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Trial counsel not ineffective for failing to challenge delay in search seized computer

State v. Brian A. Plencner, 2019AP517-CR, District 2, 10/28/20 (not recommended for publication); case activity (including briefs)

The court of appeals holds trial attorney was not ineffective for failing to seek suppression of evidence found on Plencner’s computer equipment based on the delay in analyzing the equipment.

In late March 2010 police began investigating a claim that Plencner had committed child sexual assault. The allegation resulted in a charge that was quickly resolved by a plea in August 2010. Based on the complaining witness’s allegation that Plencner viewed child pornography, police got a search warrant and seized Plencner’s computers and hard drives. But the equipment wasn’t fully analyzed by the crime lab till autumn 2013. That examination found child pornography, and Plencner was charged accordingly. His trial lawyer twice filed motions to dismiss the charges, arguing the state’s delay in bringing them violated his “constitutional rights,” but the circuit court found no prejudice and denied the motions. (¶¶2-6).

Postconviction, Plencner argues trial counsel should have specifically moved to suppress the evidence found in the delayed search. (¶12). He cites United States v. Place, 462 U.S. 696 (1983), and Segura v. United States, 468 U.S. 796 (1984), which, he argues, require that law enforcement must diligently pursue its investigation and that the duration of a seizure is relevant to assessing the reasonableness of the seizure. He also relies on United States v. Burgard, 675 F.3d 1029, 1033 (7th Cir. 2012), which addressed a delay in getting a warrant to search a previously seized phone and held, quoting Place, 462 U.S. at 703, that courts must assess the reasonableness of a seizure by weighing ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.’” Finally, he notes State v. Gant, 2015 WI App 83, ¶¶4, 14, 16-21, 365 Wis. 2d 510, 872 N.W.2d 137, which assumed without deciding that a ten-month delay in securing a warrant after seizing a computer made the seizure unlawful, but found the independent source and attenuation doctrines allowed admission of the evidence found on the computer. (¶¶13-16).

The court of appeals holds the law is unsettled on whether, and if so, when, a delay in searching an item seized with a valid warrant violates the Fourth Amendment, and trial counsel can’t be deficient for failing to argue an issue that requires resolution of unsettled legal questions:

¶17     …. None of the cases [Plencner] relies on address the constitutional ramifications of a delay in searching an item of personal property, specifically a computer or computer components, seized pursuant to a valid warrant. Instead, each of the cases identified by Plencner involve a seizure, either based on reasonable suspicion or probable cause, and a resulting delay in obtaining a necessary warrant. Plencner has not identified any controlling authority in support of a motion to suppress based on the factual scenario presented before us, arguing only that it is “hardly novel that the reasonableness of a seizure under the Fourth Amendment includes consideration of the duration of the seizure.” As the State argues, there is no controlling authority in Wisconsin applicable under these circumstances. Thus, the State argues that Plencner’s claim for suppression is based on unclear or unsettled law and that trial counsel cannot be faulted for failing to advance it.

¶18     The unsettled nature of the issue in this case is clear as Plencer and the State both advocate for a different test. Plencner argues that the balancing test from Place should apply. That test requires the court to consider the reasonableness of the seizure by “balance[ing] the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Place, 462 U.S. at 703; see also Segura, 468 U.S. at 812 (“[A] seizure reasonable at its inception because based upon probable cause may become unreasonable as a result of its duration or for other reasons.”). The State, in contrast, argues that the Place test is not applicable where law enforcement delays executing a search of a computer seized pursuant to a valid warrant. Instead, the State advocates for the analysis used by courts in other jurisdictions, which focuses on whether law enforcement’s delay in searching rendered the probable cause supporting the warrant stale.

Further, the court holds, even if the law is settled and requires application of either Plencner’s standard or the state’s standard, his motion wouldn’t have succeeded, and therefore he wasn’t prejudiced by trial counsel’s failure to file the motion. (¶¶22-27).

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