WA: Child porn SW permitted search and seizure of adult porn, and that made it overbroad; merely citing the CP statute doesn’t narrow it

Where a child pornography search warrant also permitted seizure of adult pornography which is not unlawful, it was overbroad under established precedent for 23 years. Merely citing the child pornography in the search warrant wasn’t a cure. State v. Besola, 2015 Wash. LEXIS 1315 (Nov. 5, 2015):

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 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.

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