00-1846 State v. Multaler

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“The affidavit establishes that serial killers are uniquely likely to have a strong psychological compulsion to keep evidence of their crimes, even when they know they are under investigation. In fact, the affidavit establishes that serial killers may unreasonably flirt with the risk of being detected, as part of the nature of their unique criminal mentality.”

Further, defendant has failed to rebut the presumption that the legislature intended to permit multiple punishments for multiple offenses of child pornography.

“Multaler admitted that he had downloaded many pornographic images with the intention of possibly selling them. Thus, he necessarily chose to possess some but perhaps not others he may have viewed, and he was able to decide how to separate and disseminate them. Each pornographic image, when separated from the others, carried the potential for commercial value. Thus, the nature of Multaler’s proscribed conduct allowed for the multiple counts.”

Finally, given the egregious nature of the materials in defendant’s possession, the particular character of the defendant, and the absolute need for community protection from child pornography materials of this kind, the sentence structure, the maximum consecutive totaling 56 years, is not unduly harsh or excessive.

Judgment and sentence affirmed.

Recommended for publication in the official reports.

CONCURRING OPINION: Fine, J. “The chain of probable cause here is crafted of many sturdy links: the reasonable suspicion that Multaler was the serial killer authorities thought him to be; the practice of serial killer to keep-forever-mementos of their butchery; and that the residence to be searched was a likely repository for those bloody keepsakes. Accordingly, the magistrate acted well within his discretion in issuing the warrant, and, therefore, we must affirm.”

DISSENTING OPINION: Curley, J. “Here, no magistrate or judge, acting reasonably, could have found that probable cause existed to search the Arrow Street residence for objects allegedly taken from four murder victims over twenty years ago. First, the search warrant was based entirely on stale information and stale probable cause. No new evidence was uncovered. In fact, the critical information linking Multaler to the murders was over twenty years old. Stale probable cause, defined as “probable cause that would have justified a warrant at some earlier moment that has already passed by the time the warrant is sought,” cannot form the basis for issuing a search warrant. [Citation]. Here, any probable cause to support a search warrant which may have existed at some earlier time was stale by the time the warrant was sought.”