Kennewick man asks judge to toss evidence in voyeurism, child pornography case

Kristin M. Kraemer, Tri-City HeraldMarch 29, 2013 

A Kennewick man wants a judge to throw out all evidence in his voyeurism and child pornography case because he and his wife weren't told they could refuse to let detectives search their home without a warrant.

Dan Richard Dickey, 66, said investigators were upfront about wanting to look for possible videos or photographs of nude children on his personal computer when they stopped by on Nov. 27.

But Dickey -- who was president of the Kennewick Police Department Foundation at the time -- testified in a recent hearing that Benton County sheriff's Detective Larry Smith failed to advise him that he could deny the request.

"Did he tell you that you could limit where he looked?" attorney John Jensen asked Dickey in Benton County Superior Court this week.

"Not really," Dickey answered.

However, Deputy Prosecutor Terry Bloor questioned if Dickey didn't have a better understanding of his rights than he's admitting.

After Smith saw a half-inch image of what appeared to be young children under the file name "Nudist family fun," the detective stopped Dickey from clicking on other desktop icons and files and said he wanted to do a more thorough search of the computer back at the sheriff's office.

Dickey signed a consent form so the detective could leave with the home computer, but he wouldn't let Smith take his laptop because that was needed for his work as a real estate agent.

Bloor said that shows Dickey knew he didn't have to allow the search and seizure.

"I guess in that sense, yes," Dickey replied.

Jensen argued that anything suspicious found on the computer during that initial check, along with any evidence that came out of a later search warrant, should be suppressed and not allowed at the trial.

He says that home is the most private area a person can have, and suggests that detectives didn't have Dickey sign the consent form at the beginning because they did not want him to be aware of his rights until they got onto the computer.

Tossing out all of the evidence likely would lead to a dismissal of Dickey's charges for voyeurism and second-degree possession of depictions of a minor engaged in sexually explicit conduct.

Judge Craig Matheson, who presided over the one-hour hearing, wanted time to consider whether Dickey thought he was in a coercive setting and couldn't say no. The judge is expected to announce his decision next week.

Dickey's trial is set for April 15. Jensen told the court that depending on the ruling, he thinks the case will be resolved one way or another before a jury is called in.

Prosecutors allege that Dickey hid a camera in a bathroom inside his own home to take pictures of a girl as she dressed. He then used the nude photos of the girl and other girls "for the purpose of sexual stimulation," court documents allege.

A forensic examination of two computers and additional data storage devices turned up 2,335 images of nude children under 18, documents said. There were 1,827 pictures of one girl on three different devices, along with 319 video files allegedly showing her showering or dressing.

Documents said the pictures appeared to have been collected in late 2010, but there were images from March 2009 through July 2012.

Kennewick police got a tip in November that Dickey might have child pornography on his computer.

Dickey resigned from the police department foundation's board in light of the allegations. The nonprofit works to supplement the police department's finances by planning fundraisers, and accepting public and private community donations.

Even though Dickey only was associated with the department through the organization, Kennewick police handed over the investigation to the Benton County Sheriff's Office to avoid any potential conflict.

After interviewing a few witnesses, detectives Smith and Lee Cantu went to the Dickeys' home Nov. 27 to talk about the allegations.

Dickey was at work at the time.

His wife Beatrice Dickey said in an affidavit supporting the motion that she thought they were there to discuss her husband's business.

"I was never told that I did not have to let them in," she wrote. "The deputies began looking around and I asked if I needed to call my husband. They said that would be a good idea."

Smith testified this week that he told Beatrice Dickey that "she did not have to allow me to search the residence." But he also admitted that he didn't tell her she could end the search at any time.

Smith said after Dan Dickey got home, he explained why they were there and asked to look at his computers.

"He immediately said no problem," Smith said.

Dickey then walked over to the computer, logged in under his personal profile and started clicking on icons, Smith said. He testified that he stopped Dickey so he could go over a Miranda rights form -- which Dickey also signed -- then asked Dickey to open the recent documents file on his computer.

Smith said that's when he saw the mini version of a questionable picture and asked for permission to take the computer. What was uncovered on the computer led to a search warrant for all electronic devices in the home.

Jensen pointed out to the court that even though the search warrant affidavit mentioned images of nude minors, it failed to outline any criminal activity.

"Possession of a depiction of a 'nude' minor is not a violation of the statute," he wrote in his motion. "If it is, then every household better remove any photos they have of their children in the bathtub."

Bloor said he thinks the state is "on very good footing" because Dickey wanted to cooperate and voluntarily got onto his own computer when detectives were in his home.

But Bloor said even if Matheson finds fault with that, Dickey knowingly allowed the detectives to take his computer so anything that came from the search warrant should be allowed at the trial.

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