In a Child Pornography Case Wisconsin Police Officers May Rely in Good Faith on a Search Warrant Even If It Lacks Probable Cause

By Reddin & Singer

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In United States v. Reichling, Darlington, Wisconsin police searched a house and a mobile home that was owned by the parents of a registered sex offender who was suspected of producing child pornography. According to an affidavit used to support a search warrant, the man solicited more than 300 nude photos from a 14-year-old girl via social media. He also allegedly threatened to share the photos with other individuals if she refused to continue sending them. The internet protocol address associated with the social media account that was used was apparently established using a fictitious name. Despite this, the service was provided to the Darlington address that was searched.

After learning the suspected man lived in his parents’ home or the adjacent trailer, local police filed their request for a search warrant with a Wisconsin circuit court. The affidavit provided in support of the warrant alleged the man met the description provided by the girl after she purportedly met with him in a local backyard. The affidavit also accused the registered sex offender of stalking as well as sending the girl threatening and harassing text messages from a mobile phone that was registered to the suspect. As a result, a judge issued two separate warrants authorizing the search of both the home of the registered sex offender’s parents and the trailer. In the warrant, the judge authorized Darlington police to seize visual depictions of child sexual exploitation or assault and any electronic storage devices used for such purposes.

During their search, law enforcement officers apparently uncovered a VHS videotape that contained images of a minor child engaged in sexually explicit conduct. Based on this evidence, the man was indicted for producing, receiving, and possessing child pornography. The defendant then filed a motion to suppress the evidence obtained through the search warrant. After both motions were denied, the defendant entered into a plea agreement but reserved the right to appeal the circuit court’s decision denying his motions to suppress.

On appeal, the defendant stated that, although he sent and received photo messages from the girl, the affidavit used to support the search warrants that were executed on his parents’ property failed to indicate he may have transferred the images to another electronic device. Because of this, the defendant argued local police only had probable cause to search his cellular telephone. The defendant also claimed that it should have been obvious to the officers who executed the warrants that they were not valid. In addition, the defendant claimed even if the search warrants were valid, the VHS videotape uncovered did not constitute a digital storage device as described in the warrant.

The Seventh Circuit Court of Appeals disagreed with the man’s “narrow view of probable cause.” The court stated probable cause only requires a showing that criminal activity is substantially likely to be uncovered based on the evidence offered. Additionally, the court said a judge may make reasonable inferences based on the affidavit and the offense alleged. Since it was common knowledge that images sent via social media or text message may be easily transferred to other storage devices, the court held there was probable cause to search the defendant’s electronic storage devices.

Similarly, the Seventh Circuit dismissed the defendant’s argument that the VHS videotape evidence should have been suppressed because it was impossible to transfer digital files to such a non-digital storage device. The court said it was possible to purchase technology capable of doing so. In addition, the appellate court found that the harassment and stalking allegations included in the affidavit could have reasonably led a judge to believe the defendant was videotaping the child.

The court next said the good-faith exception to the exclusionary rule would have applied to the case even if the search warrants were not based on sufficient probable cause because the defendant failed to offer any evidence the police officers who executed the search warrants did not rely on the judge’s decision to issue them in good faith. Finally, the Seventh Circuit Court of Appeals affirmed the lower court’s order denying the defendant’s motion to suppress the evidence obtained as a result of the search warrants at issue.

Child pornography cases are complex and must be handled by a skillful Milwaukee criminal defense lawyer who is well-versed in this area of law. To learn more about your rights and options, contact the law offices of Reddin & Singer, LLP online or give us a call at (414) 271-6400. We may also be reached using our phone number (414) 271-6400.

Additional Resources

United States v. Reichling, Court of Appeals, 7th Circuit 2015

Photo Credit: mikecco, freeimages