Between the early summer of 1992 and June of 1993, various and sundry females received telephone calls from an individual, later revealed to be defendant, who identified himself to them as “Josh” (hereafter Josh). During these calls, Josh initiated his sales pitch gingerly, asking first whether the unwitting recipient of his call was interested in earning extra money by doing some “modeling.” If the recipient remained on the line, defendant’s telephone solicitations would turn progressively more salacious. Eventually he would reveal that as part of her modeling assignment, his prospect would be expected to pose nude, to assume erotic positions, and to commit various sexual acts with the inquiring photo/videographer including fellatio and intercourse. In each call defendant attempted to allay any concerns that his prospective “models” might have about being recognized locally by promising that any photographs or films he would take of them would be distributed overseas or outside of New England.
When not moonlighting as Josh, defendant held down a respectable day job as the director of special education at the Pawtucket School Department. The defendant furthered his lurid escapades by searching confidential school records to locate likely targets for his lubricious telemarketing campaign. He identified families of special education students, concentrating on single mothers or younger female students themselves. He did so thinking they might be potentially receptive candidates for his solicitations because of what he perceived to be their financial straits. Many of the phone numbers he culled from school records were unlisted in public telephone directories.
With most of his phone-call pitches Josh struck out: the targeted women either hung up, changed their phone numbers, or threatened to notify the authorities. Although one displeased recipient was unable to connect Josh with defendant during the trial of this case, the woman managed to record Josh on tape by feigning a response to another waiting call. One woman he reached, however, agreed to pose nude for Josh’s camera and in fact did so, though she balked at his more prurient offers of employment. But in another call Josh hit pay dirt when he secured a second prospective model to commit an act of fellatio upon him while he filmed the event. As it turned out, this ambitious and willing “actress” was a working prostitute to whom Josh paid $ 40 for each “love” scene.
Josh’s exploits as a nude photographer manque’ and triple-X thespian eventually came to a sorry end after he dialed the unlisted number of one Susan Gity (Gity), a thirty-two-year-old parent of two boys in the Pawtucket special education program. Adhering to his trusty modus operandi, Josh eased into his spiel by asking Gity if she would be interested in modeling bathing attire or lingerie at $ 250 per photo session. Gity expressed interest and accepted Josh’s invitation to meet with her and another female friend at her house later that afternoon. Josh arrived as scheduled and proceeded to explain that the modeling he sought would require the women to pose nude and to perform various sex acts on film, including masturbation, fellatio, and sexual intercourse. Josh told the women that he could provide marijuana for them to relax if they wanted to “get high,” and he assured them that the films he would make would be distributed abroad. Josh also asked if the women knew any teenage females who would be willing to pose for him.
After Josh enlightened them about the parameters of this modeling job as he conceived it, both Gity and her friend thought better of getting involved in such activity. But to be relieved of Josh, they feigned continued interest in the project and stated that they wanted to think it over. After defendant departed, Gity telephoned the Pawtucket police. Working together, Gity and the police decided to set up a sting operation. When, as expected, defendant again called Gity the next day to ask if she had mulled over his modeling proposition, Gity asked him to come back to her house. Meanwhile, police officers set up recording devices, secreted themselves in the house, and waited in the wings for defendant to swing into action. When defendant arrived, he and Gity conversed for several minutes. During the course of this taped conversation Gity asked Josh if he had any drugs and Josh replied that he did not. The defendant then asked Gity to disrobe while he prepared his photographic equipment. When he returned from his car carrying his camera bag, the police officers sprung the trap and arrested him.
On the basis of Gity’s statement and the above-described taped conversation, police then sought a warrant to search defendant’s home, his car, his camera case, and his office at the Pawtucket school system for evidence of his sexual enterprise and any drugs in his possession. With regard to the marijuana charge, the affidavit attached to the warrant application merely described Gity’s recount of Josh’s pitch during which he allegedly “stated that he could supply drugs if [Gity and friend] wanted it to put them at ease and make them more comfortable.” The police officer affiant, however, failed to inform the magistrate about the recording made by police at Gity’s apartment in which Josh sidestepped Gity’s request for drugs, stating, “I don’t have any,” and in response to her further entreaties responded, “I don’t buy the stuff that’s why, so I don’t have it.” As a result of the warrant application and affidavit, police secured a search warrant for each location, authorizing seizure of
"[a] certain quantity of Videos or films of an illicit nature, a certain quantity of photography and video equipment as well as any records and or documents concerning illegal, objectionable material used in the making, showing, producing of pornography, pedophilia, beastiality, and any lewd and lascivious acts. A certain quantity of controlled or illegal substances." (Emphasis added.)
Upon searching defendant’s residence, police did locate a small quantity of marijuana in a closed jewelry box. Police also seized scores of video tapes, one of which had captured the incident of fellatio described above, and a variety of documents containing the phone numbers of various women who had received phone calls from Josh.
