State v. Besola

/ F~l~t:E·
IN CLERKS OFFICE ~-
1\JPRBCE COURT, STATE OF WASHING10N
9ATE_ NOV 0 5 2015 .
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~JUSli Ronald . Carpenter
Supfl~me Court Clerk

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, )
)
Respondent, ) No. 90554-1
)
v. )
)
MARK LESTER BESOLA, )
)
Petitioner. )
)
)
STATE OF WASHINGTON, )
)
Respondent, )
)
v. ) EnBanc
)
JEFFREY EDWIN SWENSON, )
) Filed NOV 0 5 2015
Petitioner. )
)

OWENS, J. - The Fourth Amendment to the United States Constitution

requires warrants to "particularly describ[ e] the place to be searched, and the persons

or things to be seized." That requirement is heightened if the warrant authorizes a

search for materials protected by the First Amendment to the United States
State v. Besola/State v. Swenson
No. 90554-1

Constitution. Stanford v. Texas, 379 U.S. 476, 485, 85 S. Ct. 506, 13 L. Ed. 2d 431

(1965). In this case, we are asked to evaluate a search warrant in a prosecution for

possession of and dealing in depictions of minors engaged in sexually explicit

conduct. For guidance, we look to a 1992 case, State v. Perrone, 119 Wn.2d 538, 834

P.2d 611 (1992), that involved similar circumstances. We unanimously held that the

Perrone warrant failed to meet the particularity requirement of the Fourth

Amendment, in part because it provided for the seizure of items that were legal to

possess, such as adult pornography. That holding is binding in this case, where the

warrant similarly provided for the seizure of items that were legal to possess. The

State contends that the warrant in this case is saved by a citation to the child

pornography statute at the top of the warrant. The State is incorrect because the

statutory citation does not modify or limit the items listed in the warrant, so it does not

save the warrant from being overbroad. More importantly, the State's position

conflicts with our reasoning in Perrone and would hinder the goals of the warrant

particularity requirement. Because the warrant fails to meet the Constitution's

particularity requirement, we must reverse these convictions.

FACTS

Mark Besola and Jeffrey Swenson lived together in Besola's house. After a

friend of Swenson's, Kellie Westfall, was arrested, she told police that she had seen

drugs and child pornography at Besola' s house. Besola was a veterinarian, and

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No. 90554-1

Westfall said that he provided prescription drugs from his veterinary clinic to

Swenson, who was a drug addict.

Based on the information provided by Westfall, a judge issued a search warrant

for illegal drugs but declined to issue a search warrant related to child pornography at

that time. At the scene, police saw CDs (compact disks) and DVDs (digital video

disks) with handwritten titles that implied that they contained child pornography. On

the basis of this observation, police requested and obtained an addendum to the search

warrant.

The language of that amended warrant (and whether it was sufficiently

particular) is at the heart of the legal issue in this case. The warrant indicated that the

crime under investigation was "Possession of Child Pornography R.C.W. 9.68A.070."

Clerk's Papers (CP) at 312 (boldface omitted). The warrant indicated that "the

following evidence is material to the investigation or prosecution of the above

described felony":

1. Any and all video tapes, CDs, DVDs, or any other visual and or
audio recordings;
2. Any and all printed pornographic materials;
3. Any photographs, but particularly of minors;
4. Any and all computer hard drives or laptop computers and any
memory storage devices;
5. Any and all documents demonstrating purchase, sale or transfer of
pornographic material.

Id. (boldface omitted). Police seized a number of computers, memory storage

devices, CDs, and DVDs. They ultimately found child pornography on one computer

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and on 41 disks with handwritten titles. They also found a DVD duplicating device

(also known as a DVD burner) attached to the computer. Some disks contained

duplicated copies of the child pornography. A handwriting expert testified that

Besola's handwriting was on at least one of the disks containing child pornography

and that indications of both Besola's and Swenson's handwriting were on multiple

other disks.

Besola and Swenson were each charged with and convicted of two crimes:

possession of depictions of minors engaged in sexually explicit conduct and dealing in

such depictions.

Besola and Swenson appealed, raising a number of issues. The Court of

Appeals affirmed their convictions. State v. Besola, noted at 181 Wn. App. 1013,

2014 WL 215 5229, at *19. Besola and Swenson petitioned for review on a number of

issues, but we granted review "only as to the warrant and 'to convict' instructions."

Order Granting Review, State v. Besola, No. 90554-1 (Wash. Nov. 5, 2014); State v.

Besola, 181 Wn.2d 1014, 337 P.3d 325 (2014). Given our holding on the warrant

issue, we need not address the "to convict" instruction issue.

ISSUE

Did this search warrant meet the Fourth Amendment's particularity

requirement?

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ANALYSIS

Search warrants must describe the items to be seized with particularity. U.S.

CONST. amend. IV. The search warrant in this case contained broad descriptions of

the items to be seized (e.g., "[a]ny and all printed pornographic materials" and "[a]ny

photographs, but particularly of minors"). CP at 312 (boldface omitted). Under our

holding from Perrone, these descriptions were overbroad because they allowed

officers to seize lawfully possessed materials, such as adult pornography, when the

descriptions could easily have been made more particular. The State argues that the

warrant is saved by a citation to the child pornography statute at the top of the

warrant. As explained below, the State is incorrect. The statutory citation does not

modify or limit the items listed in the warrant, so it does not save the warrant from

being overbroad. Furthermore, adopting the State's argument would be contrary to

our reasoning in Perrone and would hinder the goals of the warrant particularity

requirement.

1. An Overview of the Particularity Requirement for Search Warrants and the
Heightened Protection for Materials Protected by the First Amendment

The Fourth Amendment requires that search warrants "particularly describ[e]

the place to be searched, and the persons or things to be seized." U.S. CONST. amend.

IV. As this court has explained, "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

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No. 90554-1

authorization, and prevention of the issuance of warrants on loose, vague, or doubtful

bases of fact." Perrone, 119 Wn.2d at 545.

Warrants "'must enable the searcher to reasonably ascertain and identify the

things which are authorized to be seized."' !d. at 546 (quoting United States v. Cook,

657 F.2d 730, 733 (5th Cir. 1981)). By describing the items to be seized with

particularity, the warrant limits the discretion of the executing officer to determine

what to seize. !d.

This court has also recognized that one purpose of a warrant is "to inform the

person subject to the search what items the officer may seize." State v. Riley, 121

Wn.2d 22, 29, 846 P.2d 1365 (1993).

Warrants for materials protected by the First Amendment require a heightened

degree of particularity. Perrone, 119 Wn.2d at 547-48 (quoting Stanford, 379 U.S. at

485). In such cases, the particularity requirement must be "'accorded the most

scrupulous exactitude."' !d. at 548 (quoting Stanford, 379 U.S. at 485).

2. The Search Warrant Provisions Related to Print Materials Were Overbroad,
and the Statutory Citation to the Crime under Investigation Did Not Save Those
Overbroad Provisions

The defendants are correct that the portions of the warrant related to printed

materials are insufficiently particular under our holding from Perrone. The State

argues that a citation to the child pornography statute at the top of the warrant

effectively circumscribes the entire warrant, making it sufficiently particular. As

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described in further detail below, this argument fails because that statutory reference

did not modify or limit the items that officers could seize pursuant to the warrant.

A. This Search Was Overbroad under Perrone Because Search Warrants
Related to Child Pornography Cannot Generally Provide for the Seizure of
Legal Adult Pornography

In the 1992 Perrone case, we evaluated a search warrant in a prosecution for

the same two charges as this case-possession of and dealing in depictions of minors

engaged in sexually explicit conduct. We unanimously held that the warrant failed to

meet the Fourth Amendment's particularity requirement. Because both parties point

to Perrone as the most important case on this issue, it is important to understand the

facts and reasoning of that case.

In Perrone, the police were investigating an individual who had provided a

number of films depicting children involved in sexually explicit acts to a detective in

Oakland, California. The defendant indicated that he had many more such films in

Seattle. Through a cooperative investigation with the Oakland police, a Seattle

detective obtained a search warrant for the defendant's home in Seattle. The warrant

authorized seizure of

"[c ]hild 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

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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."

Id. at 543.

The State conceded that there was no probable cause for certain items that were

legal to possess, including adult pornography, pornographic drawings, and sexual

paraphernalia. Id. at 551. The State also conceded that the reference to children in

"'sexually suggestive poses'" was insufficiently particular. Id. at 552. Therefore, the

court was left to consider the warrant's authorization to seize "' [c]hild ...

pornography; photographs, movies, slides, video tapes, magazines ... of children ...

engaged in sexual activities."' Id. (alterations in original).

The court found that "in the context of the warrant's language as a whole," the

description "'child ... pornography'" was invalid for three reasons. Id. at 552-53

(alteration in original). First, the court found that the term "child pornography" was

an "'omnibus legal description"' undefined by statute, similar to the term "obscenity."

Id. at 553. As such, it left too much discretion to the officer to decide what to seize.

Second, it held that the description was too general under these circumstances because

the warrant could easily have been made more particular if the language in the statute

had been used to describe the materials sought. Id. at 553-54. The court suggested

that "a specific statement of the type of contents which would render the material

child pornography" would be sufficient. Id. at 554. Third, the court noted that other

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courts "have sometimes held a description of materials sought can be held sufficiently

particular given the rest of the warrant's language." !d. at 555. For instance, a

reference to a specific illegal activity can sometimes provide guidance to an office

executing a search warrant. !d. But the court held that such a holding would be

inappropriate because "so much of the rest of the warrant suffers from lack of

probable cause and from insufficient particularity." !d. Based on those three reasons,

the court concluded that the term "child pornography" was invalid because it was

insufficiently particular. Id.

Applying the holding and reasoning of Perrone to this case, we conclude that

many provisions of this search warrant were similarly overbroad. As in Perrone, the

descriptions of the items to be seized expressly included materials that were legal to

possess, such as adult pornography and photographs that did not depict children

engaged in sexually explicit conduct. See CP at 312 (authorizing the seizure of"[a]ny

and all printed pornographic materials" and "[a]ny photographs, but particularly of

minors" (boldface omitted)). As in Perrone, these descriptions could easily have been

made more particular by adding the precise statutory language-" depictions of a

minor engaged in sexually explicit conduct," RCW 9.68A.050 (boldface omitted).

Under Perrone, these provisions were insufficiently particular and thus invalid.

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B. The Statutory Citation in This Warrant Did Not Circumscribe the List of
Items To Be Seized and Thus Did Not Save the Warrant from Being
Overbroad

The State claims that the citation to the statutory definition of the crime under

investigation, noted at the beginning of the warrant, circumscribes the list of items to

be seized and thus makes the entire warrant sufficiently particular. We reject this

argument because it is contrary to (1) the plain language of the warrant, (2) this

court's reasoning in Perrone, and (3) the purposes of the warrant requirement.

The State bases its argument on a skewed reading of this court's statement in

Perrone that "the language ofRCW 9.68A.011, if used in a search warrant to describe

materials sought, would be sufficiently particular." 119 Wn.2d at 553. And certainly,

if this search warrant had used the language of RCW 9 .68A.O 11 to describe materials

sought, the warrant would likely be sufficiently particular. But this warrant does not

use the language of the statute; it simply notes the statutory citation. See CP at 312

(stating that the felony under investigation is "Possession of Child Pornography

R.C.W. 6.68A.070" (boldface omitted)). It does not add any actual information that

would be helpful to the reader, such as the statutory definition of child pornography.

Furthermore, the warrant does not use the citation to describe the materials

sought. The warrant lists the crime under investigation and then separately lists the

evidence that is material to that investigation, which police are then authorized to

seize. See id. The name of the felony at the top of the warrant does not modify or

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limit the list of items that can be seized via the warrant. This is evidenced by the plain

language of the warrant, which introduces the list of evidence covered by the warrant

with the statement, "[T]he following evidence is material to the investigation or

prosecution of the above described felony." Id. That sentence does not limit the

evidence to be seized by referencing the felony; it merely says that the evidence that

follows is "material" to the investigation of that felony. Additionally, the State's

conclusion is inconsistent with the descriptions of the items to be seized. If the

reference to the crime of possession of child pornography was meant to be read as

limiting each item on the list, then the phrase "[a]ny photographs, but particularly of

minors" would not need the latter modifying phrase. Id. (boldface omitted).

Even where the constitution requires scrupulous exactitude, "[s]earch warrants

are to be tested and interpreted in a commonsense, practical manner, rather than in a

hypertechnical sense." Perrone, 119 Wn.2d at 549. However, neither common sense

nor practicality allow the court to assume there are limitations on a warrant's scope

where such limitations are plainly absent. Here, the warrant's rote citation to the child

pornography statute is at best ambiguous as to whether it limits the subsequent list of

items to be seized. Because that ambiguity means the officers, rather than judges, will

decide the scope, it fails not just Perrone, but the core purpose of the historically

grounded particularity requirement. See Stanford, 379 U.S. at 485-86.

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As we said in Perrone, using the statutory language to describe the materials

sought would likely make the warrant sufficiently particular. But the inclusion of the

citation to the statute at the top of this warrant did nothing to make this warrant more

particular. Not only did it fail to add helpful information-such as the definition of

child pornography, it did not modify or limit the evidence that officers could seize.

The State also bases its argument on a case from the Tenth Circuit Court of

Appeals, but that case is not applicable to these facts nor is it faithful to our state case

law. In that Tenth Circuit case, the court upheld a search warrant that "'due to the

nature of the charges"' provided for the seizure of"' any and all items related to child

pornography."' United States v. Burke, 633 F.3d 984, 992 (lOth Cir. 2011). The

search warrant also provided for the seizure of devices that could store computer files

as "'contraband, evidence, fruits, or instrumentalities of said crime(s),"' and it

indicated that the crime under investigation was sexual exploitation of a child. !d.

The Burke court indicated that because the warrant used the phrase "due to the nature

of the charges" and then listed the charge of sexual exploitation of a child (including a

reference to the relevant statute), the warrant "[brought] to officers' attention the

purpose of the search." !d. As a result, the court held that "[a] sufficient nexus

between the child pornography charge and the items to be searched existed to allow

the warrant to pass constitutional muster." !d. at 992-93.

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However, we cannot broadly apply the Burke holding to this case. This area of

the law often turns on the specific language in the search warrant, and the Burke

warrant was quite different than the warrant in this case. The warrant in Burke did not

suffer from the primary defect in this warrant: the inclusion of lawfully possessed

materials, such as adult pornography. Instead, the Burke warrant limited the seizure

of print items to those "'related to child pornography in any media form."' !d. at 992.

Further, stretching the Burke holding to apply to this case would be contrary to

our holding and reasoning in Perrone and it would undermine the purposes of the

particularity requirement. We already rejected a search warrant based on its use of the

general (and statutorily undefined) term "child pornography" in Perrone. The Tenth

Circuit was not bound by such a holding, as is clear by its upholding of the warrant

despite its general references to sexual exploitation of a child and child pornography.

But more importantly, applying the Tenth Circuit's holding to this warrant in

particular would undermine the purposes of the particularity requirement. Even if we

concluded that the statutory citation circumscribed the list of evidence that could be

seized under the warrant, and even if we concluded that it would be reasonable for an

officer to know and apply the statutory language based on the citation listed in the

warrant, the warrant would still fail to inform the person subject to the search what

items the officers were authorized to seize. See Riley, 121 Wn.2d at 29-30.

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The State asks us to hold that the inclusion of a statutory citation at the top of

the warrant effectively serves to make the entire warrant, and its many overbroad

provisions, sufficiently particular. We cannot do so because such a holding is

contrary to our holding and reasoning in Perrone and would undermine the very

purposes of the particularity requirement. Because this warrant fails to meet the

Constitution's particularity requirement, we must reverse these convictions.

CONCLUSION

The search warrant at issue failed to meet the Fourth Amendment's

particularity requirement. We reverse the Court of Appeals and remand for further

proceedings consistent with this opinion.

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WE CONCUR:

(/

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