//APPEALS COURT: Cochise County search warrant unconstitutional; illicit photos can’t be used in prosecution

APPEALS COURT: Cochise County search warrant unconstitutional; illicit photos can’t be used in prosecution

By Terri Jo Neff

Willcox sex offender’s pornography conviction reversed
Justice of the Peace Ward erred in approving CCSO request; Superior Court judge Hoggatt erred in finding “good faith” exception
TUCSON – Thomas Lloyd Dean, a Willcox man serving a 21 year sentence for possessing sexually explicit photos of children has had his 2015 conviction reversed by the Arizona Appeals Court. Theappellate court in Tucson ruled January 12that a search warrant used by Cochise County Sheriff’s Office detective John Monroe to seize a computer from Dean’s residence in 2012 was “facially invalid and in clear violation of constitutional requirements.”

The opinion reverses a December 2014decision by judge Wallace Hoggattthat allowed evidence of child pornography to be admitted at Dean’s August 2015 trial.
Dean’s trial attorney, former Cochise County public defender Raymond Haight, had previously challenged the seizure of Dean’s computer on grounds that the warrant was invalid. Hoggatt ruled that although the warrant was “faulty” and “deficient” detective Monroe had relied on the issuing judge’s decision “in good faith” when he seized Dean’s computer.
The appeal decision authored by chief judge Peter Eckerstrom reads in part “a search warrant which does not particularly describe either the place to be searched or the items to be seized is not facially valid.” Eckerstrom also noted “a warrant that seeks to search a computer must specifically state that a computer is among the items to be seized” and a warrant “allowing an officer to search a defendant’s electronic materials without specifying what the officer is looking for” does not qualify for a good faith exception.
Eckerstrom’s opinion (with presiding judge Garye Vasquez concurring) pointed out the affidavit detective Monroe submitted to judge Trevor Ward of the Willcox Justice Court for the search warrant did not provide “probable cause to believe Dean possessed child pornography” 18 months after an alleged act of child molestation that Monroe was investigating.
dissenting opinion:  weigh small mistakes by detective against letting guilty, dangerous man go free
Judge D. Douglas Metcalf dissented in the 2-1 decision. Metcalf cautioned that “the majority opinion does not weigh the relatively small mistakes the detective made in drafting the affidavit and warrant against the high cost of letting a guilty and possibly dangerous defendant go free.”

Dean was under investigation at the time for molesting a young Willcox boy in 2010. He was previously convicted in Missouri of sex crimes involving children and was on parole in Arizona with the consent from Missouri officials. Although Dean was not charged in the molestation case, he was prosecuted by the Cochise County Attorney’s Office for possessing the illicit photos.
One of the images was admitted as evidence at Dean’s trial and he was found guilty by judge Hoggatt on one count of sexual exploitation of a minor for possessing a “visual depiction of a minor under age 15 in exploitive exhibition or other sexual conduct.” Dean was then sentenced to 21 years in state prison.
Dean’s appealwas written by court-appointed attorney Emily Danies of Tucson. The Arizona Attorney General’s Office is representing Cochise County and the State of Arizona. The AG’s office has until March 15 to petition the Arizona Supreme Court for review of the recent decision. If the reversal stands Dean’s case will be returned to judge Hoggatt for final action. Until then he remains in custody at the Arizona State Prison Complex in Kingman.
molestation allegations from 2010 not prosecuted, but evidence collected used in porn possession case
According to court records, the mother of Willcox boy came forward in summer 2012 to accuse Dean of sexually assaulting her child back in 2010, when the boy was 6 or 7 years old. The incident allegedly occurred on property where Dean lived but in another residence. It is unclear why there was a delay in reporting the assault but the parents admitted knowing Dean was a convicted sex offender.
Detective Monroe wrote an affidavit in support of a search warrant and drafted the list of items to be seized, which was approved by judge Ward. Monroe then executed the search at Dean’s residence in Willcox and seized the computer along with Dean’s cell phone and camera. Thousands of images of child pornography were later discovered on the computer; none of the images involved the Willcox boy.
The appeals decision noted there was no explanation as to how some items Monroe wanted to seize were connected to the molestation case. For instance, the victim did not state he was photographed by Dean or shown pornography, yet explicit images of children was part of the search. In addition, although Monroe “provided probable cause to believe Dean had committed child molestation or sexual conduct with a minor” the alleged incident did not occur in the building described on the search warrant.
Eckerstrom also noted Monroe’s affidavit offered no nexus between molestation activity and child pornography, nor did the detective mention Dean’s prior conviction for sex crimes against children or that Dean admitted taking photographs of those victims.
no deliberate malfeasance by detective
Amy Pignatella Cain ofthe AG’s office concededthat detective Monroe “knew more than what he put in” the affidavit and could have written the list differently, but she contended judge Hoggatt was correct in ruling Monroe acted in good faith throughout the process. Cain also argued the warrant “was not facially deficient to this officer” because he was the detective executing the warrant. “He knew what he was looking for,” she added, and therefore the search was valid.
The appeals court found “no evidence of any deliberate malfeasance” by detective Monroe, who at the time was handling his first child sex crime case. Judge Metcalf, a Pima County Superior Court judge sitting on the appeals panel, noted in his dissent that “to the extent that the detective made mistakes in articulating probable cause to seize Dean’s computer, they were neither systematic nor deliberate.”
Metcalf argued the good-faith exception ruling by judge Hoggatt should stand and so too should Dean’s conviction and sentence. He also questioned why it should be required for affidavits to specifically reference the “common-sense relationship between child molestation and child pornography” when such correlation “is too real and too grave to ignore.”
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Contact reporter Terri Jo Neff at 520-508-3660 and cjw_media@yahoo.com
EDITOR’S NOTE: At oral arguments at the Appeals Court in early October 2016, judge Eckerstrom asked somewhat rhetorically if the job of judges wasn’t to carefully scrutinize law enforcement officer’s requests for search warrants so that officers [presumably less well-trained in the law] would not carry out unconstitutional searches.
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