339 P.3d 245
Wash. Ct. App.2014Background
- Federal agents (FBI Special Agent Burney and ICE Special Agent Peay) investigated alleged child pornography at Vance’s IP address and provided information to state police, who obtained and executed a search warrant at Vance’s home and seized evidence.
- Vance was charged in state court with multiple counts of dealing in and possessing child pornography based on evidence seized under the warrant.
- Vance sought to depose/interview the federal agents; DOJ and DHS directed him to comply with agency "scope and relevancy" Touhy procedures (28 C.F.R. §§ 16.21–.22; 6 C.F.R. §§ 5.44–.45). He did not fully comply for both agents.
- The superior court ordered the federal agents to submit to depositions; the federal agencies refused to produce agents or certain materials absent Touhy compliance, citing sovereign immunity and agency regulations.
- The trial court redacted from the warrant affidavit all information attributable to the federal agents, found no remaining probable cause, suppressed the evidence, and dismissed the charges with prejudice.
- The State appealed, arguing the trial court exceeded its authority by treating the refusal of federal agents as a CrR 4.7 discovery violation and by striking agent-sourced affidavit material.
Issues
| Issue | State's Argument | Vance's Argument | Held |
|---|---|---|---|
| Whether CrR 4.7 required the State to produce federal agents or their testimony | CrR 4.7 only requires disclosure of material in the prosecutor’s possession or control; State cannot compel out-of-state federal employees | Federal agents were effectively State witnesses and their testimony was necessary to contest the warrant; failure to produce violated CrR 4.7 | The court held State’s obligation is limited to material in its possession or control; it did not have authority to produce or compel federal agents, so finding a CrR 4.7 violation was error. |
| Whether state court may compel federal agents to testify or produce records without agency approval (Touhy compliance) | State cannot compel federal employees; Touhy regulations and sovereign immunity govern production and testimony | Vance argued the court could order interviews; Peay’s partial appearance waived Touhy requirements | The court held Touhy regulations (and sovereign immunity) preclude state-court compulsion; agents were not required to testify absent agency approval, and the state court lacked jurisdiction to enforce subpoenas. |
| Whether Touhy regulations are valid restrictions on state-court subpoenas | DOJ/DHS Touhy regs valid under 5 U.S.C. §301 and Touhy precedent; subordinate employees must comply with agency procedures | Vance argued Touhy created unfair discovery imbalance and some waiver occurred when an agent appeared | The court reaffirmed Touhy’s validity (citing Touhy and subsequent authority) and held the regulations govern; waiver by partial appearance was not effective to overcome the regulatory requirement because the required scope/relevancy letter was not provided. |
| Whether redacting agent-sourced affidavit material and dismissing with prejudice was an appropriate remedy | Striking agent information and dismissing was an abuse: State could not produce agents and had provided material it controlled; remedy went beyond what CrR 4.7 authorized given federal constraints | Vance argued nonproduction prejudiced his ability to challenge probable cause, justifying redaction and dismissal | The court held the trial court abused its discretion by redacting the affidavit and dismissing; reversal and remand to reinstate charges were ordered. |
Key Cases Cited
- Touhy v. Ragen, 340 U.S. 462 (Touhy establishes validity of agency regulations controlling employee testimony) (U.S. Supreme Court)
- In re Boeh, 25 F.3d 761 (9th Cir.) (agency regulations bar compelled testimony absent authorization)
- Smith v. Cromer, 159 F.3d 875 (4th Cir.) (state court lacks authority to compel federal employee where agency direction controls)
- United States v. Bahamonde, 445 F.3d 1225 (9th Cir.) (discusses discovery imbalance where agent was intimately involved in prosecution)
- Boron Oil Co. v. Downie, 873 F.2d 67 (4th Cir.) (actions compelling federal officials can be actions against the United States implicating sovereign immunity)
- In re Elko County Grand Jury, 109 F.3d 554 (9th Cir.) (state court lacked jurisdiction to compel federal employee in contravention of agency regulations)
- Fed. Bureau of Investigation v. Superior Court, 507 F. Supp. 2d 1082 (N.D. Cal.) (Touhy regulations have force of law and preclude state-court compulsion)
- State v. Hutchinson, 135 Wn.2d 863 (Wash.) (standards on discovery remedies and abuse of discretion)