Court of appeals finds search of home by off-duty cop is private, not government, search

State v. Ricardo L. Conception, 2016AP1282-CR, 3/28, District 2 (not recommended for publication); case activity (including briefs)

Concepcion pled to 10 counts of possession of child pornography. The court of appeals affirmed the denial of his suppression motion because the search of his home was a private-party search, not a government search. It also held that Concepcion’s sentence (9 in, 6 out) was not unduly harsh, and his trial counsel did not perform deficiently by failing to tell the sentencing court that he is a “hero” of “exemplary character and stature.”

Concepcion and his friend, Bitton, were pilots for the Law Enforcement Aviation Coalition. One night Bitton visited Concepcion’s home and noticed a number of helicopter headsets that had been reported missing from LEAC. He started looking though Concepcion’s bedroom and even opened a locked container where he found DVDs containing pornographic materials of girls between the ages of 4 and 12. Bitton called law enforcement, which obtained a warrant, conducted a search, and found the child pornography.

Search. A search is a “private-party” search when (1) the police did not initiate, encourage, or participate in the private party’s search; (2) the private party engaged in the activity to further its own ends or purposes: and (3) the private party did not conduct the search for its own ends or purposes. Opinion ¶7 (citing State v. Payano-Roman, 2006 WI 47, ¶18, 290 Wis. 2d 380, 714 N.W.2d 548).  Concepcion argued that law enforcement’s search warrant was illegal because it relied on information obtained from an illegal search by Bitton–an off-duty cop who, acting like a government agent, started collecting evidence. The court of appeals noted several cases where searches by law enforcement officers were not deemed “governmental searches.” Opinion ¶¶8-12 (citing State v. Cole, 2008 WI App 178, 315 Wis. 2d 75, 762 N.W.2d 711; State v. Berggren, 2009 WI App, 320 Wis. 2d 209, 769 N.W.2d 110; United States v. Ginglen, 467 F.3d 1071 (7th Cir. 2006). [For more on private searches click here.] Then it held:

¶13 We agree with the circuit court’s finding that Bitton was acting as a private citizen and not a government actor when he found the child pornography. Bitton, Concepcion’s best friend since 1998, had permission to stay overnight at Concepcion’s home on January 18, 2011, and had a female companion with him. Bitton was at Concepcion’s home as a friend, not as a police officer. Bitton had no arrest powers while he was in Kenosha County. Bitton was off-duty and in a capacity that the trial court considered to be “a vacation or visiting our state.” Bitton’s act of looking through Concepcion’s home was not for a law enforcement purpose, but to return missing headsets to LEAC. After Bitton played the one DVD and saw what he believed to be child pornography, he stopped looking and reported what he saw to police.

¶14 Wisconsin law enforcement officers did nothing to initiate, encourage, or participate in Bitton’s search of Concepcion’s home. Once Bitton found the child pornography his actions stopped. Like in Cole, Bitton contacted another law enforcement agency with jurisdiction so it could conduct an investigation. The fact that Bitton wanted to return the headsets to LEAC does not transform his actions into government actions. Bitton did not go to Concepcion’s home to look for evidence, he went there to spend the night with his girlfriend before an early morning flight and when he saw the headsets he searched for his own purpose—not the government’s.

Sentence. Concepcion could have received 25 years of imprisonment (15 in, 10 out) for each count for a maximum of 250 years with a 30-year presumptive minimum period of confinement. Thus, said the court of appeals, his 15-year sentence was clearly not “unduly harsh or unconscionable” Opinion ¶17 (citing State v. Cummings, 2014 WI 88, ¶71, 357 Wis. 2d 1, 850 N.W.2d 915).

¶18 The circuit court rightfully placed significant weight on the seriousness of the offense, the impact upon the victims and society, and noted Concepcion’s pending charges in Illinois for the same type of crime. The court also observed that there were seventy-three charges that could have been litigated but for the plea agreement. The court took Concepcion’s character into account noting all the good he has done through his work, his acceptance of responsibility, his lack of prior record, and his long-term and positive employment history. The court, however, viewed the crime as befitting nine years of confinement.

Deficient performance. Concepion argued that his trial lawyer did not provide a full-throated defense at sentencing by failing to stress his character and the un-severity of his offense.  The court of appeals disagreed with Concepcion’s conclusory allegation that he is a “hero” and with the idea that any amount of child pornography is small. Furthermore:

¶22 . . . We agree with the circuit court that Concepcion’s trial counsel did not perform deficiently at his sentencing hearing. Numerous character letters were supplied to the court prior to sentencing; the presentence report was reviewed with Concepcion and the court was advised of corrections to the presentence report by trial counsel; counsel argued the staleness of Concepcion’s access to the child pornography, that he has had no improper relations with minors, and that his status as a police officer should not trigger a more serious penalty as he did not use his status as a police officer to commit the crimes. Concepcion’s favorable employment history, volunteer work, lack of any prior record, and his low risk to reoffend were all highlighted by trial counsel.