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Search Warrants – ProbableCause – Child Molestation – Computer

State v. Jack P. Lindgren, 2004 WI App 159, PFR filed 8/20/04
For Lindgren: Stephen M. Compton

Issue/Holding: Search warrant application was supported by probable cause to search the defendant’s home and his computer, based on allegation of 15-year-old victim, that defendant had taken photographs of her posing nude, and had touched her vaginal area and admission of defendant that he had taken nude photos of her; and by an attachment listing the “common habits and characteristics of … child molesters.” ¶¶17-18. (The attachment supported the idea “that it was reasonable to expect that the perpetrator of this sort of crime would go to great lengths to conceal the objects and may have kept a record of the illegal activity on a home computer,” ¶20.)

As to establishing the habits / characteristics of the child molester, look at the dissent:

¶36. Silguero’s affidavit is fatally flawed. He generally asserts that because of his training, experience and consultations with professionals, he is qualified to describe the eighteen characteristics of preferential child molesters and to conclude that based upon his investigation, Lindgren is a preferential child molester. Silguero fails to identify his training, experience and the professionals he has consulted; he fails to establish any support for his statements; and he fails to establish that his reliance on his sources was reasonable. Therefore, the affidavit and Attachment B consist only of eighteen conclusory statements and unspoken suspicions that Lindgren’s behavior is consistent with the behavior of preferential child molesters. Consequently, I conclude that the application for a search warrant lacks a substantial basis to support a finding of probable cause.

As the dissent further explains (¶33 n. 5), the “expert” simply copied the same profile that the court upheld in support of a warrant in State v. Schaefer, 2003 WI App 164, 266 Wis. 2d 719, 668 N.W.2d 760, but without any demonstration of expertise (unlike that earlier case): “Unfortunately, in this case, the affidavit has only two paragraphs of evidence that has been gathered by Silguero; it does not establish his credentials, and it does not offer his opinion of why the evidence establishes that Lindgren is a preferential child molester.” ¶34. Certainly looks, then, as if the court’s headed in the direction of profile warrants: DNA profile; personality profile – what’s the difference?Compare with U.S. v. Gourde, 9th Cir. No. 03-30262, 9/2/04:

In sum, unlike in those cases where evidence of a subscription to an exclusively child pornography website was coupled with other corroborating information, the facts presented here established only that Gourde subscribed to a mixed pornography website and remained a member for two months. These facts—even when bolstered with the boilerplate language describing the characteristics of child pornographers and Agent Moriguchi’s opinion that Gourde’s actions placed him in that class—fail to provide a sufficient foundation on which to establish probable cause; indeed, with each inferential leap, “[v]irtual certainty bec[ame] probability, which merge[d] into possibility, which fade[d] into chance.” Weber, 923 F.2d at 1345. Because the Fourth Amendment requires a “fair probability” that the items searched for will be found, we cannot agree with the district court that this affidavit sufficiently established probable cause.

 

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