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Search Warrant – Probable Cause – Online, Credit Card Purchase of Child Pornography

State v. Dennis M. Gralinski, 2007 WI App 233
For Gralinski: Martin Kohler; Craig Powell, PFR filed 10/5/07

Issue: Whether use of the defendant’s credit card number to purchase online membership to a child pornography site established probable cause for a search warrant of the defendant’s home.

Holding:

 ¶12     Gralinski argues that the special agent’s affidavit did not demonstrate probable cause for searching his home. Specifically, he contends that “the search warrant affidavit in the present case essentially stated only a single, facially non-incriminating fact supposedly connecting Gralinski to illegal activity—his credit card number was used in an online transaction to purchase a membership to a website later found to contain images of child pornography.” Gralinski argues that it was unreasonable for the trial court to infer that he conducted the credit card transaction given the significant amount of credit card fraud that exists. [3]He further argues that to get from the fact that Gralinski’s credit card number was used “to a reasonable probability that Gralinski’s home contained evidence of possession of child pornography in September 2005 requires the piling of inferences and near total reliance on the stated training and experience of the affiant in lieu of the requirement that a magistrate be presented with sufficient facts.” We disagree with these contentions and conclude that the warrant-issuing commissioner had a substantial basis for concluding that there was probable cause to issue the warrant to search Gralinski’s residence.

¶19      Gralinski’s circumstances are different than those present in Weber, where other than the order placed by Weber at the government’s solicitation, the only other fact suggesting that Weber may have had child pornography in his house on the day of the search was the advertising material that had been intercepted almost two years prior. Id. at 1345. Here, the affidavit detailed the fact that Gralinski’s credit card had been used to purchase a membership that afforded him access to website s containing child pornography. In addition, the affidavit contained information relating to the special agent’s experience and knowledge of individuals who are involved with child pornography and of the longevity of images viewed through the Internet to remain on a computer. SeeMultaler, 252 Wis. 2d 54, ¶43.

¶20      … In addition, the nature of the materials constituting child pornography in Weber (photographs) compared to the Internet images involved here, makeWeber inapposite. …

¶24      Here, like the court in Gourde II, we conclude that the use of a credit card issued to Gralinski to purchase a membership to website s containing child pornography, together with customer records confirming Gralinski’s home address, e-mail address, and credit card information, result in the inference that there was a fair probability that Gralinski had, in fact, received or downloaded images. See id., 440 F.3d at 1071. The details provided on the use of computers by individuals involved in child pornography found in the affidavit supporting the search of Gralinski’s home strengthens this inference. See id. at 1072; Ward, 231 Wis. 2d 723, ¶28 (noting that “‘[a]lthough the finding cannot be based on the affiant’s suspicions and conclusions, the magistrate may make the usual inferences reasonable persons would draw from the facts presented’”) (citation omitted; alteration in Ward); see also State v. Lindgren, 2004 WI App 159, ¶¶18-20, 275 Wis. 2d 851, 687 N.W.2d 60 (holding that affiant “placed a plausible scenario, based on facts and experience, before the court,” which provided sufficient justification for a search of the home of the defendant, who took nude photographs of a minor employee at his business).

 

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