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Search & Seizure – Consent; Guilty Plea – Factual Basis Review; Postconviction Discovery

State v. Robert Edwin Burkhardt, 2009AP2174-CR, District 1/4, 12/6/12

court of appeals decision (not recommended for publication); case activity

Search & Seizure – Consent 

Consent to search isn’t vitiated by nonpretextual threat to obtain a search warrant:

¶16      … (I)t is well established that, “[t]hreatening to obtain a search warrant does not vitiate consent if ‘the expressed intention to obtain a warrant is genuine … and not merely a pretext to induce submission.’”  Artic, 327 Wis. 2d 392, ¶41 (quoting United States v. White, 979 F.2d 539, 542 (7th Cir. 1992)).  The police have a genuine intent to obtain a search warrant when it is arguable that there is probable cause for a search warrant.  See State v. Kiekhefer, 212 Wis. 2d 460, 473, 569 N.W.2d 316 (Ct. App. 1997).  Burkhardt does not assert facts showing that police lacked an intention to obtain a warrant or that there was not an arguable basis to obtain one. Indeed, as we briefly explain below, police possessed substantial information that Burkhardt affirmatively reached out for and viewed images of child pornography.

Burkhardt raises this issue in the context of an IAC claim for failure to file a suppression motion; the claim is necessarily defeated once the suppression issue is deemed meritless, ¶19, citing State v. Maloney, 2005 WI 74, ¶37, 281 Wis. 2d 595, 698 N.W.2d 583 for the principle that “(c)ounsel does not render deficient performance for failing to bring a suppression motion that would have been denied.”

Guilty Plea – Factual Basis Review – Possession of Child Pornography

¶22      A sufficient factual basis for a guilty plea exists when it is probable that the defendant committed the crime charged.  Payette, 313 Wis. 2d 39, ¶7.  While guilt must be inferable from the criminal complaint, there is no requirement that guilt be the only inference that may be drawn from the criminal complaint or that guilt be established beyond a reasonable doubt.  Id.  Accordingly, “[w]here reasonable inferences may be drawn establishing probable cause to support a charge and equally reasonable inferences may be drawn to the contrary, the criminal complaint is sufficient.”  State v. Grimm, 2002 WI App 242, ¶15, 258 Wis. 2d 166, 653 N.W.2d 284.

The court finds that probable cause was supplied by the complaint’s allegations that Burkhardt admitted purchasing a child pornography website membership and visiting child pornography sites several times a week, along with a large number of child pornography images found on his computer. “These facts permit the inference that Burkhardt repeatedly used his computer to reach out for and view images of child pornography, including the images described in counts one through six,” ¶24, citing State v. Mercer, 2010 WI App 47, ¶29, 324 Wis. 2d 506, 782 N.W.2d 125.

¶28      Further, even if we assume that the advertisement described in count three was a “pop-up,” we do not believe that the Mercer decision supports Burkhardt’s contention. First, Mercer teaches that, a defendant who affirmatively pulls up images of child pornography also knowingly possesses the child pornographic images that the defendant views on the computer as a result.  SeeMercer, 324 Wis. 2d 506, ¶¶27-32.  Second, the defendant in Mercer argued, in part, that he should not be criminally responsible for some of his viewing because images popped up in an “endless loop[]” in which he tried to exit by “hitting th[e] small X button,” which in turn caused more pop-ups to appear.  Id., ¶38.  We rejected the proposition that this endless loop of pop-ups could not constitute possession of child pornography by pointing out that, although the defendant said he could only “get out of the loop by restarting the computer,” the evidence showed that he did not do so.  Id.  Thus, contrary to Burkhardt’s assertion, we do not read Mercer to hold that “pop-ups” may not form the basis of knowing possession.  Moreover, the facts in the complaint support the inference that Burkhardt repeatedly used the computer to pull up and view images of child pornography. It is disingenuous for Burkhardt to argue that he did not reach out for the type of child pornography advertisement described in count three.[4]

Postconviction Discovery 

Given Burkhardt’s confession that he “knowingly possessed” the pornographic images on his computer, he can’t make the showing for postconviction discovery of a computer forensic examination, ¶¶29-31, citing State v. O’Brien, 223 Wis. 2d 303, 320-21, 588 N.W.2d 8 (1999) (reasonable probability different result would have obtained upon disclosure – here, that Burkhardt wouldn’t have pleaded guilty had he seen the sought-after report).

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