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Tumblr qualifies as an “identified citizen informant,” and sec. 939.617(2) is not void for vagueness

State v. Samuel Silverstein, 2017 WI App 64; case activity (including briefs)

Pursuant to a warrant, police searched Silverstein’s computer for child porn. The “informer” was Tumblr, which is required by federal law to report suspected child pornography to the National Center for Missing and Exploited Children. Silverstein challenged the warrant as well as the mandatory minimum sentence the trial court imposed per §939.617, which he contends is unconstitutionally vague.

Challenge to warrant

¶2 We conclude, based on Wisconsin case law regarding citizen informants found in State v. Paszek, 50 Wis. 2d 619, 630, 184 N.W.2d 836 (1971), and State v. Kerr, 181 Wis. 2d 372, 381, 511 N.W.2d 586 (1994), that a tip from an ESP is properly viewed as one from an identified citizen informant, not an anonymous informant, which therefore establishes the personal reliability requirement in our case law. Additionally, the affidavit here also shows sufficient indicia of observational reliability of the ESP. Therefore, applying the “great deference” we pay to a determination of probable cause, see State v. Anderson, 138 Wis. 2d 451, 469, 406 N.W.2d 398 (1987), we conclude that the warrant issuing magistrate “had a substantial basis for concluding that a search would uncover evidence of wrongdoing.” See id. Accordingly, we uphold the determination.

Constitutional challenge to §939.617’s mandatory minimum sentence

Silverstein argued that § 939.617(2), which describes the circumstances in which a court may impose a sentence less than the sentence required in sub. (1), is unconstitutionally vague because under one reading the exceptions applies if the defendant is no more than 48 months older than the child, and under a second reading, age doesn’t matter. The court focuses on the best interests of the community. Silverstein cited a dozen circuit court cases to support his interpretation of the statute. The court of appeals was unmoved:

¶32 We first note that it is well established that differences in sentences for defendants who appear to be similarly situated does not generally serve as grounds for relief. See, e.g., Ocanas v. State, 70 Wis. 2d 179, 189, 233 N.W.2d 457 (1975); State v. Perez, 170 Wis. 2d 130, 143-44, 487 N.W.2d 630 (Ct. App. 1992). Thus we are unpersuaded by Silverstein’s reliance on the fact that some other circuit courts have apparently interpreted WIS. STAT. § 939.617 the way that Silverstein advocates.
¶33 More importantly, we fundamentally disagree with the premise of Silverstein’s argument: that there is more than one way to read the statute. In Holcomb, 371 Wis. 2d 647, this court interpreted WIS. STAT. § 939.617 and concluded that the interpretation requiring a mandatory minimum sentence for all defendants except certain youthful offenders is “plain and unambiguous” and “does not support” a second interpretation. Id., ¶¶8, 15. This court concluded that “[t]he only reasonable construction” of the statute requires the imposition of a mandatory minimum sentence for all except those defendants who are less than forty-eight months older than the child-victim. Id., ¶¶8, 11. Holcomb was addressing a statutory construction question, not a constitutional argument, but its holding is equally dispositive of the due process fair notice issue. We therefore reject Silverstein’s fair notice argument and affirm.

Holcomb’s petition for review was pending when Silverstein briefed this appeal. SCOW subsequently denied it. Holcomb did not raise a constitutional challenge to § 939.617. See our post on Holcomb here. The numerous circuit court decisions that have gone Silverstein’s way will support a petition for review by SCOW.

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