Dismissal sought on porn conviction

Illegal search alleged

PORT ANGELES — A former Forks physician assistant sentenced in September to more than seven years in prison on child pornography charges is challenging his conviction, claiming a warrantless search of his computer violated his constitutional right against illegal search and seizure.

Thomas Ira Hughes, 62, was sentenced as part of a plea deal Sept. 1 in Clallam County Superior Court to 87 months on four child pornography charges: one count of first-degree possession, two counts of first-degree dealing and one count of second-degree dealing.

He had been charged with six counts of first-degree possession and one count of second-degree dealing.

Hughes uploaded the images, depicting the sexual abuse of children from infants to 12-year-olds, onto his computer on June 15, when Google alerted the National Center for Missing and Exploited Children, according to the probable cause statement.

The images were discovered after Hughes was arrested during a traffic stop in Forks, and he later admitted to receiving, viewing, possessing and distributing images of minors engaged in sexually explicit conduct, according to the statement.

His attorney, Stan Myers of Port Angeles, filed a motion in Superior Court on Feb. 24 seeking to dismiss the conviction based on a U.S. 9th Circuit Court of Appeals decision issued three weeks after Hughes was sentenced.

A hearing on Myers’ motion scheduled for Wednesday was postponed to April 6 by Judge Simon Barnhart due to the unavailability of Deputy Prosecuting Attorney Matthew Roberson and Myers’ need to review the state’s brief in the case.

The brief will be filed before April 6, Michele Devlin, chief criminal deputy prosecuting attorney, said in a text message.

The court of appeals on Sept. 21 reversed the conviction of a man for possession and distribution of child pornography after he uploaded four images of apparent child pornography to his email account as email attachments in 2015. He had been sentenced to 11 years.

Google’s automated system for identifying child pornography automatically sent the emails to law enforcement, which searched his computer and discovered the images.

“Just as a laboratory test of a suspected drug reveals its precise molecular structure and so potentially exposes additional private information like other illicit contaminants or the source of the substance, so viewing an image of suspected child pornography reveals innumerable granular private details — for example, the faces of the people depicted, the setting, and, perhaps, other speech or conduct also in the frame,” the court said in the ruling in U.S. v. Wilson (https://cdn.ca9.uscourts.gov).

“Viewing the images here allowed the government to do more than just confirm the images’ classification as child pornography, implicating privacy interests beyond a binary classification.”

Said Myers in his motion: “That is precisely the situation that we have in this case in that Google flagged the defendant’s email without a warrant and without verifying the content of the attachment.

“In the present case, there was a warrantless search by Google, who in turn provided the information from that search to [the National Center for Missing and Exploited Children], who in turn forwarded it to law enforcement, who in turn was granted a search warrant,” he said.

“This has been deemed an illegal search by United States v. Wilson,” Myers said.

“Therefore, all evidence obtained by that illegal search must be suppressed,” he argued. “Without the fruit of that search, the state has no evidence upon with to support the charges against the defendant, so the case must be dismissed.”

The appeals court said there were 18.4 million CyberTips regarding child pornography in 2018, “making it all the more important that we take care that the automated scanning of email, and the automated reporting of suspected illegal content, not undermine individuals’ Fourth Amendment protections.”

At his sentencing hearing, Hughes said he was “ashamed” of his actions, apologizing to his family “and to anyone I may have hurt.”

Hughes’ physician assistant license was suspended for five years for sexual misconduct in 2018 by the Medical Quality Assurance Commission after it determined he had sought sex in return for opioid medication from a female patient at the Quileute tribal clinic.

He had worked at the Clallam Bay Medical Clinic, Forks Community Hospital, the hospital’s Bogachiel Clinic and at the Republic Medical Clinic in Ferry County, where he was found liable for sexual misconduct by pressing his crotch against a female patient while preparing a steroid injection site on her shoulder, according to the state Medical Quality Assurance Commission.

Hughes also was sanctioned in 2015 for over-prescribing medications.

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Senior Staff Writer Paul Gottlieb can be reached at 360-452-2345, ext. 55650, or at [email protected].

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