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Good faith saves search; no decision on whether “looks like child porn” is probable cause

State v. Garrett German, 2018AP78, 9/24/19, District 3 (not recommended for publication); case activity (including briefs)

Facebook alerted law enforcement that German’s account had uploaded images that “appeared to depict child pornography.” Eventually, an who had looked at the images submitted a warrant application averring that each one did “appear to be an image of child pornography.” Police executing the warrant did, in fact, find child pornography. Was the bare allegation that the images were child pornography (rather than an attachment with the actual images or at least a description of what they showed) good enough to supply probable cause to the warrant-issuing magistrate?

The federal district court where German was first prosecuted said “no,” citing “unambiguous Seventh Circuit case law.” Because that law was so clear and established, the court also held no reasonable officer could rely on the warrant, so the good faith exception didn’t apply and the fruits of the search were suppressed. Thus, the federal charges were dismissed.

The state then filed its own charges. German again moved to suppress. The circuit court noted that Wisconsin law on the matter was not clearly against the officers, but assumed the warrant application was insufficient. It nevertheless held that, because state law was at least ambiguous, the officers could have relied in good faith on the warrant and the evidence was admissible. German pleaded no contest and appealed.

The court of appeals takes the same approach as the circuit court. It observes that the federal courts have not conclusively decided whether a warrant application must do more than describe images as looking like contraband: the Seventh and other circuits say “yes” but the Eighth says “no,” and the Supreme Court hasn’t weighed in. (¶¶23-24). Nor have the state courts definitively set the standard German seeks. So, while the court calls it the “better practice” to give the magistrate the information needed to make an independent decision that the material is illegal to possess, it holds there is no established requirement that officers do so (and also declines to establish one in this case). (¶26).

The argument that is should be a judge, and not the officers, who make the call on what is and what isn’t child porn depends on the analogy to “obscene” materials. See, e.g., New York v. P.J. Video, Inc., 475 U.S. 868, 873 (1986) (“a warrant authorizing the seizure of materials presumptively protected by the First Amendment may not issue based solely on the conclusory allegations of a police officer that the sought-after materials are obscene, but instead must be supported by affidavits setting forth specific facts in order that the issuing magistrate may ‘focus searchingly on the question of obscenity.'”).

Even assuming, though, that the warrant affidavit was insufficient, the court holds that good faith applies. It applies the four-part test of United States v. Leon, 468 U.S. 897 (1984):

Namely, an officer’s reliance on a warrant is not objectively reasonable when any of the following conditions occur: (1) the affiant misleads the warrant-issuing magistrate by knowingly or recklessly supplying false information; (2) the magistrate wholly abandons the judicial role; (3) the affidavit is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; or (4) the warrant is so facially deficient in failing to particularize the place to be searched or the things to be seized that the executing officers could not reasonably have presumed it to be valid.

along with Wisconsin’s additional test, announced in State v. Eason, 2001 WI 98, ¶9, 245 Wis. 2d 206, 629 N.W.2d 625:

the State “must show that the process used attendant to obtaining the search warrant included a significant investigation and a review by a police officer trained in, or very knowledgeable of, the legal vagaries of probable cause and reasonable suspicion, or a knowledgeable government attorney.”

and concludes both are satisfied here.

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