WILLCOX CHILD PORN CASE SEARCH WARRANT: RARE APPEALS COURT REQUEST FOR ORAL ARGUMENTS
* updated and corrected - 09-21-2016 6:40pm
* updated with clarification of Judge Hoggatt's ruling -10-04-2016 6:25pm
Cochise County trial court allowed introduction of evidence obtained by deficient search warrant
State argues "good faith" exception to exclusionary rule
WILLCOX - The chief judge and vice-chief judge of the Arizona (Division Two) Appeals Court are on the 3-judge panel that will hear oral arguments October 5 in Thomas Lloyd Dean's appeal of a criminal conviction. Dean, of Willcox, AZ, was found guilty last year of a class 2 felony for sexual exploitation of a minor.
According to Jeff Handler, Clerk of the Appeals Court, oral arguments were requested by one of the three judges assigned to review Dean’s case. He explains that the court “does not grant many oral arguments requests in criminal cases” and said it is “much more of a rarity” for the request to be initiated from the panel.
Dean was sentenced by Cochise County Superior Court judge Wallace Hoggatt on September 24, 2015 to 21 years in prison stemming from the discovery of 10 sexually explicit pictures of children on his laptop computer. A report of sexual conduct with a minor in the Willcox area led to police interest in Dean and a search warrant was executed at his residence on July 30, 2012.
Dean was arrested after the photos were discovered during the search and in October 2013 a county grand jury indicted him on 10 counts of sexual exploitation of a minor. The case went to trial August 5, 2015, after a failed challenge to the use of the photo evidence seized under the search warrant.
MOTION TO SUPPRESS EVIDENCE, DENIED
Prior to trial, deputy county public defender Ray Haight argued that a poorly crafted affidavit by Cochise County Sheriffs Office detective John Monroe created an invalid search warrant. Haight further argued that, under the exclusionary rule - also known as the fruit of the poisonous tree doctrine - evidence seized during an invalid search should not be allowed as evidence.
Hoggatt ruled the affidavit submitted by Monroe to Willcox justice of the peace Trevor Ward “was insufficient to allow the judge (Ward) to issue the warrant.” The next question for the Court was to determine if a good faith exception applied which permitted use of the photo evidence despite the search warrant problem.
In Monroe’s affidavit to Ward, he included four categories of items he wanted seized from Dean’s residence: items that could be used to lure children, items used to document criminal activity, any and all electronic devices, and “all items which visually depict minors engaged in exploitive exhibition or any and all other sexual conduct such as, but not limited to, posing nude.”
Hoggatt noted in his Dec. 30, 2014 Decision and Order that three of the four categories failed to satisfy case law regarding good faith exceptions. However, he determined the category about visual depiction of exploitive exhibition was described with enough particularity so that “a law enforcement officer would easily be able to determine” if an item depicted such conduct.
Therefore, Hoggatt ruled, the seizure of the images was “justified” and the defense motion to suppress the photo evidence was denied.
At a defense requested non-jury trial in August 2015, prosecutor/deputy county attorney Lori Ann Zucco moved to dismiss counts 1-9 and entered the one remaining photo as evidence of count 10. Dean was found guilty and Hoggatt sentenced him to 21 years in prison, the lowest number of years in the sentencing guideline.
Tucson-based appeals attorney Emily Danies, appointed by the court, filed an appellant brief on March 8 challenging Hoggatt’s decision to allow the photos to be admitted as evidence.
Danies argues Hoggatt “erred in denying Mr. Dean’s Motion to Suppress Evidence and Motion to Dismiss because the warrant under which the evidence was seized was defective and a good faith exception did not apply.”
Danies also argues that the extent of the deficiency of detective Monroe’s affidavit invalidates any good faith that officers may have relied on to perform the search. The judge’s “failure to suppress evidence taken from (Dean’s) laptop was fundamental and prejudicial error,” writes Danies, the magnitude of which meant “the defendant could not possibly have received a fair trial.” She calls for Dean's conviction and sentence to be vacated.
Amy Pignatella Cain of the Arizona Attorney General’s Office is representing the state in Dean’s appeal. She argues Hoggatt’s good faith exception decision was “well within established precedent” and therefore Dean’s appeal should be denied. Cain also claims Dean, now age 49, was subject to warrantless searches at anytime because of his Missouri parolee status, which would make the good faith exception moot.
Oral arguments will be held 3:00pm October 5 at the Arizona Appeals Court in Tucson. Each side will have 25 minutes to present their position, with the judges expected to ask questions about the case and relevant case law.
The judges will confer later and within a few months will either issue a memorandum decision specific only to Dean’s case or publish an opinion addressing one or more legal points in the case. An opinion of the Appeals Court sets at least temporary precedent within Arizona.
DEAN'S ARIZONA ARREST IMPACTS MISSOURI CONVICTION
At the time of his arrest, Dean was on parole for an 18 year prison sentence in Missouri for eight counts of sex offenses with a minor. Authorities there applied to have Dean designated a sexually violent predator which would have allowed for an involuntary civil commitment upon his release from prison. But a Missouri court ruled in April 2010 that the State “failed in its burden of proof.”
Dean was allowed to relocate to Willcox in July 2010 to be near family and serve his parole under the supervision of the Arizona Dept. of Corrections.
Following Dean’s 2012 arrest in Arizona, Missouri authorities revoked his parole and by September he was returned to a Missouri prison to serve his parole time. He was returned to Arizona on January 2, 2014 under a custody detainer to await trial in the Cochise County jail on the Willcox charge. His Missouri parole expired January 3, 2015.
Dean is currently housed at the Arizona State Prison Complex in Kingman. Judge Hoggatt confirmed calculation of credit due for 599 days that Dean was in jail awaiting trial. Dean is scheduled for released in 2034, followed by nearly 4 years of parole. As part of his sentence Dean is required to register as a sex offender wherever he lives.
=======
Contact reporter Terri Jo Neff at 520-508-3660 and cjw_media@yahoo.com
EDITOR'S NOTE: * updated and corrected 09-21-2016 6:40pm
