State v. Kasold

• Decision Date: 17 April 1974
• Docket Number: No. 2819,2819
• Citation: 110 Ariz. 563,521 P.2d 995
• Parties: The STATE of Arizona, Appellee, v. Robert Take KASOLD, Appellant.
• Court: Arizona Supreme Court

Page 995

521 P.2d 995

110 Ariz. 563

The STATE of Arizona, Appellee, v. Robert Take KASOLD, Appellant.

No. 2819.

Supreme Court of Arizona, In Division.

April 17, 1974.

Gary K. Nelson, Atty. Gen., by Shirley H. Frondorf, Special Asst. Atty. Gen., Phoenix, for appellee.

Derickson & Kemper, by James Hamilton Kemper, Phoenix, for appellant.

CAMERON, Vice Chief Justice.

This is an appeal from sentences only after jury verdicts and judgments of guilt to six counts of rape, second degree, § 13--611(B), as amended 1962, and § 13--614(B) A.R.S., together with sentences as to each count of not less than fifteen years nor more than life, all sentences to run concurrently.

We need consider only one question on appeal and that is whether the search of the defendant's premises was made as a result of a constitutionally infirm search warrant. The facts necessary for a determination of this matter on appeal are as follows. In December of 1972, a female student at North Phoenix Union High School in Phoenix, Arizona, told school authorities that during the previous spring she and another student had engaged in sexual activities with the defendant, Robert Kasold, an English teacher at the high school. The school authorities interrogated the other student and the police were called to conduct a further investigation. On the 2nd day of January, 1973, an affidavit in support of a request for a search warrant was filed with Justice of the Peace Al Flood. The affidavit, after describing the name of the defendant and the places to be searched (the apartment and the automobile), contained the following:

'That the following facts establish probable cause for believing that grounds for the issuance of a search warrant for the aforementioned items exist:

'Two 17 year old female students from North Phoenix High School have revealed that they were sexually involved with MR. ROBERT KASOLD, a teacher at the school. Their involvement lasted from March until July, 1972. During this time the suspect took numerous photographs of the victims and himself in sexual activity.

'Between the dates December 20 and December 21, 1972, the affiant learned the following information in the following manner:

'Your affiant is a Police Detective for the City of Phoenix Police Department assigned to the Crimes against Persons Detail, and has recently been involved in an investigation concerning illicit sexual activity involving a high school teacher, Robert Kasold. During the course of this investigation your affiant personally interviewed two 17 year old females who are students at North Phoenix High School where Mr. Kasold is employed as a teacher.

'Both of these young girls told your affiant that they had been engaged in sexual activities with Mr. Kasold. This activity included hetro-sexual intercourse, fellatio, cunnilingus and sodomy. This activity took place in a house trailer located in the 1600 block East Thomas, in Mr. Kasold's classroom and in his vehicle. During these periods of sexual activities, Mr. Kasold took photographs depicting the activity, in addition Mr. Kasold caused these two students to write stories concerning their sexual life.

'Frequently during the sexual activity Mr. Kasold used a blue and white vibrator to stimulate the girls sexually.

'Also during some of the periods of sexual activity the girls themselves took photographs. Some of these photographs were removed by the girls and subsequently shown to a classmate.

'These girls further told your affiant that Mr. Kasold keeps some of the photographs in his classroom. He keeps others in his vehicle and others in his apartment located at 5105 North 40th Street, Apt. E-425.

'During the course of this investigation, your affiant has personally determined that Mr. Kasold is, in fact, a teacher employed by North High School and that he does in fact now reside at 5105 North 40th Street, Apt. E-425, and further that Mr. Kasold possesses a vehicle that is a 1968 Citron bearing Arizona license MMD-942.

'Further investigation into this matter by your affiant has revealed that prior to this time Mr. Kasold's activity as it relates to dealing with his students has been the subject of concern by various school administrators and that he has been the subject of psychological counselling.

'Further investigation has revealed that Mr. Kasold has spent an unusually large amount of time engaging in extra-curricular activities with the students.

'Your affiant has personally spent several hours in meticulously examining statements given by these two females and feels confident that the allegations by the girls in this matter are true.

'On 1/2/73 one of the young girls was examined by means of a polygraph regarding the above allegations. The results of this poylgraph indicate that she has been truthful in her statements.

'Investigation also revealed that suspect has written stories about his sexual activity and has pursuaded the young girls to write stories describing their sexual activity. This writing is believed to be in the possession of the suspect at this time.'

As the result of the search warrant, between 500 and 600 photographs of a sexual nature, as well as books and other sex-related paraphernalia were obtained. Included in the photographs were pictures of the two victims involved in this particular case, as well as a roll of film upon which the conviction of the defendant in the companion case, State v. Kasold, 110 Ariz. 558, 521 P.2d 990, filed this day, was based.

The defendant made a timely motion to suppress all of these items based upon the ground that the seizure was an unlawful search and seizure in violation of the Fourth and ...