Child Pornography Description Insufficient to Meet Warrant Requirements

State v. Besola (2015)

by David S. Marshall

The Washington State Supreme Court has held that a warrant failed to meet the “particularity” requirement of the Fourth Amendment because the description of items to be seized was too broad.

The case is very similar to one our firm is now handling in Benton County Superior Court in Kennewick, Washington. More on that below.

The supreme court case began with a prosecution in Tacoma, Washington, in Pierce County Superior Court. Officers had executed a warrant to seize materials from defendants Besola and Swenson’s home. The warrant stated:

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

The seizure of child pornography on a computer and on several disks resulted in the defendants’s convictions for possession of and dealing in depictions of minors engaged in sexually explicit conduct. Besola and Swenson appealed the convictions, arguing that the warrant failed to meet Fourth Amendment search and seizure requirements.

Under the Fourth Amendment to the US Constitution, warrants must describe with particularity the place to be searched and the persons or things to be seized.

The standard for particularity is higher when the materials to be seized are communication media. Such media are presumptively protected by the First Amendment’s guarantee of freedom of speech. In those cases, the warrant must describe the materials to be seized with the “most scrupulous exactitude.”

The court in this case held that the warrant was insufficiently particular. The court compared a case that previously addressed whether a search warrant related to child pornography met the Fourth Amendment requirement.

In State v. Perrone, the court held that using the term “child pornography” in a warrant leaves too much discretion to the officer about what materials to seize. For example, text describing sex with children can be considered child pornography, but the First Amendment entitles a person to possess it.

A warrant can be made sufficiently particular by using the phrase “depictions of a minor engaged in sexually explicit conduct.”

The warrant was also invalid because it authorized seizure of materials that were legal, such as adult pornography and photos of children that did not depict them engaging in sexually explicit conduct.

In the case Aimée Sutton and I are now handling in Kennewick, a search warrant authorized seizure of all electronic storage devices capable of holding child pornography. The trial judge, Bruce Spanner, ruled that that warrant, too, was overbroad. A videotape seized by Benton County Sheriff’s detectives therefore cannot be used in evidence in the trial we expect to begin soon. (The videotape contains no child pornography, but things it does contain could have been used by the prosecution to strengthen its case at trial.)