State v. Perrone

• Citation: 119 Wn.2d 538,834 P.2d 611
• Decision Date: 20 August 1992
• Docket Number: No. 57937-7,57937-7
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Frank PERRONE, Petitioner.

Page 538

119 Wn.2d 538

834 P.2d 611

STATE of Washington, Respondent, v. Frank PERRONE, Petitioner.

No. 57937-7.

Supreme Court of Washington En Banc.

Aug. 20, 1992.

MacDonald, Hoague & Bayless, Timothy K. Ford, Katrin E. Frank, Seattle, for petitioner.

Norm Maleng, Pros. Atty., Timothy Michel Blood, Sr. Deputy Pros. Atty., Seattle, for respondent.

BRACHTENBACH, Justice.

In this case involving prosecution for possession of child pornography, we uphold the trial court's ruling that a search warrant for defendant's residence is overly broad in its entirety. We reverse the Court of Appeals.

Defendant was charged with one count of dealing in depictions of minors engaged in sexually explicit conduct, RCW 9.68A.050(2), and one count of possession of depictions of minors engaged in sexually explicit conduct, RCW 9.68A.070. The charges were based on evidence seized from defendant's condominium pursuant to a search warrant, the validity of which is at issue here.

In March 1988, a Seattle Police Department vice detective received a phone call from an Oakland, California, police officer who advised that he had obtained a mailing list of pedophiles, which had defendant's name on it. An undercover Oakland officer arranged with defendant to meet in California, after defendant returned from a trip to Seattle where he was to pick up adult and child pornographic films. Defendant wanted the films transferred to VHS tapes.

In Oakland, on September 6, 1988, defendant delivered 82 films to the Oakland undercover officer for copying. Several of the films showed children involved in sexually explicit acts. Defendant indicated to the undercover officer that he had more films "like those" in Seattle and that he shared his films with other "collectors." When the officer asked defendant if he had any VHS cassettes of "kiddie porn" that the officer could copy, defendant said that his California and Seattle library of VHS cassettes could keep the officer "busy for a lifetime." The Oakland undercover officer obtained a search warrant to search defendant's car in California.

In Seattle, in a coordinated effort with the California operation, the Seattle vice detective obtained the search warrant in question here. The warrant was drafted and executed by the vice detective, who determined what items to seize pursuant to the warrant. The warrant was based on her affidavit, which incorporated by reference the California warrant. These materials were submitted to a Seattle Municipal Court judge, along with a copy of the California affidavit in support of the California warrant. In the California affidavit, the Oakland undercover officer said that he and another officer had reviewed 17 of the 82 films obtained from defendant. He provided a description of nine of the films. Five showed children in sexually explicit activity and four showed adult females involved in sexual bestiality. The issuing magistrate considered all the materials submitted to him, but did not discuss with the Seattle vice detective the existence of probable cause or the scope of the warrant.

The Seattle 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; any correspondence or papers which tend to identify other pedophiles.

Exhibit 10.

On September 16, 1988, the Seattle vice detective served the search warrant on defendant's Seattle residence. One hundred ninety-seven films were seized, along with numerous magazines, books and projection equipment. Review of 86 of the films ¹ indicated some of them depicted children under the age of 16 engaged in sexual conduct. Twelve of the magazines seized depicted minors in sexual acts.

The trial court granted defendant's pretrial motion to suppress all the evidence seized. The trial court concluded, and defendant does not challenge the conclusion, that there was probable cause for the seizure of child pornography. The trial court further concluded, however, that "[t]he materials submitted provided no probable cause for the seizure of adult pornography, drawings of children, and some of the other items described in the warrant." Conclusion of law 1. The court concluded the warrant was overbroad in that it authorized seizure of items for which there was no probable cause to search and it authorized seizure of lawful items. The trial court also concluded that some of the descriptions of items in the warrant were insufficient.

The trial court concluded that the warrant granted the officers executing the warrant too much discretion as to what to seize. The court held that the warrant was invalid in its totality and all the items seized pursuant to the warrant must be suppressed. The court concluded that "[t]he suppression of all the items seized under the search warrant practically terminates this prosecution on both counts." Conclusion of law 6.

The State appealed, arguing that defective language in the warrant should have been excised, and that the remaining language was sufficiently particular to satisfy the Fourth Amendment. A majority of the Court of Appeals panel agreed with the State that language in the warrant authorizing seizure of depictions of "children ... engaged in sexual activities" was valid and was severable from the rest of the warrant. State v. Perrone, 59 Wash.App. 687, 689, 800 P.2d 1132 (1990), review granted, 116 Wash.2d 1017, 811 P.2d 220 (1991). Judge Forrest dissented.

Defendant sought discretionary review by this court, which was granted. Defendant maintains that the warrant lacked sufficient particularity to satisfy the Fourth Amendment, and that severance of invalid language in the warrant should not be permitted in light of First Amendment considerations.

As noted, the trial court concluded that seizure of many of the items described by the search warrant was not supported by probable cause, as well as concluding that the warrant lacked particularity. As explained below, the probable cause question is closely intertwined with the particularity requirement.

The Fourth Amendment provides that "no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (Italics ours.) U.S. Const. amend. 4. The purposes of the search warrant particularity requirement are the prevention of general searches, prevention of the seizure of objects on the mistaken assumption that they fall within the issuing magistrate's authorization, and prevention of the issuance of warrants on loose, vague, or doubtful bases of fact. 2 W. LaFave, Search and Seizure § 4.6(a), at 234-36 (2d ed. 1987) (citing Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927); Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931)).

As to prevention of general searches, "the specific evil is the 'general warrant' abhorred by the colonists...." Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564, reh'g denied, 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971).

General warrants, of course, are prohibited by the Fourth Amendment. "[T]he problem [posed by the general warrant] is not that of intrusion per se, but of a general, exploratory rummaging in a person's belongings.... [The Fourth Amendment addresses the problem] by requiring a 'particular description' of the things to be seized."

Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627 (1976) (quoting Coolidge, 403 U.S. at 467, 91 S.Ct. at 2038); see also Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979).

[A]n intrusion upon the occupant's expectation of privacy in those premises should extend no further than is necessary to find particular objects, and this is reflected in the rule that the described premises may only be searched as long and as intensely as is reasonable to find the things described in the warrant.

(Footnote omitted.) 2 W. LaFave § 4.6(a), at 235.

As to the second purpose underlying the particularity requirement, conformance with the requirement eliminates the danger of unlimited discretion in the executing officer's determination of what to seize. United States v. Blakeney, 942 F.2d 1001, 1026 (6th Cir.), certs. denied, --- U.S. ----, 112 S.Ct. 646, 116 L.Ed.2d 663 (1991) and --- U.S. ----, 112 S.Ct. 881, 116 L.Ed.2d 785 (1992); State v. Gronlund, 356 N.W.2d 144, 146 (N.D.1984) (particularity requirement eliminates chances that executing officer will exceed the permissible scope of the search because of confusion or uncertainty).

Marron states that "[a]s to what is to be taken, nothing is left to the discretion of the officer executing the warrant." Marron, 275 U.S. at 196, 48 S.Ct. at 76. However, this statement is not read literally, because to do so would mean that an officer could never seize anything which is not specifically named in the warrant. 2 W. LaFave § 4.6(a), at 234. Instead, "[t]he warrant must enable the searcher to reasonably ascertain and identify the things which are authorized to be seized." United States v. Cook, 657 F.2d 730, 733 (5th Cir.1981) (citing Steele v. United States, 267 U.S. 498, 503-04, 45 S.Ct. 414, 416, 69 L.Ed. 757 (1925)); see State v. Trasvina, 16 Wash.App. 519, 522, 557 P.2d 368 (1976), review denied, ...