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Independent source, attenuation doctrines defeat claim for suppression of evidence found on computer in police custody

State v. David Jerome Gant, 2015 WI App 83; case activity (including briefs)

Ten months after seizing Gant’s computer as part of their investigation of the death of Gant’s wife, police searched the computer pursuant to a warrant and found child pornography. Assuming it was unlawful for the police to keep Gant’s computer for that long, the child pornography found on the computer should not be suppressed under the independent source and attenuation doctrines.

Police reasonably seized Gant’s computer after the death of his wife, for two reasons. First, police never assume a death is a suicide, and always investigate a death the same way they would a homicide; a computer may provide evidence the death was in fact a suicide (by, for instance, revealing a suicide note) or a homicide or “assisted” suicide, State v. Jensen, 2011 WI App 3, 37, 93, 331 Wis. 2d 440, 794 N.W.2d 482 (2010). Second, Gant’s daughter told police her mother had recently used a computer, lending credence to the notion there might be something of relevance found. (¶¶11-13).

Based on Gant’s briefs, in concluding there was probable cause to seize Gant’s computers, the opinion writer either misreads or ignores the record, as the daughter’s statement was indeterminate as to when her mother used the computer and to which of the three computers seized her mother used; moreover, the cops themselves said they had no special interest in the computers as part of the death investigation. As to the Jensen reference, that is inapt not just because the defendant there consented to the computer search, while Gant didn’t (¶3), but also because in Jensen there was some evidence raising the possibility of something other than suicide, while here the medical examiner quickly ruled the death a suicide. (¶4). (Not to mention the decision in Jensen was recently found wanting by the Seventh Circuit, albeit on different grounds.) Thus, despite the court’s weak protestations to the contrary (¶13 n.3), it is effectively authorizing the general seizure of property—from computers to all kinds of other personal documents and data—in a home in which there’s been an apparent suicide. Surely the supreme court, with its deep, recently-expressed concern for the effect of an overweening state on the sanctity of the home, will want to review this misguided conclusion.

But if the police had reasonable grounds to seize the computers initially, did they act unlawfully by keeping them for 10 months and failing to return them when Gant inquired about their return at least twice? The court assumes that continued retention of the computers was unlawful, but holds the evidence found during searches of them for child pornography should not be suppressed under the independent source and attenuation doctrines:

¶16     …. In determining whether the independent source doctrine applies, we use a two-part test: (1) if the unlawful seizure had not occurred (here the lengthy retention of Gant’s computer), would the police still have sought the search warrant; and (2) did the unlawful seizure influence the decision to issue the search warrant. See State v. Carroll, 2010 WI 8, ¶45, 322 Wis. 2d 299, 778 N.W.2d 1. We conclude the independent source doctrine applies because the retention of Gant’s computers did not affect the officer’s decision to get a search warrant, and it did not affect the magistrate’s decision to issue the search warrant. The police decided to get a search warrant based on Tess Jackson’s report that while she was cleaning Gant’s basement, she found child pornography on DVD computer discs near Gant’s computer desk. They also had information from Jason Gant [Gant’s brother] disclosing that Gant said he had child pornography on his computer. This information is completely independent of the police retention of Gant’s computers. ….

¶17     In determining whether the attenuation doctrine applies, we consider: (1) the temporal proximity between the police misconduct and evidence obtained from the valid search warrant; (2) any intervening circumstances; and (3) the purpose and flagrancy of the police misconduct. See State v. Bermudez, 221 Wis. 2d 338, 353, 585 N.W.2d 628 (Ct. App. 1998). We will not suppress evidence if the State can show a sufficient break in the causal chain between the illegal action and the lawful seizure (from the valid search warrant) such that the connection between the two purges any taint. ….

¶18     The first factor is the temporal proximity between the unlawful retention and the evidence obtained from the lawful search warrant. The search warrant was issued while Gant’s computers were still in police inventory, but the fact that the police never returned Gant’s computers had nothing to do with Jason Gant’s report or Jackson’s discovery of child pornography on DVD computer discs at Gant’s home that led to the issuance of the lawful search warrant.

¶19     Second, the intervening circumstances support attenuation. Jason Gant reported to police that Gant told him Gant had child pornography on his computer and Jackson discovered child pornography on DVD computer discs. Both of these intervening circumstances are independent of the retention of the computers by police. There is no evidence that the police held on to Gant’s computers hoping independent evidence of child pornography would be located, and the computers were not originally seized or held because Gant was suspected of child pornography. The investigation into child pornography was completely independent of the initial seizure and the retention.

¶20     Third, there is no evidence of flagrant police misconduct. The police seized Gant’s computers with probable cause in connection with the violent death of his wife. The police did not illegally search Gant’s computers. Instead, the computers sat in police inventory until Jason Gant told police there was child pornography on Gant’s computer and Jackson found DVD computer discs with child pornography. This information led to the realization that Gant’s computers were still in police possession. A valid search warrant was issued to conduct a search of the computers and police found child pornography on Gant’s computers. We see nothing to suggest that the police acted flagrantly.

A concurrence suggests the majority is impliedly requiring a person to retrieve seized property under § 968.20 (¶22), which is strange given the majority’s explicit disclaimer to the contrary.  (¶14 n.4). The concurrence also criticizes Gant for not making “a reasonable effort” to get his computers back (¶¶22, 26-27) but fails to explain why, even if true, that has anything to do with whether the State unlawfully seized and searched the property.

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