State v. Powell

326 P.3d 859, 181 Wash. App. 716
CourtCourt of Appeals of Washington
DecidedJune 10, 2014
DocketNo. 43585-3-II
StatusPublished
Cited by9 cases

This text of 326 P.3d 859 (State v. Powell) 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. Powell, 326 P.3d 859, 181 Wash. App. 716 (Wash. Ct. App. 2014).

Opinion

Worswick, J.

¶1 Steven Powell appeals his convictions for 12 counts of voyeurism, arguing that the trial court erred by denying his CrR 3.6 motion to suppress evidence seized pursuant to an invalid search warrant. The State cross appeals the trial court’s Knapstad1 dismissal of the charge of second degree possession of depictions of a minor engaged in sexually explicit conduct.

¶2 Powell argues that the trial court erred by failing to make written findings of fact and conclusions of law as required by CrR 3.6, and ruling that the affidavit supporting the search warrant established probable cause to issue the warrant. In its cross appeal, the State argues that the legislature’s 2010 amendment1 2 to former RCW 9.68A-.011(3) (2002) expanded the definition of “sexually explicit conduct” to include the conduct depicted within the images that Powell possessed.

[719]*719¶3 Because the trial court was not required to enter written findings and conclusions in this case and the supporting affidavit established probable cause to issue the search warrant, we affirm the trial court’s denial of Powell’s CrR 3.6 motion. But because the legislature’s 2010 amendment to the definition of sexually explicit conduct expanded the definition to include the conduct depicted within the images in Powell’s possession, we reverse the trial court’s Knapstad dismissal of the charge of second degree possession of depictions of a minor engaged in sexually explicit conduct and remand for further proceedings.

FACTS

A. The Affidavit

¶4 Joshua Powell was married to Susan Powell, who disappeared under suspicious circumstances. The State investigated Susan’s disappearance as a kidnapping and murder; Joshua was a person of interest in her disappearance.3 During the investigation, Joshua and his father, Steven Powell, stated that they had over 2,000 pages of Susan’s journal entries.4

¶5 The State requested a search warrant to search Powell’s house and to seize physical and digital copies of Susan’s journal entries (collectively Susan’s journals). The request stated:

That, on or about the 6th day of December, 2009 in West Valley Utah, felonies, to-wit: Murder in the First Degree, a violation of R.C.W. 9A.32.030, Kidnapping, a violation of R.C.W. 9A[.]40-.020, and Obstructing a Public Servant, a violation of R.C.W. 9A.76.020, were committed by the act, procurement or omission of another, that the following evidence, to-wit:
1. Journals belonging to Susan Powell.
[720]*7202. Digital media to include but not limited to laptop computers, traditional tower desk top computers, any type of device that could store digital media such as electronic and or digital copies of Susan Powell’s journals.
[I]s material to the investigation or prosecution of the above described felony.

Clerk’s Papers (CP) at 52-53. The affidavit supporting the search warrant provided the following facts:

Your Affiant was told by Detective Maxwell, that assisting detectives recovered a journal belonging to Susan Powell from her place of employment.... Detective Maxwell reviewed this journal and advised your Affiant of the following information. . . . Susan articulates when she was 19 years of age she was engaged to Joshua Powell. This journal also contains writings from Susan Powell describing marital discord between her and Joshua Powell from 2005 through and to her last entry on October 26, 2009.
Detective Maxwell described to your Affiant that . . . Joshua Powell and Steven Powell appeared on the NBC Today Show. The following facts were broadcasted on national television. Joshua and Steven Powell admitted to possessing 2000 pages of journal entries belonging to Susan Powell.
Steven Powell has announced to the media the importance of these journals to the investigation because Susan Powell describes her relationships with males prior to Joshua Powell; her sexual [ ] fantasies, and it shows how unstable Susan Powell really is. Steven Powell also announced that he and Joshua Powell plan on sharing/releasing more journal entries in the coming weeks using the susanpowell.org website. . . . The statement that they plan on releasing more journal entries leads your Affiant to believe that they have, and are in the act of, or will be scanning and digitally storing additional copies of Susan Powell’s journals on their computers and or digital media devices.

CP at 58-60.

[721]*721B. Search of Powell’s House, Seizure of the Computer Disk, and CrR 3.6 Motion

¶6 The warrant to search Powell’s house and seize Susan’s journals was issued, and the police searched Powell’s house. During the search, the police seized a computer disk from Powell’s bedroom and later searched its contents. The disk contained photographic images of female minors bathing and using the bathroom. Some of these images zoomed in on the minors’ genitalia and breasts, covered and uncovered. The images were photographed from Powell’s bedroom, through the window of a neighboring house.

¶7 Based on these images, the State charged Powell with 14 counts of voyeurism5 and 1 count of second degree possession of depictions of a minor engaged in sexually explicit conduct.6 In the State’s declaration for a determination of probable cause for the charges, the State alleged that the police found images in Powell’s home of unclothed minors bathing and using the bathroom, and that these images were “stored with ... images of Steven Powell himself [that] are sexual in nature and include images of him naked, images of his genitals, and images of him masturbating.” CP at 11.

¶8 Powell made a CrR 3.6 motion to suppress the images on grounds that the search warrant was issued without probable cause. At the motion hearing, the attorneys argued the motion’s merits but did not present testimony or additional evidence. The trial court ruled that the affidavit established probable cause to issue the search warrant and denied Powell’s CrR 3.6 motion. The trial court did not enter written findings or conclusions.

C. Powell’s Knapstad Motion

¶9 Powell made a Knapstad motion to dismiss the charge of second degree possession of depictions of a minor en[722]*722gaged in sexually explicit conduct. Citing this court’s pre2010 interpretations of former RCW 9.68A.011(3)’s definition of sexually explicit conduct, Powell argued that the minors in the images were not engaged in sexually explicit conduct. The State argued that the legislature’s 2010 amendment to the definition of sexually explicit conduct expanded the definition to encompass the conduct depicted in the images. Based on our pre-2010 interpretations of the statutory definition of sexually explicit conduct, the trial court dismissed the charge.

D. Convictions and Appeal

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Cite This Page — Counsel Stack

Bluebook (online)
326 P.3d 859, 181 Wash. App. 716, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-powell-washctapp-2014.