TACOMA, Wash. — Calling it "general exploratory rummaging in a person's belongings," attorneys for Steven Powell on Monday argued that evidence against their client in his voyeurism and child pornography case was collected illegally and should be thrown out.
"This is a fishing expedition under the guise of searching for journals written over 12 years ago," argued defense attorney Mark Quigley.
Prosecutors, however, countered that police were looking into the disappearance and possible homicide of Susan Powell when Steven Powell, her father-in-law, went on national television himself to say the diaries that he and his son, Josh Powell, possessed were important pieces of information in the investigation.
Pierce County Superior Court Judge Ronald E. Culpepper took the arguments under advisement and said he would make a ruling at 9 a.m. Tuesday.
The courtroom was full for Monday's hour-long hearing. Chuck and Judy Cox, the parents of Susan Powell, were present as was Alina Powell, Steven Powell's daughter. Extra sheriff's deputies were also positioned throughout the courtroom.
After the hearing, Alina Powell said she believed the defense made a better case than prosecutors.
"I felt that the defense's arguments were very strong legally and that the prosecution's arguments were rather weak. They didn't really support their claims," she said.
She insisted that her father is innocent of the charges against him — 14 counts of voyeurism and one count of possession of materials of minors engaged in explicit conduct. Police say they seized thousands of photographs of young children, mostly young girls, many in partial states of undress.
Specific to the charges, Powell is accused of taking pictures of two neighbor girls, then ages 8 and 10, through an open window into their bathroom without their knowledge in 2006 and 2007. The pictures were taken secretly without the subjects' knowledge or consent.
Alina Powell, however, believes the evidence seized from their house last year was "fabricated."
"I do believe that he should be released from jail. And I believe that based on the conduct of the police, there has been a lot of illegal hanky panky. Frankly that suggests that if they're willing to go that far to get a warrant, who knows how far they're willing to go to back that warrant up," she said. "They lied in order to get the search. ... Then when they found nothing they made stuff up in order to further their cause and take Josh's children and so forth."
During oral arguments before Culpepper, Quigley did not suggest that police fabricated evidence. However, he said at the time of the search, the investigation into Susan Powell's disappearance was going nowhere for West Valley police.
"This investigation was stale, the police were frustrated and quite honestly they needed a reason to enter the Powell household," he said. "If these journals were so relevant and so important to this investigation, why did the police … wait nine months to get a warrant issued?"
In August, West Valley police served a search warrant at Steven and Josh Powell's Puyallup home. They were looking for seven volumes of Susan Powell's diaries, which they claimed the Powells weren't willing to give up.
Quigley argued Monday that the search was not warranted because the diaries weren't linked to her disappearance. "Just because Susan wrote the journals doesn't mean they would contain evidence of criminal activity," he said, adding that those diaries were written before she and Josh were married.
"These journals have nothing to do with her relationship to Josh Powell. These journals have to do with her relationship with other men before Josh Powell," he said. "These journals wouldn't have any insinuating information against Josh Powell."
Even if the diaries were legally taken, that did not give police the right to also seize all the digital media in the house, including five computers, 13 towers and six hard drives, Quigley argued. He said police went beyond the scope of their investigation and violated his client's Fourth Amendment rights.
But prosecutor Grant Blinn contended that it was Steven Powell himself who went on national television and "bragged" the diaries were an important part of the investigation. He admitted it would have been difficult to get search warrant if Powell had not appeared on TV.
Furthermore, he reminded the judge of another diary from Susan Powell that was found in a safety deposit box in Utah after she disappeared. In it, Powell wrote that if something should happen to her, it may not be an accident and her husband may be involved.
"Even if there's another theory for her disappearance, there's probable cause to believe (she disappeared) by criminal means whether it's (because of Josh) Powell or not," Blinn said.
Blinn also said the defense was being unrealistic about how specific the warrant needed to be concerning the items police were authorized to search.
"What they're really trying to create is a moving target that law enforcement will never be able to hit in Susan Powell's disappearance," he said.
He said Steven Powell was essentially arguing that once the physical journals were recovered, the search should have stopped. "That's a little like saying, in a homicide investigation, that once you recover the firearm, you don't get to look for the shell casings."
Outside the courtroom, Chuck Cox said the hearing went as he expected.
"I think it's clearly a valid search and I think (the defense's) arguments are ridiculous. I think they're trying to reach for anything they possibly can," he said.
Pictures of Susan Cox Powell were also found in Steven Powell's room, according to police. Although those photos are not part of Steven Powell's criminal case, Cox said it was important for him to be at the hearing.
"My daughter was a victim of Steven Powell's voyeurism so she's also a victim in this case," he said.
Cox said Monday was the first time he had seen Steven Powell in person since his confrontation with Powell during a honk-and-wave event in Puyallup in August of 2011, right before Powell was arrested. Powell got into a heated argument with Cox, resulting in a judge issuing a restraining order between the two.
Powell, 61, appeared by many in the courtroom to be noticeably thinner on Monday. He answered, "Yes I am" clearly when a judge asked him if he was Steven Powell. But for most of the hearing, Powell stood and listened to the arguments, nodding his head in agreement at times when his attorneys presented their cases and occasionally talking to the co-counsel.
Outside the courtroom, Alina Powell defended both her father and brother, Josh Powell, saying that nobody knows what happened to Susan Powell.
"I would say that there's no evidence that my brother had anything to do with (her disappearance) based on objective fact. However, I wouldn't have any idea. None of us do, not without actual evidence. All any of us could have ever done was wait for the truth, wait for evidence and look for justice rather than rumor."
Alina Powell said she knows what people think about her brother, and she understands why. But she said there are parts of the police investigation into Susan's disappearance that the public does not know about, although she would not elaborate on Monday.
Josh Powell murdered his two young sons and killed himself in February just days after a judge ruled that his boys would remain in the custody of his in-laws for the next several months.
Steven Powell is scheduled to stand trial next month.
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