Appellate court rules search unconstitutional, throws out child porn conviction
Washington appellate judges have thrown out an Ephrata man's conviction on child pornography charges after ruling investigators improperly searched his computer in March 2009.
Michael Allen Budd was convicted and sentenced to 13 months in prison after a Grant County bench trail concluded in April 2013. Budd immediately appealed his conviction, saying that evidence collected from his computer by Lakewood Police Department Detective Kim Holmes should have been excluded because Holmes did not provide an ample warning that he could call off the search any time he pleased.
Two of three appellate judges in Washington's Third Division of Courts of Appeal agreed. Their decision, and a dissent penned by Judge Kevin Korsmo, can be read in its entirety below:
In overturning the conviction, the judges relied on the Washington Supreme Court's 1998 ruling in the case State v. Ferrier, a case that set a precedent for the process of law enforcement in the state searching a property. Holmes did not have a search warrant when she performed a "knock and talk" at Budd's residence, which is an attempt to solicit answers from and permission to search the property of a suspect before speaking with a judge.
Appellate judges George Fearing and Rob Lawrence-Berry found that Holmes did not provide an ample warning of Budd's rights before entering his Ephrata home.
"A house is considered a castle and entitled to the greatest protection from government entry and roaming," Fearing wrote.
But in his dissent, Korsmo raises the possibility that Budd may have recognized the police did not have a search warrant and agreed to a consultation in his home in order to later have the case against him thrown out on constitutional issues.
"No good deed goes unpunished," Korsmo begins his dissent. He argues that the Ferrier ruling does not apply to this case, because the search targeted only Budd's computer, not the entire of his property. Korsmo also says the oral agreement to continue the search outside the home should hold up in court.
The majority of the court said their decision should not lead to law enforcement abandoning the "knock and talk" technique, saying it "remains lawful ... and we recognize that diligent and honest officers will continue to use this method of investigating crime."
