Wisconsin Federal Court Refuses to Suppress Evidence in Child Pornography Case

By Reddin & Singer

Computer

In US v. Link, a Brown County Sherriff’s Department law enforcement officer downloaded a file that contained child pornography from a specific internet protocol (“IP”) address. After identifying the account holder through a communications search warrant, another officer obtained a search warrant for the account holder’s Sturgeon Bay, Wisconsin apartment and the bookstore he owned and operated out of the same building. Unfortunately, the search warrant failed to include several relevant details.

When the officers executed the search warrant, the account holder provided them and a Wisconsin Division of Criminal Investigations computer forensic analyst with access to the bookstore. During their search of the bookstore, the law enforcement officials allegedly found child pornography files on several hard drives and two personal computers. After police seized the technology, the account holder purportedly admitted that he was secretly taping customers using the restroom. As a result, the officers also took possession of the man’s camera equipment.

While executing the search warrant, police apparently learned that another individual was residing in what they believed to be the account holder’s apartment. While searching the apartment, the officers located and seized numerous pieces of technology that contained child pornography files. According to the police, the two men appeared to share internet access.

After arresting both men, the police officers who executed the search warrant went to the account holder’s residence. At the time, the man’s fiancé operated a daycare out of the home. The officers told the man’s fiancé about their child pornography discovery and stated he also admitted to secretly videotaping others using a hidden camera. The finance then consented to a police search of the property.

During the property search, a police officer removed the hard drive from two computers. He took the technology outside so the forensic analyst could review the files included on each of them. At the time, the fiancé apparently consented to removing the hard drives and cooperated with the police investigation. After child pornography files were found on one of the two hard drives, the internet account holder was charged with possession, distribution, and receipt of child pornography in violation of 18 U.S.C. §§ 2252A(a)(2) and (a)(5)(B).

In response to the charges, the defendant filed a motion to suppress the hard drive evidence obtained from both locations. According to the man, the evidence seized at the bookstore was based on an invalid search warrant. In addition, the man claimed that his fiancé lacked the authority to consent to a search of the computer equipment located at his residence.

At a hearing on the defendant’s motion, his fiancé stated she was unaware one of the hard drives was in the home because the defendant typically took it to work with him. The woman added that they did not have internet access at their residence. She also stated she was not computer savvy and never accessed the computers in the home despite that they were not password protected. According to the fiancé, she was unaware the police officer removed the computer hard drives in order to search them outside. She also stated that she never consented to his doing so.

The Eastern District of Wisconsin first considered the accused man’s motion with regard to the search warrant. The court stated the Fourth Amendment to the United States Constitution protects citizens from unreasonable search and seizure. Despite this, the court said the law provides great deference to a judge’s conclusions regarding probable cause when a search was authorized by a warrant. A probable cause affidavit must set forth sufficient facts that would lead a “reasonably prudent person to believe that a search will uncover evidence of a crime.” In addition, a judge need only have a substantial basis for determining that probable cause existed.

According to the court, the officer’s affidavit was poorly written and failed to establish probable cause because it was filled with cryptic jargon that did not address how the account holder’s IP address was identified or why the bookstore was being searched. Still, the court stated the information offered was sufficient to support a good faith exception to excluding the evidence obtained in the search. The Eastern District said the fact that the law enforcement officer sought a search warrant and asked a district attorney to review it indicated he was acting in good faith.

Although the probable cause affidavit was sparse and poorly written, the court found that the accused man failed to rebut the prima facie evidence of the officer’s good faith. Because there was no indication the judge abandoned his judicial role, the affidavit was not based on information known to be false, and the supporting evidence offered did not make the existence of probable cause wholly unreasonable, the federal court concluded that the officer who executed the search warrant relied on it in good faith. As a result, the court denied the accused man’s motion to suppress the bookstore evidence.

Next, the court said it was clear the man’s fiancé consented to the officer’s request to search the defendant’s residence. The Eastern District of Wisconsin stated the only remaining dispute related to whether she consented to a search of the man’s computer hard drive and if she had the authority to do so. The court then said the burden of demonstrating consent was on the government since consent is an exception to the requirement of obtaining a search warrant.

After examining the testimony offered, the federal court held that the woman consented to the officer’s search of the defendant’s computer hard drive. Next, the court addressed the scope of that consent. The Wisconsin federal court said the standard for determining the scope of consent provided by an individual is one of “objective reasonableness.” The court stated it was reasonable for a law enforcement officer looking for evidence of child pornography to review an internal or external computer hard drive. The federal court next examined the woman’s authority to consent to such a search.

Because the fiancé lived at the defendant’s residence, she had access to the hard drives at issue, and the accused man failed to password protect his computers, the court said it was reasonable for police to believe the woman had the authority to consent to the search. According to the federal court, the woman also had the apparent authority to consent to a search of the computer equipment even if she did not have the actual authority. In addition, the court held that the search was saved by the inevitable discovery doctrine because the government would have discovered the evidence using a search warrant if the fiancé had not provided them with her consent.

Finally, the Eastern District of Wisconsin denied the defendant’s motion to suppress the incriminating evidence obtained at his bookstore and home.

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

Additional Resources

US v. Link, Dist. Court, ED Wisconsin 2015

Photo Credit: enfinite5, MorgueFile