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State v. Dean

Court of Appeals of Arizona, Second Division

January 12, 2017

The State of Arizona, Appellee,
Thomas L. Dean, Appellant.

         Appeal from the Superior Court in Cochise County No. CR201300593 The Honorable Wallace R. Hoggatt, Judge


          Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Amy Pignatella Cain, Assistant Attorney General, Tucson Counsel for Appellee

          Emily Danies, Tucson Counsel for Appellant

          Chief Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Vásquez concurred and Judge Metcalf [1] dissented.


          ECKERSTROM, Chief Judge:

         ¶1 Thomas Dean appeals from his conviction and sentence for sexual exploitation of a minor. On appeal, he challenges the trial court's ruling that, although the pertinent warrant was defective, the officer relied on it in good faith. For the following reasons, we conclude that the warrant in question was facially invalid and in clear violation of the constitutional requirement of particularity. We therefore reverse the court's ruling and Dean's conviction and sentence.

         Factual and Procedural Background

         ¶2 "In reviewing the denial of a defendant's motion to suppress, we consider only 'evidence presented at the suppression hearing and view the facts in the light most favorable to sustaining the trial court's ruling.'" Brown v. McClennen, 239 Ariz. 521, ¶ 4, 373 P.3d 538, 540 (2016), quoting State v. Hausner, 230 Ariz. 60, ¶ 23, 280 P.3d 604, 614 (2012). In July 2012, a detective with the Cochise County Sheriff's Office received a report that Dean had sexually assaulted eight-year-old CD. eighteen months earlier. The detective sought a search warrant for Dean's trailer and car. In the affidavit, as the sole basis for probable cause, the detective described an incident occurring in December 2010, in which Dean had "put his thing up [C.D.'s] thing."[2] At the time he sought the warrant, the detective knew, but did not advise the magistrate, that Dean had previously been convicted of child molestation sixteen years earlier in another state. In that prior incident, Dean had photographed the victim.[3]

         ¶3 During the search of Dean's trailer, officers seized a laptop computer and submitted it for examination. The computer contained images of child pornography that resulted in a ten-count indictment, which was reduced to a single count at the state's request.[4] After a bench trial, Dean was convicted of one count of sexual exploitation of a minor under fifteen years of age and sentenced to an enhanced, minimum prison term of twenty-one years. This appeal followed.

         Motion to Suppress

         ¶4 On appeal, Dean argues the trial court erred in denying his motion to suppress the evidence secured from execution of the search warrant. "We review the court's decision 'for abuse of discretion if it involves a discretionary issue, but review constitutional issues and purely legal issues de novo.'" State v. Gay, 214 Ariz. 214, ¶ 4, 150 P.3d 787, 790 (App. 2007), quoting State v. Booker, 212 Ariz. 502, ¶ 10, 135 P.3d 57, 59 (App. 2006).

         ¶5 The trial court found the warrant deficient because the affidavit, which referred only to an allegation of molestation occurring at another location eighteen months earlier, "did not establish probable cause that [Dean] possessed child pornography on his computer in July 2012." The state does not dispute this finding. The court nonetheless concluded that the warrant was sufficiently particular to be relied upon under the good-faith exception articulated in United States v. Leon, 468 U.S. 897 (1984), and denied Dean's motion to suppress.[5]

         ¶6 In Leon, the Supreme Court concluded that, in general, evidence seized by law enforcement officers acting in good faith, but in reliance on a faulty warrant, should not be suppressed. Id. at 922. The court then established four exceptions to that general rule:

(1) when a magistrate is misled by information that the affiant knew was false or would have known was false but for his or her reckless disregard for the truth;
(2) when the issuing magistrate "wholly abandon[s]" his or her judicial role;
(3) when a warrant is based on an affidavit "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable"; and (4) when a warrant is "so facially deficient . . . that the executing officers cannot reasonably presume it to be valid."

State v. Hyde, 186 Ariz. 252, 273, 921 P.2d 655, 676 (1996), quoting Leon, 468 U.S. at 923 (alterations in Hyde).

         ¶7 On appeal, Dean claims the fourth Leon exception applies here because the "warrant lacks particularity in describing the places to be searched and the items to be seized." We agree. In United States v. Spilotro, the Ninth Circuit articulated a three-factor test to determine whether a description of items to be seized is sufficiently particular to support an officer's good-faith belief in the validity of the warrant:

(1) whether probable cause exists to seize all items of a particular type described in the warrant, (2) whether the warrant sets out objective standards by which executing officers can differentiate items subject to seizure from those which are not, and (3) whether the government was able to describe the items more particularly in light of the information available to it at the time the warrant was issued.

800 F.2d 959, 963 (9th Cir. 1986) (citations omitted).

         ¶8 As to the first Spilotro factor, whether there was probable cause to seize a certain type of item described in the warrant, 800 F.2d at 963, the trial court found there was not. As noted above, the state has not challenged this finding on appeal. We nonetheless consider this factor in accordance with our obligation to uphold the trial court if it is correct for any reason. State v. Valenzuela, 239 Ariz. 299, ¶ 35, 371 P.3d 627, 638 (2016).

         ¶9 In the affidavit seeking a search warrant, the detective stated that in 2010 Dean had anally sodomized a six- or seven-year-old boy. The alleged incident took place at the home of Dean's parents, in the attic. Although the allegations certainly provided probable cause to believe Dean had committed child molestation or sexual conduct with a minor, nothing about these facts provided probable cause to believe Dean possessed child pornography eighteen months later, much less at any particular location. See United States v. Hodson, 543 F.3d 286, 292 (6th Cir. 2008) ("[I]t is beyond dispute that the warrant was defective for lack of probable cause-[the detective] established probable cause for one crime (child molestation) but designed and requested a search for evidence of an entirely different crime (child pornography)."); Carissa Byrne Hessick, Disentangling Child Pornography from Child Sex Abuse, 88 Wash. U. L. Rev. 853, 875 (2011) ("[E]mpirical literature is unable to validate the assumption that there is a causal connection between possession of child pornography and child sex abuse.").

         ¶10 The dissent suggests that we may consider information not presented to the magistrate, but known to the officer, in evaluating whether there was probable cause to search under the first Spilotro factor. Courts are currently split on the issue of whether a reviewing court may look beyond the four corners of the affidavit seeking a search warrant in determining whether an officer relied on a warrant in good faith. Compare United States v. Martin, 297 F.3d 1308, 1318 (11th Cir. 2002) (reviewing court may look beyond affidavit to any information known by the officer), with United States v. Frazier, 423 F.3d 526, 535-36 (6th Cir. 2005) (reviewing court may consider information not contained in affidavit if it was presented to the magistrate), and United States v. Luong, 470 F.3d 898, 904-05 (9th Cir. 2006) (reviewing court may not consider information beyond four corners of affidavit).

         ¶11 But, even assuming arguendo we could consider information known to the officer, but not included in the affidavit or presented to the magistrate, the officer still lacked probable cause to believe Dean possessed child pornography. Here, the detective knew, but did not advise the magistrate, that Dean was on parole for sexual assault of a minor for an incident which had occurred sixteen years earlier. In that incident, Dean had taken photographs of the victim. However, the facts underlying the prior incident provided no greater evidence that Dean possessed child pornography on his computer than the facts of the instant case. And the victim in this case, CD., although forensically interviewed, never asserted that he was either photographed or shown pornography by Dean. Accordingly, even if we consider the facts known by the detective that were not included in the affidavit, the warrant is still lacking in probable cause to believe Dean possessed child pornography at all, much less at his home, a location where none of the alleged criminal acts occurred.

         ¶12 The second factor, whether the warrant provided sufficient guidance to officers conducting the search, focuses on whether the warrant "specified the crime to be investigated, the specific places to be searched, and the types of evidence to be seized." Dawson v. City of Seattle, 435 F.3d 1054, 1064 (9th Cir. 2006). Specificity in a warrant "prevents officers from engaging in general, exploratory searches by limiting their discretion and providing specific guidance as to what can and cannot be searched and seized." United States v. Adjani, 452 F.3d 1140, 1147 (9th Cir. 2006); see State v. Adams, 197 Ariz. 569, ¶ 25, 5 P.3d 903, 908 (App. 2000).

         ¶13 The warrant at issue here described four categories of items to be seized, two of which are relevant to this discussion:

A. Any and all electronic devices and associated materials capable of producing, manipulating, sending, receiving, and/or storing electronic files, media and/ or digital images which may be stored in (i.e. computers, cameras, cell phones, thumb drives, etc.).
B. Any and all items which visually depict minors engaged in exploitive exhibition or any and all other sexual conduct such as, but not limited to, posing nude.

         ¶14 Category A allowed officers to search all of Dean's computer records without any limitations on what files could be seized or how those files "related to specific criminal activity." United States v. Kow, 58 F.3d 423, 425-26, 427 (9th Cir. 1995); see United States v. Riccardi, 405 F.3d 852, 862 (10th Cir. 2005) ("[W]arrants for computer searches must affirmatively limit the search to evidence of specific . . . crimes or specific types of material."). The trial court correctly concluded that this was impermissibly broad. On appeal, the state has not challenged this conclusion.

         ¶15 The primary dispute on appeal is whether category B, "[a]ny and all items which visually depict minors engaged in exploitive exhibition, " was sufficiently particular to authorize a search of a computer.[6] Dean argues this category instead "refer[s] to items such as printed photographs, books, magazines, or other illicit printed material depicting minors." In making this claim, Dean distinguishes between printed material, which officers ...

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