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Warrants — Probable Cause — Child Pornography

State v. John Lee Schaefer, 2003 WI App 164, PFR filed 8/21/03
For Schaefer: Jefren E. Olsen, SPD, Madison Appellate

Issue: Whether the search warrant was supported by probable cause to believe that the defendant currently possessed child pornography.

Holding:

¶17. “[E]very probable cause determination must be made on a case-by-case basis, looking at the totality of the circumstances.” State v. Multaler, 2002 WI 35, 34, 252 Wis. 2d 54, 643 N.W.2d 437. Schaefer’s approach would have us focus on individual parts of Vendola’s affidavit, and ignore the statements viewed in their entirety, and the reasonable inferences that may be drawn from those facts. Schaefer’s assertion, that because none of the items recovered from his trash were illegal to possess, the evidence does not add to probable cause, is incorrect. It is well settled that otherwise innocent conduct can supply the required link in the chain to establish probable cause that a crime has or is about to be committed. See Kerr, 181 Wis. 2d at 380-82. Although an individual fact in a series may be innocent in itself, when considered as a whole, the facts may warrant further investigation. United States v. Arvizu, 534 U.S. 266, 277-78 (2002) (holding that facts which by themselves suggested a “family in a minivan on a holiday outing” when viewed collectively with other facts amounted to reasonable suspicion).

¶18. The cut-up pictures found in Schaefer’s trash established that he retained his interest in juvenile males as sex objects. Common sense tells us that most people do not maintain photographs of juveniles clad in their underwear, nor do people meticulously cut up photographs about to be discarded. Further, Schaefer had internet access and had visited an internet site where visual child pornography was available for downloading. …

¶19. Nor are we persuaded that the warrant was supported by stale information and thus lacked reasonable evidence that Schaefer would possess unlawful materials in 1998. “When the activity is of a protracted and continuous nature, the passage of time diminishes in significance.” State v. Ehnert, 160 Wis. 2d 464, 469-70, 466 N.W.2d 237 (Ct. App. 1991). “The nature of the criminal activity under investigation and the nature of the objects being sought” have a bearing on where the line between stale and fresh information should be drawn in a particular case.” Id. at 470. Schaefer does not contest Vendola’s description of the habits of preferential child molesters. Vendola stated that collectors of child pornography go to great lengths to protect their sexually explicit materials and rarely, if ever, dispose of them. Given Daniel’s report to police in 1996, that he broke into Schaefer’s home when Schaefer was not there and saw Polaroids of juvenile males in a shoe-box in a closet, there is no reason to infer that Schaefer would have thrown the pictures away, despite the fact that Schaefer moved three times in the interim.

As to probable cause to search the defendant’s computer, the court discerns a sufficient “nexus between his computer and evidence of child pornography or sexual exploitation,” in that he used the computer to communicate with others interested in stories about child sexual assault, and also because computers are commonly used to store photographs. ¶¶20-21. Similar result, see U.S. v. Newsom, 7th Cir No. 03-3366, 4/1/05. Note, though, authority for the idea that

… The best practice is for an applicant seeking a warrant based on images of alleged child pornography to append the images or provide a sufficiently specific description of the images to enable the magistrate judge to determine independently whether they probably depict real children. An officer who fails to follow this approach without good reason faces a substantial risk that the application for a warrant will not establish probable cause. See Brunette, 256 F.3d at 20.

U.S. v. Syphers, 1st Cir No. 04-2438, 10/20/05.

But see U.S. v. Battershell, 9th Cir No. 05-30397, 8/10/06 (warrant application need not attach pictures; description may suffice for probable cause).

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