WA: “Child sex” is too vague for a search warrant description

“Child sex” is too vague for a search warrant for child pornography. The police responded to a meth lab explosion and they saw indications of possible child porn, and they sought a telephonic search warrant for evidence of “narcotics/child sex.” State v. Reep, 161 Wn.2d 808, 167 P.3d 1156 (2007):

¶14 The search warrant at issue authorized seizure of any evidence supporting the suspected criminal activity of “Narcotics/Child Sex.” Pl.’s Ex. C. Specifically, the warrant provides:

Jason Mayse of the Pasco Police Department stating under oath that he has probable cause to believe that certain evidence to the crime of: Narcotics/Child Sex, namely:

Muratic Acid, Tulane, Metal Bowls, Burners, Glassware, And Other Precursors Consist [sic] With The Production Of Meth; And Any Data Storage Devices to Include A Computer And Its Hardware, Compact Discs, Floppy Discs, Portable Storage Units Such As USB [universal serial bus]Accessible Devices, Digital Cameras, Video Cameras, Photographs, Any Documentation of Criminal Activity By the Suspect And Other Evidence Not Listed that Support the Suspected Criminal Activity.

Id.

¶15 In Perrone, 119 Wn.2d at 542, the 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 defendant challenged the validity of the search warrant authorizing seizure of “‘[c]hild or adult pornography.’” Perrone, 119 Wn.2d at 543.

¶16 The Perrone court struck down the warrant for insufficient particularity, noting “child pornography, like obscenity, is expression presumptively protected by the First Amendment.” Id. at 550 (emphasis added) (citing United States v. Hale, 784 F.2d 1465, 1469 (9th Cir. 1986)). And “[w]here a search warrant authorizing a search for materials protected by the First Amendment is concerned, the degree of particularity demanded is greater than in the case where the materials sought are not protected by the First Amendment.” Id. at 547. Stated another way, such warrants must follow the Fourth Amendment’s particularity requirement with “‘scrupulous exactitude.’” Id. at 550 (quoting Stanford v. Texas, 379 U.S. 476, 485, 85 S. Ct. 506, 13 L. Ed. 2d 431 (1965)).

¶17 Per the United States Constitution’s demand for increased particularity, this court pronounced the term “‘child … pornography’” invalid for insufficient particularity as it left the officer with too much discretion in deciding what to seize under the warrant. Id. at 553 (alteration in original). The court observed the term “is an ‘omnibus legal description’ and is not defined in the statutes.” Id. Furthermore, reasoned the court, “‘child … pornography’” is analogous to “‘obscenity,’” a term insufficiently particular to satisfy Fourth Amendment standards. Id.

¶18 Turning to the search warrant in the present case, the fictitious crime of “child sex” is even broader and more ambiguous than the term “child … pornography.” Consequently, the warrant allows the officer unbridled discretion to decide what things to seize and most critically, permits the seizure of items which may be constitutionally protected, such as pornographic drawings of children. Id. at 551. As such, the warrant at issue fails for insufficient particularity.

Comment: The part of the holding that child pornography is presumptively protected under the First Amendment may lead to a cert petition, and it has a better than average chance of being granted.