State v. Perrone
| Citation | 59 Wn.App. 687,800 P.2d 1132 |
| Decision Date | 03 December 1990 |
| Docket Number | No. 24077-3-I,24077-3-I |
| Court | Court of Appeals of Washington |
| Parties | STATE of Washington, Appellant, v. Frank PERRONE, Respondent. Division 1 |
Timothy M. Blood, King County Deputy Pros. Atty., Seattle, for appellant.
Timothy K. Ford, Katrin E. Frank, MacDonald, Hoague & Bayless, Seattle, for respondent.
Frank Perrone was charged with the crimes of dealing in depictions of a minor engaged in sexually explicit conduct (RCW 9.68A.050) and possession of depictions of a minor engaged in sexually explicit conduct (RCW 9.68A.070). The trial court granted Perrone's pretrial motion to suppress the evidence seized from his residence which formed the basis for the charges against him. The State of Washington appeals from the trial court's order granting Perrone's motion, claiming that the trial court erred by failing to sever certain valid portions of the warrant from the invalid portions and that the trial court erred by failing to hold that the language in the search warrant authorizing the seizure of depictions of "children ... engaged in sexual activities" was sufficiently particular. We reverse.
The trial court's unchallenged findings of fact, entered following the suppression hearing, establish the following sequence of events. On September 6, 1988, Frank Perrone delivered 82 films to William Grijalva, an undercover police officer, in Oakland, California. Several of the films contained children involved in sexually explicit acts. Perrone indicated to Officer Grijalva that he had more films "like those" back in Seattle and that he shared his films with other "collectors." When asked if he had any VHS cassettes of "kiddie porn" that Grijalva could copy, Perrone responded that he had enough VHS cassettes in his California and Seattle "library" to keep Grijalva busy for a lifetime. Officer Grijalva subsequently obtained a warrant to search Perrone's residence in California. Grijalva executed an affidavit in support of the warrant in which he stated that he and Officer Frazier had viewed 17 of the 82 films seized. Grijalva provided a description of 10 films which he believed violated the law. Five contained child pornography and the other five contained bestiality. 1 The ages of the children in the films ranged from 11 to 16. The affidavit was attached to the application for a warrant to search Perrone's residence in California.
Based upon Grijalva's contacts with Perrone, Seattle Police Officer Carolee Edwards obtained a search warrant from Judge Ron Mamiya for Perrone's Seattle residence. Edwards attached Officer Grijalva's affidavit to her application for the search warrant. 2 The search warrant authorized seizure of the following items:
Child or adult pornography; photographs, movies, slides, video tapes, magazines or drawings of children or adults engaged in sexual activities or sexually suggestive poses; correspondence with other persons interested in child pornography, phone books, phone registers, correspondence or papers with names, addresses, phone numbers which tend to identify any juvenile; camera equipment, video equipment, sexual paraphernalia: records of safe deposit boxes, storage facilities; computer hardware and software used to store mailing list information or other information on juveniles; papers of dominion and control establishing the identity of the person in control of the premise; and correspondence or papers which tend to identify other pedophiles.
During the search the officers discovered 197 films, projection equipment, and numerous magazines and books. A review of 86 of the films indicated that some of them depicted children under the age of 16 involved in sexual conduct, including acts of sexual intercourse. In addition, 12 of the magazines seized depicted minors in various sexual acts such as masturbation, fellatio, and sexually explicit poses.
On October 12, 1988, Perrone was charged with the crimes of dealing in depictions of a minor engaged in sexually explicit conduct in violation of RCW 9.68A.050(2) 3 and possession of visual or printed matter depicting a minor engaged in sexually explicit conduct in violation of RCW 9.68A.070. 4 Prior to trial, the court granted Perrone's motion to suppress the evidence seized from his residence. The trial court concluded and it was conceded on appeal that the affidavits in support of the search warrant provided probable cause for the seizure of child pornography. However, the trial court noted in its conclusions of law as follows:
1. The warrant goes beyond the scope of probable cause established by the affidavits and the materials submitted with it. The materials submitted provide no probable cause for the seizure of adult pornography, drawings of children, and some of the other items described in the warrant.
2. The warrant was overbroad in that it authorized the seizure of lawful material, and material for which there was no probable cause to search.
3. Certain terms in the warrant were undefined and unclear, and could be interpreted in different ways by different people. Particularly, reasonable persons could interpret the word "children" to mean persons as old as the age of eighteen, and the phrase "sexually suggestive positions" to encompass a broad variety of perfectly legal depictions of children and adults.
4. The warrant granted discretion to the officer to determine which items within the described categories should be seized. There is no way to subdivide out any portion of the warrant which could be found to have given the officers the specific guidance required by the Constitution.
5. The search warrant was therefore invalid in its totality and all the items seized under it must be suppressed.
The trial court's ruling effectively precluded the State from prosecuting Perrone. This appeal followed.
The State concedes that the affidavit in support of the search warrant did not provide probable cause for the seizure of adult pornography, pornographic drawings, sexual paraphernalia, or correspondence or papers which tend to identify other pedophiles. Appellant further concedes that the warrant's language authorizing the seizure of depictions of children engaged in "sexually suggestive poses" was insufficiently particular. However, appellant contends that the trial court erred by not severing the invalid portions of the warrant from those portions which are valid. Specifically, appellant contends that the portion of the warrant authorizing the seizure of depictions of "children ... engaged in sexual activities" was valid.
The general rule in Washington is that if a warrant separately and distinctly describes more than one target and thereafter it is determined that probable cause existed for issuance of the warrant as to one but not the other items, the warrant may be treated as severable and upheld as to the one target only. State v. Halverson, 21 Wash.App. 35, 37, 584 P.2d 408 (1978); State v. Cockrell, 102 Wash.2d 561, 570-71, 689 P.2d 32 (1984).
In Cockrell, a warrant was issued for the search of the defendants' property and all persons, vehicles, and buildings in the area. The trial court concluded that the affidavit in support of the search warrant was insufficient to establish probable cause to search the defendants' residence, outbuildings, vehicles, and any persons on the property. Cockrell, 102 Wash.2d at 569, 689 P.2d 32. On appeal the defendants' contention that the affidavit failed to establish whether any of the marijuana gardens were on their property was rejected. The defendants' final contention that the invalid portions of the warrant were not severable from the valid portions was also rejected. The Supreme Court held that although insufficient probable cause existed to search certain buildings or persons on the defendants' property, that defect did not invalidate the portion of the search warrant which was valid. Cockrell, at 571, 689 P.2d 32.
In support of its conclusion, the Cockrell court cited with approval Aday v. Superior Court, 55 Cal.2d 789, 362 P.2d 47, 13 Cal.Rptr. 415 (1961). Cockrell, 102 Wash.2d at 570, 689 P.2d 32. In Aday, a warrant was issued for two named books and 19 categories of property such as checks, sales records, customers' correspondence and orders, invoices, bills, vouchers, mailing lists, articles of incorporation, minutes of the board of directors, stockholder records, and "[a]ny and all other records and paraphernalia connected with" the business of the corporate petitioners. Aday, 362 P.2d at 49-50, 13 Cal.Rptr. at 418.
In response to a challenge to the validity of the warrant, the court held that aside from the naming of the two books, the remaining categories when taken together were so sweeping as to include virtually all personal business property on the premises and placed no meaningful restriction on the things to be seized. The court reasoned that such a warrant was similar to the general warrant permitting unlimited search, which had long been condemned. Thus, the court held that the warrant did not constitute legal authorization to search for and seize the articles that were insufficiently described. Aday, 362 P.2d at 51, 13 Cal.Rptr. at 419.
The court went on to hold, however, that "[t]he invalid portions of the warrant are severable from the authorization relating to the named books, which formed the principal basis of the charge of obscenity." Aday, 362 P.2d at 52, 13 Cal.Rptr. at 420. The court concluded that the "search for and seizure of these books, if otherwise valid, were not rendered illegal by the defects concerning other articles." Aday, 362 P.2d at 52, 13 Cal.Rptr. at 420.
Read together, Cockrell and Aday support the proposition that valid portions of the search warrant challenged here may be severed from the invalid portions. The trial court found in an unchallenged finding of fact that there was probable cause to search respondent's Seattle residence for child pornography. A...
To continue reading
Request your trial