A Pierce County special prosecutor has agreed that an Olympia police detective did not have a warrant when she searched a computer belonging to Fisher and found suspected child pornography there.
Thursdays filing by the prosecutor could mean a dismissal of 14 counts of possession of child pornography against Fisher during a court hearing Monday, Paul Strophy said.
The filing by the special prosecutor, Scott Peters, does not give any exception to the requirement that the Olympia detective should have had a warrant when she began her initial search of Fishers computer.
Based on his response brief, hes basically not contesting that the initial search was unlawful, Strophy said Friday.
Peters filing is a response to a motion filed by Fishers attorneys, Strophy and Todd Maybrown, asking for a dismissal of Fishers pending 14 counts of possession of child pornography, based on the warrantless search.
Peters states in his court filing that he believes Olympia police acted in good faith when a detective seized Fishers cell phone and computer in an effort to locate him after he went missing in July. However, good faith is not an exception to the requirement that police first obtain a warrant for a search, Peters states.
Police were acting in good faith in this case, however, Article 1 section 76 of our State Constitution does not recognize a good faith exception to the warrant requirement..., reads Peters response. If the Court disagrees and finds an exception the case can continue.
Thurston County Superior Court Judge Christine Schaller will hold an evidentiary hearing on Strophys motion to dismiss Monday morning.
Olympia police began searching for Fisher on July 23, after he was reported missing. Fisher was last seen July 22, just before midnight. On July 24, police took Fishers cell phone and his computer from his young niece and nephew, who were staying at Fishers home. Detectives wanted to look at Fishers computer because they wanted to see if e-mails would give them any clues about his whereabouts.
At about 2 a.m. on July 25, Fisher called 911 from a grocery store on the west side. He was dehydrated and disoriented, but otherwise unharmed. He told police he had no memory of the time he was missing. At around 9 a.m. on July 25, detectives contacted Fisher and returned all of his property, except for his computer.
According to court papers:
After Fisher was found safe, Olympia Detective Paul Evers contacted Detective Rebecca Fayette, who is trained in computer forensics and was analyzing Fishers computer. Evers asked when Fishers computer could be returned to him. She said she needed time to reassemble it, as the hard drive had been removed.
Fayette contacted Evers a short time later to report that shed seen what later were determined to be depictions of boys between 10 and 13 years old engaged in sexually explicit conduct on the computer.
On July 27, the lead detective in the case obtained a search warrant for Fishers computer and found 151 suspected images of child pornography, according to court papers. Subsequent searches of computers Fisher used at the Playhouse turned up additional images of suspected child pornography.
Strophy has always maintained that there were serious constitutional issues raised by the Olympia Police Departments initial, warrantless search of Fishers computer.
Peters, in his response to Strophys motion, does not assert any exception in Fishers case that would allow a warrantless search. Peters states in his motion that police did have the right to initially seize Fishers computer while acting in their capacity as community caretakers, in other words, to assist someone in an emergency for health or safety reasons. (T)he police were acting with a belief that the defendant needed assistance and that he could be in danger, Peters states.
However, Peters added in his motion: While the initial seizure of the computer was valid under the community caretaking function...the search by detectives by clicking on several buttons and looking at images was done 4-5 hours after the detective knew the defendant was found. Therefore, the community caretaking function no longer applied at that time.
Peters was appointed a special prosecutor in the case because the elected prosecutor in Thurston County, Jon Tunheim, has ties to the Capital Playhouse. His wife is a board member there, and his children have participated in musical theater and other programs at the Playhouse. Tunheim appointed Peters as a special prosecutor to avoid the appearance of a conflict of interest.
The Playhouse, on Fourth Avenue in downtown Olympia, puts on plays involving children and teens and runs childrens theater and musical workshops.
Fisher, 52, has had a large number of supporters appear alongside him during court hearings. A number of them have said they would continue to allow their children to take voice lessons from him as he awaited the disposition of the charges. Fisher has always maintained his innocence of the charges against him. Strophy said Fisher was unavailable Friday.
Jeremy Pawloski: 360-754-5445 email@example.com