Washington state attorneys square off in a Tacoma courtroom Monday during a motion hearing that will determine the course of 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 will hear arguments over whether certain evidence can be admitted at the May 7 trial of 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 obtained by law enforcement and served on Powell's home last summer.
Defense attorneys Mark Quigley and Travis Currie claim some evidence obtained by law enforcement including a CD containing photos from 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 law enforcement 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, homicide and obstruction of justice."
Quigley and Currie argue 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.
Law enforcement had one Susan Powell 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 before he killed himself and his two sons in February in a blaze set at his Graham, Wash., rental home.
Prosecutors have fired back that the majority of evidence taken from Steve Powell's home should be used at his trial.
"The warrant is valid, and there is no basis to suppress the evidence seized," wrote prosecutor Grant Blinn in a recent motion. "There is probable cause for the items to be seized, there is a nexus to the crimes being investigated and the search warrant is particular in what is being sought."
Blinn stated the search warrant wasn't overly broad and that the journals seized tied into the Susan Powell investigation.
"As the journals were written by the victim of the homicide investigation who has yet to be located, their content was very relevant and could develop further leads as to who to talk to or where to search. There is a nexus to the crimes," Blinn wrote.
"The search warrant lists out real crimes that are being investigated. The search warrant does not depend on generalized statements about people who commit murders or kidnappings and does not just ask for the seizure of a computer to see what is on it," Blinn wrote.
The search warrant specifically sought access to devices that could contain digital copies of the journals, Blinn wrote.
"The digital images were known to exist, but the investigators did not know the extent of the digital copies or precisely what device they were stored on. The paragraph was as specific as it could be given the information that the investigators knew at the time," Blinn wrote.
Steve Powell's attorneys have said 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 wrote that while Steve Powell consented to a May 11, 2010, search of his home, his cooperation with investigators did not continue.
"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," Blinn wrote.
Steve Powell later withdrew his offer to release the journals, Blinn wrote.
During an initial court hearing for Steve Powell last fall, Blinn said Steve Powell took images 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 a $200,000 bail.
A ruling from Culpepper could significantly impact how the case against Steve Powell proceeds, said Anne Bremner, a Seattle attorney who represents Chuck and Judy Cox, the parents of Susan Powell.
If defense attorneys successfully argue that some or all of the evidence gathered with the search warrants should be suppressed, prosecutors could find themselves with a lack of independent evidence and difficulties in proceeding with the case, Bremner said.
Monday's hearing also holds other possibilities, Bremner said. In what is known as a CrR 3.6 hearing, Steve Powell could speak about the evidence against him, she said.
"We may hear through testimony more about what led the police to seek the warrants," said Bremner, who plans to attend the Monday hearing with Chuck Cox. "We could even hear from Steven Powell himself if he elects to testify ... both sides can present evidence and testimony."
Sheriff's deputies from Tacoma, Wash., 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 and also state he secretly filmed underneath her skirt.
Chuck and Judy Cox have previously said the Cox family is hopeful Steve Powell's trial may possibly bring forth answers in the case of their missing daughter.
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List of witnessesfor Steve Powell case so far
Twelve of the 28 people listed as potential witnesses by prosecutors are employed by West Valley City. Another eight are Pierce County Sheriff's Office employees. Some witnesses on the list are identified only by their initials presumably the victims whom Steve Powell is accused of surreptitiously filming.
West Valley City Police Department witnesses are Detective Ellis Maxwell, John Dietrich, John LeFavor, Mike McPhie, Michael Schwemmer, Michael Fossmo, Phil Quinlan, Steven Katz, William Merritt, Robert Bobrowski, Todd Gray and Tracy Catmull, an evidence technician.
Jennifer Graves, Steve Powell's estranged daughter who lives in West Jordan, is also on the witness list. Watch live on KIRO TV: