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Warrants – Scope of Authorized Search – Plain View – Computer Files

State v. Keith Schroeder, 2000 WI App 128, 237 Wis.2d 575, 613 N.W.2d 911
For Schroeder: Kevin D. Musolf

Issue/Holding: Inspection of child pornography on a computer, found during a warrant-authorized search of a computer for unrelated material, was in plain view so as to be subject to seizure without a separate warrant:

13            In order for the plain view doctrine to apply:  “(1) the evidence must be in plain view; (2) the officer must have a prior justification for being in the position from which [he or] she discovers the evidence in ‘plain view’; and (3) the evidence seized ‘in itself or in itself with facts known to the officer at the time of the seizure, [must provide] probable cause to believe there is a connection between the evidence and criminal activity.’”  State v. Guy, 172 Wis. 2d 86, 101-02, 492 N.W.2d 311 (1992) (quoting State v. Washington, 134 Wis. 2d 108, 121, 396 N.W.2d 156 (1986) (quoting Bies v. State, 76 Wis. 2d 457, 464, 251 N.W.2d 461 (1977))) (second alteration in original).  While Schroeder never directly addresses the plain view argument, he points out that, after being told that there might be child pornography on the computer, Koch opened files that had names suggestive of child pornography.  Schroeder characterizes this as Koch “verifying” that the files did contain child pornography.  According to Schroeder, “This additional step of opening and reviewing the folder to verify it contained child porn makes the search illegal.”  He thus seems to challenge application of the doctrine on prong one:  he claims the files were not in plain view.

¶14            We do not agree.  Koch testified that when he searches a computer he systematically goes through and opens user-created files, regardless of their names.  This makes sense, as the user is free to name a file anything.  Were Koch to limit his search to files whose names suggested the type of evidence he seeks, it would be all too easy for defendants to hide computer evidence:  name your porn file “1986.taxreturn” and no one can open it.  While systematically opening all user-created files, Koch opened one that contained images that he considered child pornography.  At that point, he stopped his search and called Malchow.  He did not resume his search and find the rest of the nude images of children until after a second search warrant had been issued.  Thus, his initial discovery of child pornography was when he opened a file and saw a nude picture of a child pop up on the screen.  It was in plain view.  This was no different than an investigator opening a drawer while searching for drugs and seeing a nude picture of a child on top of a pile of socks.  The first element of the plain view test is satisfied.  Regarding the second and third prongs, it is undisputed that Koch had a warrant to search the computer for evidence of harassment and that the first image Koch found could reasonably be viewed, on its face, as child pornography.  The plain view doctrine applies.

United States v. Gray, 78 F. Supp. 2d 524 (E.D. Va. 1999) (discovery of child pornography in computer files during “routine search” of warrant-authorized inspection upheld under plain view doctrine), followed: “When searching computer files, investigators necessarily must look at all files and not just those with names suggestive of criminal activity,” ¶15. United States v. Carey, 172 F.3d 1268 (10th Cir. 1999) (search held unreasonable because investigator abandoned original search for drug activity to look for child pornography after inadvertently discovering pornographic image), distinguished, ¶16.

Note: Koch halted his search after his initial discovery until an additional warrant, allowing search specifically for child pornography, was obtained; additional material was then recovered. The court declines to say whether the second warrant was necessary, ¶16 n.3.

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