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Key ruling on Steve Powell evidence set for this morning

Published April 24, 2012 7:26 am

Courts • Judge to decide on allowing CDs, journals taken under search warrant.
This is an archived article that was published on sltrib.com in 2012, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

A Washington state judge is considering whether certain evidence can be admitted next month at the pornography and voyeurism trial for the father-in-law of missing West Valley City woman Susan Cox Powell.

Pierce County Superior Court Judge Ronald E. Culpepper heard arguments Monday at a motion hearing for Steven Craig Powell, 61, who is charged with 14 counts of voyeurism and one count of possessing an image of minors engaged in sexually explicit conduct.

At issue is the constitutionality of a search warrant served by a Pierce County Sheriff's detective at Powell's home last summer.

Culpepper is expected to announce his ruling at 9 a.m. Tuesday. Powell's trial is set for May 7.

The decision could significantly impact how the case against Steve Powell proceeds. If the judge sides with defense attorneys, who argued that some or all of the items gathered at the home should be suppressed, prosecutors could find themselves with a lack of independent evidence and difficulties in proceeding with the case.

Steve Powell, who attended the hearing in Tacoma, whispered at times to his attorneys as they made arguments to the judge. Powell's daughter, Alina Powell, was also in court, as were Chuck and Judy Cox, the parents of Susan Powell.

Defense attorneys Mark Quigley and Travis Currie claim some evidence obtained by law enforcement — including a CD containing photos found in a locked compartment in Powell's bedroom during an Aug. 25 search of his Puyallup, Wash., home — was gathered through an overly broad search warrant that violated his constitutional rights.

The search warrant allowed Pierce County authorities, who were working with Utah homicide detectives, to seize journals belonging to Susan Powell, digital media that contained copies of her journals, as well as "any other fruits or instrumentalities determined to be evidence of kidnapping, murder and obstruction of justice."

Quigley and Currie argued that taking the CDs violated Steve Powell's Fourth Amendment rights since law enforcement didn't explain why the journals would have any evidence of criminal conduct, what type of information may be in the journals, or how that information may be evidence of a crime or assist in providing investigative leads.

Police investigating the case of Susan Powell already had one journal written from January 2002 to October 2009, which included entries during the time she was married to Josh Powell — the only publicly named person of interest in the case, who killed himself and his two sons in February in a blaze set at his Graham, Wash., rental home.

Quigley told the judge that police were merely on a "fishing expedition" to seize the journals, which were written before Susan Powell met her husband and would have no relevance to the investigation into Josh Powell. He asked the judge to rule there was no probable cause to seize the journals and the digital media taken from his client's home. "These journals pre-date her marriage to Josh Powell. On its face, it's extremely unlikely these would have any information about Josh Powell," said Quigley, asking the judge to find that no probable cause existed to seize the journals, and therefore the digital media taken from Steve Powell's home.

Quigley argued that Steve Powell was open about having his daughter-in-law's journals and went on the "Today" show to talk about the journals to present his theory that Susan Powell had possibly run away with another man. Quigley suggested that Steve Powell wouldn't have spoken publicly about the journals if they contained incriminating evidence about him or his son. He also questioned the timing of the search warrant.

"What inference can we draw? One inference is that the investigation was stale. That the police were frustrated and they needed a reason to enter the Powell household to look for further evidence," said Quigley, who questioned why it took police nine months to get a search warrant for the journals.

"We know literally nothing about the content of these journals. It's absolute speculation ... it's exactly what the Fourth Amendment is designed to protect all citizens from," Quigley said.

Prosecutor Grant Blinn fired back that Steve Powell bragged on national television that the journals were important to the investigation of his missing daughter-in-law, but then refused to cooperate with police. He suggested Steve Powell brought on the search of his house himself, because had he not appeared on the "Today" show police would have had more difficulty in obtaining a warrant for the journals, Blinn said.

Blinn said West Valley City police had other writings from Susan Powell, including a statement indicating that if she disappeared or died and it looked like an accident that her husband may be involved. That was enough for police to want to read the woman's other writings in possession of Steve and Josh Powell, Blinn said.

"It's a fair inference that these writings would contain relevant information to assist investigators," Blinn said, telling the judge the warrant is valid, not overly broad and there isn't a basis to suppress evidence seized. Blinn maintained that there was probable cause to seize evidence from Steve Powell's home and that there is a nexus between the evidence seized and crimes being investigated.

Blinn said that even if the search warrant spelled out specifics of what investigators hoped to find, such as CDs, the defense would try to argue that whatever police wrote in the warrant wasn't specific enough.

"They would say, 'They didn't say Panasonic CDs, they took Sony CDs," Blinn argued. "What they're trying to create is a moving target that law enforcement will never be able to effectively hit in Susan Powell's disappearance.

Steve Powell's attorneys argued he was cooperative with police — consenting to two searches of his home, which he had been sharing with his sons and grandsons, before the August search warrant was issued. Steve Powell also gave multiple interviews to law enforcement and told them about the journals in a November 2010 email, they argue.

Blinn said that while Steve Powell consented to a May 11, 2010, search of his home, he later withdrew his offer to release the journals. "Defendant did not turn over the journals. Instead, defendant and his son tried to bargain with the investigators ... they would release a copy of the journals and would only release that if the investigators turned over to them the journal that investigators had in their possession," he said.

During an initial court hearing for Steve Powell last fall, Blinn said Powell took images of girls as young as 8 years old over a 10-year span, although the court case focuses on voyeurism episodes from 2006 and 2007. Powell, who has pleaded not guilty, is being held in the Pierce County Jail on $200,000 bail.

Pierce County sheriff's deputies arrested Steve Powell on Sept. 22 after detectives from West Valley City returned to search the home Powell shared with Josh Powell, his grandsons and his adult children Alina Powell and John Powell.

The search warrants, unsealed earlier this month, detail Steve Powell's sexual interest in his daughter-in-law, including assertions that he secretly filmed underneath her skirt and pasted photos of Susan Powell's head on images of nude bodies.

Alina Powell has called the evidence against her father fabricated and said prosecutors' arguments contain "quite a number of fallacies and/or factual errors."

Chuck Cox reiterated his belief on Monday that Steve Powell knows what happened to his daughter — who disappeared in December 2009 from her West Valley City home — and said he's hopeful Steve Powell's trial may bring forth answers in the missing woman's case.

mrogers@sltrib.com Twitter: @mrogers_trib