                                                              COURT OF APPALS D.^


                                                              2013 HARM      AH 9= 58




        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                   No. 67678-4-1


                      Respondent,                      DIVISION ONE

   v.



PAUL G.JONES,                                          UNPUBLISHED


                      Appellant.                       FILED: March 11. 2013




        COX, J. — In order to satisfy the Fourth Amendment, a search warrant

must describe with particularity "the person or things to be seized." The warrant

authorizing the search of Paul Jones's motor home directed the executing

officers to search for broad, generic categories of items, but provided no

meaningful standards for assessing which items were subject to seizure. We

conclude that the warrant therefore failed to satisfy the particularity requirement

of the Fourth Amendment and that the evidence seized pursuant to the warrant

must be suppressed. We reverse Jones's convictions for first degree child

molestation and remand for further proceedings.

        In 2010, the parents of ten-year-old D.R.P. contacted the Skagit County

Sheriff's Office to report D.R.P.'s allegations of sexual abuse involving Paul

Jones. From about 2006 to 2009, D.R.P.'s family lived in a trailer park in Sedro-

Woolley. Jones lived in a motor home in the same trailer park.
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          D.R.P. told officers that he spent the night in Jones's motor home on

several occasions. Jones would make D.R.P. sleep naked in a bed that had

"itchy" blankets. Jones showed D.R.P. a sign on the shower door with a naked

father, mother, and children and explained that it meant no clothes were allowed

in bed.

          During a game called "face painting," Jones used a paint brush to paint

D.R.P.'s penis and had D.R.P. paint Jones's penis. Jones would then shower

with D.R.P. and wash D.R.P.'s penis. Jones told D.R.P. that he played the face

painting game with other boys as well.

          Jones showed D.R.P. movies of males having sex and would make D.R.P.

"jerk" while watching. Jones also used his computer camera to record D.R.P.

lying on his bed "jerking" and using a vibrator. D.R.P. said that Jones had many

pictures and videos of D.R.P. and Jones masturbating one another and many

pictures of D.R.P. with no clothes on. D.R.P. described the icons on Jones's

computer files where the pictures were stored.

          D.R.P. described one incident in which another unknown boy from the

trailer park was present when Jones demonstrated a penis pump. Jones had

D.R.P. use a mint-flavored yellow mouth wash during the visits.

          Jones allowed D.R.P. to play games on his computer and watch cartoons

during the visits. Jones also gave D.R.P. bigger toys than he gave to the other

kids in the trailer park and gave D.R.P. candy in the mornings before school.



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       Based on the investigation, a Skagit County Sheriff's Office detective

prepared an affidavit and obtained a search warrant for Jones's motor home.

The warrant identified the suspected crimes as child molestation in the first

degree and sexual exploitation of a minor. During execution of the warrant,

officers seized various items related to the crime, including nude photographs

and sexually explicit videos of D.R.P. and other children.

       The State charged Jones with five counts of child molestation in the first

degree and two counts of sexual exploitation of a minor. Jones moved to

suppress the evidence seized pursuant to the warrant, arguing, among other

things, that the search warrant failed to establish probable cause to search

Jones's motor home and that the warrant failed to satisfy the particularity

requirement of the Fourth Amendment. The trial court denied the motion.

       Following a bench trial based on stipulated evidence, the court found

Jones guilty of three counts of child molestation in the first degree and imposed a
standard-range sentence of concurrent 130-month terms.

                                    DECISION

       Jones contends that the search warrant supporting the search and seizure

of evidence in his motor home was unconstitutionally overbroad. We agree that

the warrant failed to satisfy the Fourth Amendment particularity requirement and

that the invalid portions of the warrant cannot reasonably be severed.




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       The Fourth Amendment mandates that search warrants describe with

particularity the things to be seized.1 The particularity requirement serves not

only to prevent general searches, but also to eliminate the "danger of unlimited

discretion in the executing officer's determination of what to seize"2 and to inform

the person subject to the search what items may be seized.3

       The degree of specificity required necessarily varies "according to the

circumstances and the type of items involved."4 We review de novo whether a

search warrant contains a sufficiently particularized description to satisfy the

Fourth Amendment, but construe the language "in a commonsense, practical

manner, rather than in a hypertechnical sense."5 A warrant that fails to satisfy

the Fourth Amendment particularity requirement is unconstitutional.6
       The search warrant here recited that there was probable cause to believe

that Jones had committed the crimes of child molestation in the first degree and

sexual exploitation of a minor, identified the relevant address, described Jones's

motor home, and directed the executing officers to seize the following items:
       Bedding, to include blankets
       Guns of any make or model
       Signs or images
       Photographs
       Computer


    1 State v. Perrone, 119 Wn.2d 538, 545, 834P.2d611 (1992).
    2 Id at 546.
    3 State v. Rilev. 121 Wn.2d 22, 29, 846 P.2d 1365 (1993).
    4 State v. Stenson, 132 Wn.2d 668, 692, 940 P.2d 1239(1997).
    5 Perrone, 119 Wn.2d at 549.
    6 Groh v. Ramirez, 540 U.S. 551, 557, 124 S. Ct. 1284, 157 L Ed. 2d 1068 (2004).


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No. 67678-4-1/5



       Camera
       Sex related material to include
       Books, literature, object, toys, pumps and vibrators
       Documents of Domain and control
       Registrations
       Video and media storage devices
       Paints and paint brushes
       Mouth wash
       VHS/DVDS/CD and movies
       Any and all evidence of this crime.

The warrant did not identify any of the facts of the alleged crimes.
       On appeal, as he did in the trial court, Jones contends that the warrant

provision permitting the search for "Any and all evidence of this crime" effectively

authorized an unconstitutional general search. The State claims, and the trial

court agreed, that the challenged provision did not invalidate the warrant

because the alleged crimes and the preceding list of specific items adequately

limited the discretion of the searching officers who executed the warrant.

       The general authorization in the warrant to search for "any and all

evidence of this crime" is reasonably construed as referring to evidence of the

crimes of first degree child molestation and sexual exploitation of a minor. But

the State fails to demonstrate how the mere identification of the alleged crimes

provided any meaningful guidance for the officers executing the warrant under

the facts of this case.

       "The Fourth Amendment by its terms requires particularity in the warrant,

not in the supporting documents."7 The particularity requirement may be satisfied


    7 Ramirez, 540 U.S. at 557.


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if "the affidavit and the search warrant are physically attached, and the warrant

expressly refers to the affidavit and incorporates it with 'suitable words of

reference'."8

        Here, the affidavit supporting the search warrant set forth in explicit detail

the nature of the alleged criminal activity identified numerous specific items

associated with the criminal activity, and otherwise provided extensive contextual

information. But the warrant itself did not recite any of the circumstances

underlying the suspected crime. The warrant does not incorporate the affidavit

and nothing in the record indicates that the affidavit was attached to the warrant.

"Neither the officer's personal knowledge of the crime nor a proper execution of

the search may cure an overbroad warrant."9 Without some information
illuminating the circumstances of the crime, the discretion of the officers to

search for "any and all evidence" of the crimes was limited only by their

imagination.

        Nor are we persuaded by the trial court's conclusion that the preceding list

of items in the warrant effectively limited the broad discretion to search. The

warrant identified several specific items, such as bedding, guns, computer,

camera, paints and paint brushes, vibrators, pumps, and mouthwash. But most

of these items are not inherently associated with the suspected crimes. Without



      8 Riley, 121 Wn.2d at 29 (citation omitted).
      9 State v. Hiqqins. 136 Wn. App. 87, 91, 147 P.3d 649 (2006); Riley. 121 Wn.2d at
29.



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No. 67678-4-1/7




some contextual information about the crime, these relatively innocuous and

unrelated items did not serve to focus or otherwise circumscribe the broad

discretion to search for evidence of the crime.10

       The warrant further specified broad, generic categories of items, including

"signs or images," photographs, "VHS/DVDs/CD and movies," and "sex related

materials," including books, literature, and "object[s]." Such undifferentiated

categories provided no meaningful guidelines to officers searching for "any and

all evidence." Moreover, some of these items were presumptively protected by

the First Amendment, triggering enhanced scrutiny of the particularity

requirement.11

       A description in a search warrant is generally valid "if it is as specific as

the circumstances and the nature of the activity under investigation permit."12
The use of a generic term or general description is not a per se violation of the

particularity requirement.13 But "courts have reasoned that the use of a generic

term or general description is constitutionally acceptable only when a more




     10 See State v. Chambers, 88 Wn. App. 640, 644, 945 P.2d 1172 (1997) (items that
are innocuous and not inherently illegal may require greater degree of particularity to
satisfy Fourth Amendment).
     11 Perrone, 119 Wn.2d at 546-48 (applying higher standard of "scrupulous
exactitude" to warrant authorizing seizure of photographs, movies, slides, video tapes,
magazines or drawings of children or adults engaged in sexual activities or suggestive
poses).
    12 id at 547.
    13 Id.


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No. 67678-4-1/8




particular description of the items to be seized is not available at the time the

warrant issues."14

       Here, the detailed allegations in the affidavit clearly establish that the

warrant could easily have incorporated specific descriptions and examples of the

photographs, signs, images, movies, and "sex related" books and literature that

were subject to seizure in connection with the suspected crimes. We conclude

that the absence of any information in the warrant about the nature of the alleged

criminal activity, coupled with instructions to search for both seemingly unrelated

specific items and broad, generic categories, imposed no practical limit on the

officers' discretion to search for "any and all evidence" of the suspect crimes.

Under the circumstances, the warrant failed to satisfy the Fourth Amendment

particularity requirement.15
       The State's reliance on State v. Reid16 and State v. Lingo17 is misplaced.

In Reid, the warrant authorized a search of a murder suspect's house for:
       a shotgun, ammunition for the shotgun, a dark leather or vinyl
       jacket, a pillowcase or other bedlinen with a pattern of daisies,
       leaves, and strawberries on it, nitrates, and any other evidence of
       the homicide     [18]

In Lingo, the court upheld a warrant seeking:



    14 |d
    15 See Higgins, 136 Wn. App. at 94 (warrant authorizing search for "certain
evidence" of "Assault 2nd DV RCW 9A.36.021" was unconstitutionally overbroad).
    16 38 Wn. App. 203, 687 P.2d 861 (1984).
    17 32 Wn. App. 638, 649 P.2d 130 (1982).
    18 38 Wn. App. at 211 (emphasis added).

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No. 67678^-1/9



       any and all evidence of assault and rape including but not limited to
       bedding, clothing, female clothing, blood stains, semen stains, and
       residue or other residue of sexual activity; human hair and any and
       all weapons that may have been used in the commission of said
       crimes/191

Both Reid and Lingo are distinguishable, however, because they involved a

relatively narrow list of specific list of items that were pertinent to the charged

offense. In each case, those specific items provided meaningful examples for

the officers conducting the search. Moreover, neither warrant included the

broad, generic categories of photographs, books, movies, videos, signs, and

images included here.

       Given the broad scope of the authorization to search for generic

categories of items, the remaining portions of the warrant are relatively

insignificant. We therefore reject the State's suggestion that the invalid portions

can be severed from the remainder of the warrant.20 We will not apply the

severability doctrine "where to do so would render meaningless the standards of

particularity which ensure the avoidance of general searches and the controlled

exercise of discretion by the executing officer."21 All items seized pursuant to the

warrant must be suppressed.




    19 32 Wn. App. at 640 (emphasis added).
    20 See State v. Maddox, 116 Wn. App. 796, 805, 67 P.3d 1135 (2003) (severance
doctrine does not apply unless the particularly described items supported by probable
cause are significant when compared to the warrant as a whole).
    21 Perrone, 119 Wn.2d at 558.


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No. 67678-4-1/10




       The State's contention that any error was harmless is not persuasive. The

trial court relied heavily on the explicit videos depicting Jones and D.R.P. that

were seized during the search of Jones's motor home. On the record before us,

the State cannot satisfy its burden of demonstrating that the result would have

been the same without the improperly seized evidence.22

       In his written suppression motion, defense counsel expressly argued that

the generic categories set forth in the warrant were constitutionally overbroad.

Those arguments were sufficient to preserve Jones's challenge on appeal. The

State asserts that Jones abandoned these arguments when defense counsel

failed to request a specific ruling during oral argument on the motion to suppress.

Because the State has failed to cite any authority to support this claim, we

decline to consider it.

       Because we have reversed Jones's judgment and sentence and

remanded for further proceedings, his challenges to various conditions of

sentence may arise again. Accordingly, we note that the State has conceded

that the trial court erred in imposing conditions (2) (payment of the costs of crime-

related counseling and medical treatment); (6 - first sentence) (prohibiting

possession of pornographic materials); (7) (prohibiting possession of sexual
stimulus material for a specific deviancy); and (13) (prohibiting any access of the




    22 See State v. Gulov, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985).


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No. 67678-4-1/11




internet without approval). We accept the State's concession that the court erred

in imposing these conditions.

       Jones also challenges condition 8, which prohibited possession or control

of "any item designated or used to entertain, attract or lure children." This court

recently held that this sentencing condition was unconstitutionally vague.23

       We also agree with Jones that condition 15, which required

plethysmograph testing, is valid only if it is imposed "incident to crime-related

treatment by a qualified provider.24
       Reversed and remanded for further proceedings.


                                                              (jc7X,X

WE CONCUR:




    23 State v. Land, No. 67262-2-I, slip op. at 10 (Wash. Ct. App. January 7, 2013).
    24 Id slip op. at 12.

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