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Defendant consented to search and had no expectation of privacy in files put on P2P file sharing network

State v. Ronald Lee Baric, 2018 WI App 63; case activity (including briefs)

Police failed to read Baric his Miranda rights, but the court of appeals still found that he consented to a search of his computer. It also resolved a 4th Amendment issue of first impression for Wisconsin: a person has no reasonable expectation of privacy in files he offers for download on a P2P file sharing network.

A detective used Child Protection System (CPS) software to conduct an automated search of file sharing networks known to contain child porn. To access this type of network the user only needs P2P software and an internet connection, which in turn requires him to share his IP address. In Baric’s case, a detective’s search showed that a particular IP address was sharing known files of child porn. He subpoenaed Charter Communications, and got an IP address for a house where Baric and others lived.

Baric was charged with 2 counts of possession of child pron. He moved to suppress arguing that the search of the P2P network violated the 4th Amendment, and he didn’t consent to the search. To prevail on the first point, Baric had to prove that: (1) he had an actual, subjective expectation of privacy in the area searched, and (2) society recognizes his expectation as reasonable. State v. Tentoni, 2015 WI App 77, ¶7, 365 Wis. 2d 211, 871 N.W.2d 285.

The court of appeals ruled against Baric on the 2nd prong. He had no property interest in the file sharing network and no control over the files he made available there for download. Opinion ¶¶21-23 (listing non-Wisconsin cases in agreement). The automated search the detective performed was not like the thermal imaging scanner used to surveille a home a la Kyllo v. United States, 533 U.S. 27 (1002). The detective searched a public network, not a private home. Opinion ¶ ¶23-24.

Applying State v. Artic, 2010 WI 83, 327 Wis. 2d 392, 786 N.W.2d 430, the court of appeal also held that, even without a Miranda warning the search of Baric’s computer was voluntary based on the totality of the circumstances. Here are some of the more interesting circumstances: The officers told Baric and other residents that they were “not in trouble.” That was not misleading because at that point the officers had no incriminating evidence against Baric specifically. Once the officers zeroed in on Baric, they told him that they could get a search warrant. That was questionable but the court accepted the officer’s testimony that he honestly believed he could have obtained a search warrant. Also, Baric had a college degree and a full-time job in computer science. So, according to the court of appeals, when he allowed the officers to search his computer he knew what a search would entail and what evidence they could recover. Opinion ¶¶35-37.


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