State v. Askham

120 Wash. App. 872
CourtCourt of Appeals of Washington
DecidedMarch 30, 2004
DocketNo. 21413-3-III
StatusPublished
Cited by26 cases

This text of 120 Wash. App. 872 (State v. Askham) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Askham, 120 Wash. App. 872 (Wash. Ct. App. 2004).

Opinion

Sweeney, J.

— A search warrant must be sufficiently particular to prevent a general exploratory search. This is frequently achieved by specifying the suspected crime. State v. Riley, 121 Wn.2d 22, 28, 846 P.2d 1365 (1993). The search warrant here authorized the seizure of a broad range of computer files and images, but did not specify a crime. We conclude nonetheless that the warrant was specific enough. We also conclude that the evidence was sufficient to support Leonard Askham’s convictions for second degree theft, criminal harassment, stalking, and libel. We therefore affirm the judgment.

FACTS

Mr. Askham’s relationship with Sue Melhart ended in January 2000. His efforts to revive the relationship failed. Ms. Melhart developed a romantic relationship with her neighbor, Gerald Schlatter. Mr. Schlatter was Facilities Development Director at Washington State University (WSU).

On January 17, 2001, WSU President Lane Rawlins; Greg Royer, Vice President for Business Affairs and Gerald Schlatter’s upper level supervisor; and Assistant Attorney General Antoinette Ursich, WSU counsel, received an anonymous e-mail accusing Mr. Schlatter of inappropriate [876]*876use of a state computer. The e-mail accused Mr. Schlatter of visiting pornography and racist World Wide Web (Web) sites. An administrative investigation concluded the accusations were unfounded.

Mr. Schlatter turned over additional e-mails received on his office computer welcoming him as a member of various porn and racist Web sites. One of the sites — lycos.com— displayed two manufactured images of Mr. Schlatter’s face electronically pasted onto a picture of a man receiving oral sex from a young male. The manufactured images were uploaded from an IP (Internet Protocol) address that was assigned to Leonard Askham. A lycos.com “photo center” account was also set up. There, more manufactured sex scenes were posted purportedly featuring Mr. Schlatter. Mr. Schlatter also received anonymous e-mails threatening to ruin his professional and social life and to inform the Federal Bureau of Investigation of these manufactured activities.

These e-mails originated from two locations with public Internet access — a business in Spokane and a public library in Coeur d’Alene, Idaho. With the cooperation of the Internet service provider and the Web site provider, investigators learned that the IP addresses were assigned to a user identified as “askham” at the relevant time. The handwritten account names and passwords were later found in Mr. Askham’s home office.

The Pullman Police Department and the university president’s office were also mailed hard copies of the manufactured images with a note: “Do you want a man like this, who is also a white spremasist [sic], working for your University?” Ex. 3. The Web site subsequently displayed more homoerotic images purportedly of Mr. Schlatter. The account “askham” was traced to Bird Shield Repellent Corp., with an address and phone number in Pullman belonging to Leonard Askham.

Police obtained a search warrant to seize Mr. Askham’s computer and search his residence for evidence relating to all of this. The evidence recovered included an envelope [877]*877addressed to Mr. Schlatter containing Mr. Schlatter’s image and pornographic shots that matched those on the Internet sites. In a trash can searchers found numerous pictures from which the manufactured images had been obtained. A large number of entries of personal information about Mr. Schlatter were found in Mr. Askham’s handwriting, as well as documents Mr. Schlatter had disposed of in his trash. Handwritten drafts of the threatening e-mails were also found in Mr. Askham’s home office. The investigation of Mr. Askham’s computer showed that it had altered the Internet images.

The State charged Mr. Askham with felony harassment, stalking, second degree theft, and libel. He challenged the particularity of the search warrant and moved to suppress the information. The court denied his motion.

The issue before the court at Mr. Askham’s bench trial was whether Mr. Askham was the perpetrator. Mr. Ask-ham’s defense was that his computer was hacked by some person or persons unknown who wanted to injure Mr. Schlatter and frame Mr. Askham.

The court found the evidence compelling that someone had used Mr. Askham’s home, identity, and computer to wage an electronic campaign to destroy Mr. Schlatter. The court found no evidence supporting the existence of a third party with a motive or opportunity to do this. The court then entered findings and conclusions and a judgment of guilt for felony harassment, stalking, second degree theft, and libel.

DISCUSSION

Search Warrant Affidavit

The first issue on appeal is whether the search warrant met the Fourth Amendment particularity requirement.

Mr. Askham challenges the sufficiency of the affidavit supporting the search warrant. He argues that neither this search warrant nor the accompanying complaint specify the crimes under investigation. Nor does the warrant specify [878]*878the particular items to be seized. Although the warrant does mention Mr. Schlatter a couple of times, Mr. Askham contends this is not enough to limit the search to items connected with Mr. Schlatter. Moreover, he contends, a search limited to items relating to Mr. Schlatter is not limited to “criminal activity.”

We review the legal sufficiency of a search warrant de novo. State v. Stenson, 132 Wn.2d 668, 691, 940 P.2d 1239 (1997). And we assess the validity of each warrant on a case-by-case basis. State v. Perrone, 119 Wn.2d 538, 546-47, 834 P.2d 611 (1992).

The Fourth Amendment provides that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const, amend. IV; Stenson, 132 Wn.2d at 691. The purpose of the particularity requirement is to prevent the State from engaging in unrestricted “exploratory rummaging in a person’s belongings” for any evidence of any crime. Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). The description of the items to be seized should leave nothing to the executing officers’ discretion. United States v. Hurt, 795 F.2d 765, 772 (1986), amended on denial of reh’g, 808 F.2d 707 (9th Cir. 1987). The officers should be able to “identify the property sought with reasonable certainty.” Stenson, 132 Wn.2d at 692.

The required degree of particularity may be achieved by specifying the suspected crime. Riley, 121 Wn.2d at 27-28. Otherwise, the warrant must contain some other means of limiting the items to be seized. Id. The description should be as specific as the circumstances permit. Stenson, 132 Wn.2d at 692. If the nature of the underlying offense makes descriptive precision impractical, however, generic classifications may be acceptable. Riley, 121 Wn.2d at 28 (citing Perrone,

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Cite This Page — Counsel Stack

Bluebook (online)
120 Wash. App. 872, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-askham-washctapp-2004.