State v. Lodge

• Decision Date: 20 December 1985
• Docket Number: No. 16045-1-I,16045-1-I
• Citation: 711 P.2d 1078,42 Wn.App. 380
• Parties: STATE of Washington, Respondent, v. Robert C. LODGE, Appellant.
• Court: Washington Court of Appeals

Page 380

42 Wn.App. 380

711 P.2d 1078

STATE of Washington, Respondent, v. Robert C. LODGE, Appellant.

No. 16045-1-I.

Court of Appeals of Washington,

Division 1.

Dec. 20, 1985.

Doherty & Levy, Gilbert H. Levy, Seattle, for appellant.

Norman K. Maleng, King Co. Pros. Atty., Richardo S. Martinez, Deputy, Seattle, for respondent.

SWANSON, Judge.

Robert C. Lodge (Lodge) appeals his conviction and sentence for possession with the intent to distribute obscene material involving minors engaged in sexually explicit conduct, a violation of RCW 9.68A.030 (repealed 1984). He asserts several trial court errors.

On May 31, 1983, a search warrant issued by a Seattle District Court judge was executed at Lodge's Seattle residence. The warrant was based upon Seattle Police Detective Thomas Dittmar's affidavit, which contained the following information. In May, 1983, Det. Dittmar attended an FBI seminar on children's sexual exploitation, where he learned that since the passage of strict federal laws governing the sale of child pornography, pedophiles in the United States had developed a well-organized network for the exchange of child pornography. At the seminar Det. Dittmar met two persons who had knowledge of child pornography activities in this state.

First, Det. Dittmar met Det. William Dworn of the Los Angeles Police Department's sexually exploited child unit, who told Det. Dittmar that he was conducting a child pornography undercover investigation and was corresponding under the assumed name of Pete Davis with a Bob Lodge of 4143-32nd Avenue S.W., Seattle, Washington, who was a teacher. Det. Dworn gave Det. Dittmar a copy of a May 1, 1983 letter that he had received from Lodge, which letter was summarized in and attached to Det. Dittmar's affidavit. Det. Dittmar verified that a Bob Lodge, who lived at 4143-32nd Avenue S.W., in Seattle, was a school teacher.

Next, Det. Dittmar met Jay Howell (Howell), Chief Counsel for the United States Senate Investigations and General Oversight Committee, who had been in contact with Mervyn Cross (Cross), a convicted child molester who was serving a 15-year sentence in Florida. Cross had told Howell that he had formed a corporation which was a front for child pornography and of which Lodge was an officer and the distribution center for the child pornography photographs. When Det. Dworn had arrested Cross in California in 1978, Lodge was on Cross' child pornography mailing list. Moreover, in the past Cross had supplied to Det. Dworn reliable information that had resulted in individuals' convictions for children's sexual exploitation.

During a search of Lodge's residence pursuant to the warrant, a large quantity of sexually explicit material involving children was seized. Lodge was charged with three counts of RCW 9.68A violations. Lodge's pretrial request for an evidentiary hearing on the intentional or reckless inclusion in the search warrant affidavit of allegedly false information was denied, as was his pretrial motion to suppress the evidence seized pursuant to the warrant.

The trial court found that Lodge knowingly possessed large numbers of obscene photographs depicting children engaged in sexually explicit conduct with the intent to distribute this material by trading it for similar material. The court further found that Lodge did not receive and did not intend to receive commercial consideration for distributing this material but that former RCW 9.68A.030 prohibited, without the need for commercial consideration, the mere possession of such material with the intent to distribute it to others. Lodge was found guilty of possessing with the intent to distribute obscene material involving minors engaged in sexually explicit conduct ¹ and was sentenced accordingly.

The issues raised in this appeal are (1) whether the trial court erred in denying the defendant's request for an evidentiary hearing on the truthfulness of the search warrant affidavit's statements, (2) whether the intent to receive commercial consideration is an element under former RCW 9.68A.030 of possession with the intent to distribute obscene, sexually explicit matter involving a minor, (3) whether former RCW 9.68A.030 is violative of the equal protection clause or void for vagueness, and (4) whether the trial court abused its discretion in denying the defense motion to compel the attendance of an out-of-state witness.

The first issue is whether the trial court erred in denying the defense request for an evidentiary hearing on the search warrant affidavit. The United States Supreme Court has held that where a

defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.

Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978), quoted in State v. Cord, 103 Wash.2d 361, 366-67, 693 P.2d 81 (1985). ² If at the hearing the defendant establishes his allegations of perjury or reckless disregard by a preponderance of the evidence, the material misrepresentations will be stricken from the affidavit. If the affidavit's remaining content is insufficient to establish probable cause, the search warrant will be held void and the evidence seized pursuant to the warrant excluded. Franks, supra, 438 U.S. at 156, 98 S.Ct. at 2676, Cord, supra, 103 Wash.2d at 367, 693 P.2d 81.

The Supreme Court has set forth the nature of the preliminary showing necessary to evoke the constitutional right to an evidentiary hearing on the search warrant affidavit:

To mandate an evidentiary hearing, ... [t]here must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth and Fourteenth Amendments, to his hearing.

(Footnote omitted.) Franks, supra, 438 U.S. at 171-72, 98 S.Ct. at 2684.

Lodge contends that he made the requisite preliminary showing of the falsity of affidavit statements ³ and that if the allegedly false affidavit information attributed to Cross were excluded, the remaining information does not provide probable cause for issuance of the search warrant. We disagree with the appellant's contention and conclude that the trial court did not err in denying Lodge's request for an evidentiary hearing on the warrant affidavit, for even if Lodge did make the requisite preliminary showing and the challenged affidavit information attributed to Cross were excluded, the remaining affidavit information is sufficient to establish probable cause.

For a search warrant's issuance to be based on probable cause, the supporting affidavit must set forth sufficient facts to lead a reasonable person to conclude that a probability exists that the defendant is involved in criminal activity. Cord, supra, 103 Wash.2d at 365, 693 P.2d 81. A search warrant affidavit may be based upon the affiant's personal knowledge or upon hearsay information. Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1513-14, 12 L.Ed.2d 723 (1964); State v. Lair, 95 Wash.2d 706, 709, 630 P.2d 427 (1981); CrR 2.3(c).

Here Det. Dittmar's search warrant affidavit contained verified information that the informant, Cross, was a convicted child molester who had been arrested in California for child pornography distribution and that in the past Cross had supplied to Det. Dworn information that had resulted in ten individuals' arrests and convictions for children's sexual exploitation. Moreover, according to Det. Dittmar's affidavit, Det. Dworn had informed him that when Cross had been arrested in California in 1978, Lodge's name was on Cross' child pornography mailing list. A magistrate making a probable cause determination for a search warrant's issuance may rely upon a police officer's affidavit or testimony that relays hearsay information from other officers. State v. Patterson, 37 Wash.App. 275, 277-78, 679 P.2d 416, rev. denied, 103 Wash.2d 1005 (1984).

In this case even if the affidavit information attributed to Cross were excluded, probable cause to issue the search warrant was supplied by the above information coupled with the affidavit information regarding the contents of Lodge's letter to Det. Dworn, who corresponded with Lodge under an assumed name during an undercover child pornography investigation. In this letter, which was appended to the affidavit and incorporated by reference, Lodge stated that he was a school teacher who was "fairly active in photography" and had about 15,000 to 20,000 negatives and a fair amount of "European material" although "as you know acquisition has been difficult lately." In addition, the letter stated, "In the past two years I made some contacts that may eventually lead to some good models." The letter further stated that Lodge lived alone so that mail "of any type" was "safe" at his address, but if the letter recipient had any apprehensions,...