denied the motion.

¶ 11 Mr. Griffith claims the court erred by denying his motion to suppress on the basis that the search warrant was improperly issued. When reviewing a denial of a CrR 3.6 motion to suppress, we review whether substantial evidence supports the challenged findings of fact and, if so, whether the findings support the conclusions of law. State v. Mendez, 137 Wash.2d 208, 214, 970 P.2d 722 (1999).

¶ 12 Mr. Griffith does not assign error to any of the court's CrR 3.6 findings of fact; rather, he first claims the warrant was invalid because it was not supported by probable cause. In determining the validity of a search warrant, the court considers whether the affidavit, on its face, established probable cause. State v. Perez, 92 Wash.App. 1, 4, 963 P.2d 881 (1998). An affidavit is sufficient to support probable cause if it contains information from which an ordinarily prudent person would conclude a crime has been committed and evidence of a crime can be found at the place to be searched. Id. The standard of probable cause is governed by the probability, rather than a prima facie showing, of criminal activity. In re Pers. Restraints of Yim, 139 Wash.2d 581, 594-95, 989 P.2d 512 (1999) (quoting State v. Seagull, 95 Wash.2d 898, 907, 632 P.2d 44 (1981)). The determination of probable cause is given great deference. Id. (quoting State v. Cole, 128 Wash.2d 262, 286, 906 P.2d 925 (1995)). Affidavits are to be read as a whole, in a commonsense, nontechnical manner, with doubts resolved in favor of the warrant. State v. Casto, 39 Wash.App. 229, 232, 692 P.2d 890 (1984). The determination of probable cause is reviewed for an abuse of discretion. State v. Estorga, 60 Wash.App. 298, 303, 803 P.2d 813 (1991).

¶ 13 Mr. Griffith contends the warrant was invalid because the affidavit did not indicate "sexually explicit" photographs of a minor would be found and, consequently, the affidavit did not suggest any criminal activity was occurring. The affidavit for the warrant indicates that C.R., a minor, posed naked for Mr. Griffith. It states he took pictures and then hooked the camera up to his computer.

¶ 14 We affirm the court's order denying the motion to suppress because the affidavit contains sufficient facts to allege Mr. Griffith committed a crime. Not all possession of nude pictures of minors is illegal. See State v. Grannis, 84 Wash.App. 546, 548-49, 930 P.2d 327 (1997); State v. Huckins, 66 Wash.App. 213, 219, 836 P.2d 230 (1992). But a nude picture of a minor is illegal if it depicts the minor engaged in sexually explicit conduct. Grannis, 84 Wash App. at 548-49, 930 P.2d 327. If a minor is unclothed and the picture is for the sexual stimulation of the viewer, then it meets the definition of sexually explicit conduct. Id. at 549, 930 P.2d 327 (quoting RCW 9.68A.011(3)(e)). The purpose for which the picture of a nude minor is taken determines whether probable cause may be found. Id. at 550, 930 P.2d 327. C.R. said the pictures were taken as a birthday present for Mr. Griffith. The affidavit also noted that others were helping her pose for the pictures. Given our deferential standard of review, the affidavit contains facts sufficient to suggest a crime was committed. The warrant was thus supported by probable cause.

¶ 15 Mr. Griffith next claims the warrant was invalid because it was not sufficiently particular. Search warrants must particularly describe the place to be searched and the items to be seized. State v. Perrone, 119 Wash.2d 538, 545, 834 P.2d 611 (1992) (quoting U.S. CONST. amend. IV). A description is sufficient if it is as specific as the situation and the circumstances permit. Id. at 547, 834 P.2d 611. When a search warrant authorizes the search of material protected by the First Amendment, the degree of particularity is greater than in those situations where the First Amendment is not implicated. Id.

¶ 16 The items sought by the warrant here concerned child pornography. Even though child pornography is not protected by the First Amendment, a heightened degree of particularity is still required. Id. at 550, 834 P.2d 611. The warrant lists several items to be searched for and seized including, all cameras—digital, 35 millimeter, and Polaroid—unprocessed film, all computer processing units and all electronic storage media, documents pertaining to internet accounts, all material depicting a minor engaged in sexually explicit conduct, printed material showing the exposed genitals or rectal area of a minor, videotapes, digital images, and any documents relating to the distribution or receipt of child pornography.

¶ 17 The affidavit stated that Mr. Griffith used a digital camera to take pictures of C.R., who was unclothed in the pictures. The affidavit also indicated he put the pictures on a computer. However, the warrant permits the seizure of a large array of items; most are not supported by probable cause. For example, there was no evidence in the affidavit suggesting that Mr. Griffith put these pictures on the internet, or that he used film, or videotapes. These items are not obviously related to the crime.

¶ 18 A warrant is overbroad when it describes many items, but fails to link some of them to the offense. Perrone, 119 Wash.2d at 555-56, 834 P.2d 611. The warrant here suffers from overbreadth. Under the severability doctrine, only the invalid portions of the warrant must be suppressed. Id. at 556, 834 P.2d 611 (quoting United States v. Fitzgerald, 724 F.2d 633, 637 (8th Cir.1983)). The computer and storage media were specifically named in the warrant and, arguably, are connected to the crime because Mr. Griffith was seen placing the pictures on the computer. This was the only evidence seized used to convict Mr. Griffith. Thus, even though the remainder of the warrant should be suppressed, the evidence that supports his conviction was validly seized. This is not a basis to reverse the convictions.

¶ 19 Mr. Griffith further contends the court erred in denying his motion to dismiss the charge of dealing in child pornography at the close of the State's case. However,...