SEATTLE — The state Supreme Court unanimously threw out child pornography convictions against a Lake Tapps veterinarian and his roommate, citing problems with the search warrant in their case.
The ruling could lead to the vet being allowed to practice again, one of his attorneys said.
Justice Susan Owens wrote Thursday that the warrant in the case was too broad because it authorized the seizure of items that were legal for the men to have, including adult pornography. Thus, she said, it did not satisfy the Fourth Amendment to the U.S. Constitution.
The ruling came in the cases of veterinarian Mark Besola and Jeffrey Swenson, who lived at Besola’s house. In 2009, after police arrested a friend of Swenson’s on drug and other charges, she told them Besola had bought and sold drugs from and to her, and that she had seen child pornography at his house.
Police obtained a warrant to search for drugs, and while there they saw computer disks with labels suggesting child porn. That prompted them to get another warrant seeking “any and all printed pornographic materials” and “any photographs, but particularly of minors.”
The warrant’s language should have been more specific, Owens said.
“These descriptions could easily have been made more particular by adding the precise statutory language — ‘depictions of a minor engaged in sexually explicit conduct,’ ” she wrote.
The court’s ruling didn’t break any new ground, said Besola’s attorney, Suzanne Lee Elliott. Instead, it simply applied a similar state Supreme Court ruling from 1992.
“Pierce County law enforcement should have been well aware of that before relying on this general warrant to go empty out Dr. Besola’s house,” she said.
Pierce County Prosecutor Mark Lindquist said in an emailed statement that his office would coordinate with local law enforcement agencies to ensure their search warrants comply with the court’s guidance.
Besola never faced any drug charges, and Elliott said he disputed the drug allegations made by Swenson’s friend, who had credibility problems.
Investigators found child porn on dozens of computer disks and on one computer, and Besola was convicted of possession and dealing of child porn. He was sentenced to about three years in prison but has been out on bond pending his appeal.
The Department of Health suspended his veterinary license based on the conviction, but the department noted in its order that it was designed to be “flexible enough to protect the public no matter how the respondent’s criminal case unfolds.” The order, which Besola has appealed, mandates that if he wants to have the suspension lifted he must undergo a psychosexual evaluation.
Department spokeswoman Sharon Moysiuk said the state veterinary board and an assistant attorney general would review the state Supreme Court’s ruling and consider how it might affect Besola’s license status.
John Schedler, a lawyer representing Besola on the appeal of his suspension, said the entire disciplinary proceeding against him must be dismissed.
