Appeal from Superior Court of King County. Docket No: 92-1-06971-3. Date filed: 07/08/94. Judge signing: Hon. James A. Noe JR.
Authored by William W. Baker. Concurring: Walter E. Webster, Mary K. Becker
The opinion of the court was delivered by: Baker
BAKER, C.J. - John A. Visser appeals convictions for money laundering, promoting prostitution, use of criminal proceeds, and conspiracy to commit money laundering and use of criminal proceeds. He argues that a search warrant did not state items to be seized with sufficient particularity, thus allowing officers to seize evidence of all bank accounts, files, ledgers, and other papers used in his legitimate businesses without regard to criminal activity. Because the crimes involved complex and secretive transactions, we hold that the general categories named in the warrant were sufficiently particular. Finding no error in remaining arguments raised in Visser's pro se brief, we affirm.
Visser owns two legitimate, related real estate companies named Javco Mortgage and Hacienda Investments, Inc. In May 1991 Visser opened a merchant bank account for Javco to process credit card charges. He began to deposit credit card drafts on behalf of Paul Thompson, the owner of several escort businesses which were later determined to be fronts for prostitution. He then transferred the money among his several business accounts. Visser also arranged Thompson's purchase of two apartment complexes in Washington and several rural post offices in other states. Based on affidavits supplied by investigating police officers, a magistrate issued search warrants for a broad range of items at the Visser home and the offices of Javco, Hacienda, and Visser's third, unrelated insurance business. Police seized numerous documents, including legitimate client files for Javco and Hacienda, credit card slips, day planners, phone logs, and various folders and papers.
At trial Visser moved to suppress the seized evidence, arguing that the warrants failed to identify the targeted items with sufficient particularity. The court agreed that the affidavits did not support the seizure of evidence predating March 1990, and declared those provisions severable. The court denied the general motion to suppress in a memorandum opinion, ruling that the warrants were necessarily broad because the transactions were complex and could only be proved by piecing together many seemingly insignificant pieces of evidence. The court also decided that the warrants were sufficiently limited by time periods, named relationships, and the crimes being investigated.
In response to other motions, the court ruled that (1) the money laundering statute did not violate equal protection by requiring a higher mental state for criminal defense attorneys and financial institutions and their employees, and (2) a statute prohibiting joinder of other offenses with "pattern" cases did not require it to sever counts alleging different patterns of criminal profiteering. The court may have refused to declare a mistrial for prosecutor misconduct in cross examination, but the existence of such a motion or ruling is not supported by the record.
Visser challenges warrants to search his home and offices for their failure to describe the items to be seized with sufficient particularity. The particularity requirement is designed to preclude a general, exploratory search of belongings, to prevent the executing officer's unfettered discretion in deciding what to seize, and to discourage warrants grounded in "loose, vague, or doubtful bases of fact." *fn1 Particularity is also necessary to inform the defendant of the nature of items to be seized. *fn2 Reviewing de novo, we must determine whether the warrant stated the items to be seized with reasonable particularity. Thus, we evaluate the warrant as a whole in light of the facts and circumstances contained in the supporting affidavits available to the magistrate. Review is governed by principles of "practicality, necessity and common sense", and the degree of particularity required is determined by the nature of the materials sought and the circumstances of the case. *fn3 General categories may be sufficient if greater particularity is not possible and the search is limited to evidence of the crime, transaction, or relationship in question. *fn4 Detailed descriptions of documents may not be reasonably available to police in cases of conspiracy and complex fraud. *fn5 If all or part of the warrant is too vague, we must then determine whether fruits seized illegally affected the outcome of the trial. We examine all provisions cited by Visser, even though evidence may not have been seized under each, because we must later determine whether the warrant is so vague that the doctrine of severability cannot apply.
Visser contends that several paragraphs of the warrants used terms that were too vague or sweeping in light of the specific information available to the magistrate. He specifically cites paragraphs E, H, N, and another paragraph concerning bank accounts.
At the time the warrants were issued, the magistrate had before him the affidavits of detectives Hardtke and Hay, describing the information accumulated during an extensive investigation of Visser and others. The affidavits alleged that Visser was engaged in money laundering and promoting prostitution by processing credit card slips from an escort service through a merchant account set up for his legitimate business, Javco Mortgage. The investigators theorized that Visser concealed the source of the funds through the two local real estate sales and by transferring money among his several business accounts, including client trust accounts.
Our comparison reveals several differences in specificity between the affidavits and the warrant. First, the detectives believed that Visser laundered money through two real estate deals and several business accounts, yet the warrant allowed for the seizure of records related to "any bank account held in the name of . . . John Visser", and "all . . . records of real estate transactions, records reflecting ownership of personal or real property . . . and other items evidencing the obtaining, secreting, transfer, concealment and/or expenditure of money." The first paragraph allows for the seizure of personal accounts, which were not directly implicated in the investigation. The provision also fails to list the names and numbers of the accounts although they are listed in the Hardtke affidavit. It appears that the broad search described in paragraph E is meant to be limited to evidence of money laundering. The language, however, allows seizure of any item showing the "obtaining . . . or expenditure of money." Under this section, officers seized approximately 300 legitimate real estate files that were later returned to Visser.
Second, Detective Hay declared that promoters of prostitution often use computer equipment to store their records and "beepers, mobile and/or cellular telephones, and phone answering machines for ready access to their clientele and their employees" and recommended seizure of these items. The warrant allows officers to take "Electronic equipment . . . used to generate, transfer, record and/or store the information described above." Because the information sought was very broad, this provision subjected all electronic equipment to seizure. The warrant also provides for unlimited seizure of communication devices. Yet there was no indication that Visser was involved in the day to day affairs of the escort services. Furthermore, while answering machines may contain incriminating messages, the detectives specifically noted that Thompson and Visser never called to or from Visser's business phone. While this provision is overbroad, Visser does not argue that any evidence seized under it was used against him at trial.
Third, the paragraph relating to evidence of financial condition, needed to establish a motive, was not limited to evidence indicating insolvency. Nevertheless, Visser does not contend that ...