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Warrants – Scope – Particularity Requirement – Photographs

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

Issue/Holding: The search warrant satisfied the particularity requirement by authorizing seizure of the following: “[p]hotographs, movies, slides, videotape, negatives, and/or undeveloped film which would tend to identify … any other juvenile”; and “[m]agazines, books, movies, and photographs depicting nudity and/or sexual activities of juveniles or adults, as well as collections of newspaper, magazines, or other publication clippings of juveniles which tend to demonstrate a particular sex and age preference of JOHN LEE SCHAEFER.” ¶25. Child pornography is not protected activity: “Thus even lawful pornography, when evaluated with other materials, may be evidence of child exploitation or of exposing minors to harmful materials.” ¶26. Nor was authorization to seize “[r]elevant images of juveniles” insufficiently particular:

¶28. Unlike Schaefer, we do not read item twelve in isolation. The description in item twelve refers to “relevant images of juveniles.” The preceding items specify that sexual conduct involving juveniles is the focus of the warrant. An officer would reasonably discern that “relevant images” are those showing juveniles in a sexual manner. Moreover, as the State points out, authorizing the seizure of every photograph of a child is reasonable when investigating the crime of child exploitation. Even lawful photographs could help to identify children with whom the accused has interacted, thereby aiding in the discovery of other victims.

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