Tommy Tyson was convicted of two counts of Child Molestation in the First Degree and one count of Possession of Depictions of Minors Engaged in Sexually Explicit Conduct.
Mr. Tyson adopted multiple children, including 10-year-old boys ‘AT’ and ‘BT’. During an actual adoption celebration a CASA (‘Court Appointed Special Advocate’) social worker saw a photo of a child exposing his penis on Mr. Tyson’s cell phone while AT was scrolling through pictures. The CASA worked asked to see the picture again. AT refused, stating it was a photo of a “pinky finger”, not a penis. The CASA worker confronted Mr. Tyson, who obliged his request to see the image and admitted the photo was of AT. He then deleted the photo and a video.
The CASA worker contacted WA Child Protective Services, who went with law enforcement to remove the children from Mr. Tyson’s home. CPS was aware of and informed the officer involved of a history of “unfounded” sexual allegations at Mr. Tysons’ residence. The CASA worker told CPS about the image seen on Mr. Tyson’s cell phone, who in turn told the police accompanying CPS. When CPS and the police were at Mr. Tysons’ residence to collect the children, the deputy saw a cell phone on a table and told Mr. Tyson he was taking possession pending a search warrant. Mr. Tyson said he had already deleted the image, but the deputy believed photos could be recovered and got the passcode from Mr. Tyson to unlock the phone. However, he did not search or go into the phone. The deputy took possession because he was concerned that “evidence on the phone would be destroyed” if the phone was not secured.
A friend of Mr. Tyson’s later contacted law enforcement and reported he gave her a laptop and hard drive because he was afraid they contained a photo of AT holding Mr. Tyson’s penis. Mr. Tyson’s brother then reported to law enforcement that his brother was deleting items from his computer the day before CPS arrived, admitting that he had “questionable porn”. Mr. Tyson then asked his brother to take his laptop and hard drive out of state, which his brother refused. He later learned of the exchange of the items with the friend. A warrant was authorized to secure Mr. Tyson’s cell, laptop and hard drive.
Mr. Tyson’s hard drive uncovered hundreds of photos and videos of minor boys engaging in oral and anal sex, and there were nude photos of AT and BT. Later forensic interviews of AT and BT revealed disclosure of sexual abuse by Mr. Tyson. A second warrant made specific mention of the observations by the CASA worker and what the friend heard when Mr. Tyson dumped the laptop and hard drive with her. When updated digital technology was utilized to search Mr. Tyson’s cell phone, images of AT and BT depicted them with Mr. Tyson’s penis in their mouths, along with several other images. A third warrant then sought evidence from Mr. Tyson’s devices of child rape.
Mr. Tyson moved to suppress all digital evidence specifically located as it is described here, arguing the deputy’s taking of the cell phone without a warrant was unlawful, and the first warrant lacked specificity. Subsequent discoveries through warrants #2 and #3 were “fruit of the poisonous tree”.
The officer’s confiscation of the cell was authorized by the “existent circumstances” exception. The information provided by the CASA worker, friends, and Mr. Tyson’s brother provided enough particularity to be sufficiently reliable for probable cause, since they provided facts and circumstances sufficient to establish a reasonable inference Mr. Tyson was involved in criminal activity and evidence to the crime could be found at the place to be searched, citing State v. Scherf, 192 Wn. 2d. 350, 363 (2018). Mr. Tyson’s challenge that the second and third warrants did not describe the parameters of the search with enough particularity failed because he did not make this challenge at the trial court level. Since no search was conducted of Mr. Tyson’s cell phone (or any device) until after a search warrant was obtained and executed, the evidence from the cell phone was admissible under the concept of the “independent source doctrine”, Tyson, at pg 14.
Mr. Tyson’s case is amazing, in that one would made the logical assumption that someone would not retrain evidence of hands-on criminal conduct on one’s cell, laptop and hard drive. Yet, I have had a very similar scenario occur regarding discovery of an inappropriate image of my client’s victim on his cell phone.
Law enforcement had every right to siege Mr. Tyson’s phone before it would likely have been ‘lost’, stolen’ or ‘destroyed’.