Pasco cellphone search ruled unconstitutional. Ex-officer’s conviction in doubt

A former Pasco police officer will get another chance to argue he’s innocent after an appeals court ruled a cellphone search was unconstitutional.

In a recent 2-1 decision, the Washington State Court of Appeals decided Pasco police had a warrant that allowed them to seize a suspect’s phone but didn’t give them permission to all the information on the phone.

The case stems from a bomb threat investigation seven years ago at Columbia Basin College.

Police confiscated the cellphone of the bomb threat suspect and found messages linked to then Pasco Sgt. Zachary J. Fairley.

The text messages were between Fairley and the suspect’s daughter, who had just hours before placed an ad on a website often used for prostitution.

2013 bomb threats

In July 2013, Steven E. Brown of Finley had made several bomb threats to the Pasco college to avoid taking his college placement test.

Pasco investigators applied for search warrants for his home and his SUV, including his cellphone.

Investigators questioned Fairley about the text messages with Brown’s daughter and said he lied several times to cover up his contact with the woman.

Fairely maintained his denials but a Franklin County District Court jury found him guilty of obstruction and of making false statements to police.

He was sentenced to 10 days in jail in 2015 and fought the sentence ever since.

He and his attorney appealed the verdict to Superior Court. Along with their other points, they claimed that police didn’t have permission to search the phone.

Judge Robert Swisher rejected the claim saying Fairley shouldn’t expect his text messages to stay private if they came to light during a “valid search.”

Swisher said the warrant’s purpose was “to search the data stored in the cellphone” and that the language was commonly used in other search warrants.

Cellphone search

But Appeals Court Acting Chief Judge Rebecca L. Pennell and Judge Laurel Siddoway sided with Fairley.

“While law enforcement undoubtedly obtained the warrant in hopes of conducting a search, permission to search the phone was neither sought nor granted,” said the majority opinion.

The warrant only allowed police to take the phone, and that searching it would require more detail about what they were looking for, they said.

Without limiting the search, police could have access to a wide-variety of information ranging from a person’s weight loss goals to medical diagnoses.

“Without explicit judicial oversight, cellphone searches pose a danger of government overreach far beyond what was envisioned by the architects of the Fourth Amendment,” they said.

Appeals Court Judge Kevin Korsmo disagreed. He said Fairley lost his privacy once the messages became stored on Brown’s phone.

Heading back to Franklin County

The case will now head back to Franklin County Superior Court, where the judge will decide if the Appeals Court ruling changes his decision.

Franklin County Prosecutor Shawn Sant said they are reviewing the opinion to determine what their recommendation.

Fairley’s attorney, Etoy Alford Jr., believes this will mean the messages and the other evidence found during the search of the phone will be tossed out of court.

He expects that will mean Fairley’s convictions will be overturned.

While he hadn’t been in contact with Fairley recently, he expected that he would be happy with the ruling.

“It should have never had to go this far,” Alford said. “At least we know that the judicial system works.”