Leavitt seeks to suppress iPhone evidence

SPOKANE — An attorney representing accused voyeur Michael Leavitt is asking a federal judge to suppress nearly all of the evidence obtained in the case.

In a 26-page filing with the U.S. District Court for Eastern Washington in late January, attorney Matthew Campbell says that Warden Police Chief Rick Martin illegally seized Leavitt’s phone without first obtaining a warrant and exceeded the scope of a subsequent warrant when they searched the phone for pictures and video.

Leavitt, then a member of the Warden city council, was arrested by Grant County Sheriff’s deputies in March 2018, after being accused of using his iPhone to take pictures up the skirt of at least one elementary school-aged girl while working as a substitute teacher in the Warden Schools. In September 2018, federal prosecutors in Spokane charged Leavitt with two counts of receipt and possession of child pornography. He was released on bail in early October.

In his filing, Campbell asserts that Martin’s demand that Leavitt “surrender his cell phone” during an Oct. 23, 2017, meeting at the Warden Police Department constituted a “warrantless, unlawful seizure of Mr. Leavitt’s phone.”

In the original warrant, Martin wrote that Leavitt “surrendered his phone” after being read his Miranda rights and asking for a lawyer.

Campbell also states the subsequent search warrant only authorized “the search and seizure of photos, video and associated metadata of voyeuristic images taken in a classroom setting,” and that police exceeded this by “extracting the entire contents of the cell phone” and “searching the entire phone.”

Because this first search was unlawful, everything that resulted from subsequent county and federal warrants was “the fruit of poisonous searches,” Campbell states.

“(E)ach subsequent seizure and search is tainted by the proceeding illegalities,” he wrote. “Suppression is mandated.”

Between October 2017, and April 2018, a total of six warrants were issued in the Leavitt case — four state warrants and two federal warrants — for iPhones, an iPad, computers, information on servers with internet service provider iFiber and backup files held by Apple Computer.

Warden officials also sought but failed to obtain a warrant to search Leavitt’s home in late 2017. However, federal agents did get a warrant to search his house in March 2018.

While the original warrant covers “(i)mages or videos, or deleted images or videos from a classroom setting consistent with voyeurism, specifically dress and underclothes of the victim,” it also appears to give police permission to seize electronic records and documents on Leavitt’s iPhone “concerning the depictions of the intimate areas of another person.”

While police investigators were unable to find any images or video of the alleged 9-year-old victim on Leavitt’s phone, they found a number of similar pictures and videos of other grade school girls — at least one taken during Warden’s 2017 Community Day celebration — and eventually found the videos that prompted the original complaint in an online Apple backup.

Police also found an extensive search history of known child pornography sites.

According to a signed statement from Leland McEuen, a special agent with the FBI in Spokane, Leavitt waived his rights to counsel during a March 28, 2018, search of his home, and voluntarily surrendered an iPhone and iPad he would use to view child pornography.

Oral arguments are scheduled to be heard by Judge Thomas Rice on Wednesday, Feb. 13.