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Washington v. Smith

as corrected.: February 25, 1991.


Ringold, J.*fn* Grosse, C.j., and Scholfield, J., concur.

Author: Ringold

The defendant, Roger D. Smith, appeals from the judgment and sentence imposed after he was found guilty on August 3, 1989, at a stipulated bench trial,

of 23 counts of violating former RCW 9.68A.050(1),*fn1 dealing in depictions of a minor engaged in sexually explicit conduct, and three counts of possession of depictions of a minor engaged in sexually explicit conduct. Former RCW 9.68A.070.*fn2 He assigns error to the trial court's denial of a motion to suppress evidence seized pursuant to a search warrant. Smith's primary contention on appeal is that the affidavit supporting issuance of the search warrant was constitutionally defective. We agree and reverse.

The physical evidence supporting the convictions was seized pursuant to a federal search warrant issued on May 19, 1989. The charges of "dealing" in depictions were based on evidence that the defendant copied onto videotape for his own use commercially prepared 8 mm. films. There was no evidence that Smith distributed or traded pornography, that he had personally taken any pictures of minors engaged in sexually explicit conduct, or that he had ever had sexual contact with any minor.

The search warrant was issued by a federal magistrate, pursuant to an FBI investigation of violations of 18 U.S.C. ยงยง 2251 et seq., the Sexual Exploitation of Children Act.*fn3 The affidavit in support of the search warrant was prepared by Patrick Ross, an FBI agent with specialized training "in the area of sexual exploitation of minors." para. 2. The bulk of Agent Ross's 19-page affidavit is devoted to establishing the following "pedophile" profile:

11. This affiant states that pedophiles are defined as persons whose sexual objects are children. They receive sexual gratification and satisfaction from actual physical contact with children and from fantasies involving use of pictures and other photographic or art medium. The word pedophile means child (pedo) lover (phile). Pedophilia means the attraction to (philia) children (pedo).

Affiant states that as a result of the aforementioned training and experience, I have found the following characteristics to be true of pedophiles:

a. Pedophiles have a specific age preference for the juvenile victim and that when the victim surpasses this age, the pedophile, no longer having sexual interest in the victim, will seek out a younger juvenile to take the victim's place sexually.

b. Pedophiles will not stop or remain with one juvenile victim, but will constantly seek out new victims, using the same method of seduction that has been successful for him/her in the past.

c. Pedophiles will never stop their sexual activity after one juvenile victim, but will continue to molest juveniles whenever the opportunity arises.

d. Pedophiles will retain photographs, magazines, movies and correspondence relating to the sexual victimization of children. This retention will span many years and the material is used by the pedophiles to lower the child's inhibitions and to relive the pedophiles' sexual experiences with his/her juvenile victims. It has been my direct experience as well as the experience of other investigators who have worked in this field nationwide, that pedophiles have retained this type of material in excess of twenty years for the purposes aforementioned.

e. Pedophiles will frequently seek out employment or become involved in volunteer services to be close to children and to use the authority so vested by position and age to victimize children with whom he/she comes into contact. In short, pedophiles seek some manner of access to juvenile victims.

f. The majority of pedophiles prefer contact with children of one sex, as well as in a particular age or developmental range peculiar to each individual.

g. Pedophiles obtain, collect and maintain photographs of the children they are or have been involved with. These photos may depict children fully clothed, or in various stages of undress or totally nude, in various activities, not necessarily sexually explicit. These photos are rarely, if ever, disposed of and are revered with such devotion that they are often kept on the pedophile's person and/or in an area that is readily accessible to the pedophile.

h. Pedophiles often keep the names of children they are involved with or with whom they have had some kind of sexual

contact. These names may be maintained in phone or notebooks, or merely on scraps of paper.

i. Pedophiles often correspond with or meet with one and another, share information and identities of their victims as a means of gaining status, ...

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