BENCH BLOG: Child porn case pushes new justice’s work into limelight

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On the same day that Rebecca Bradley was appointed to the Supreme Court, the Court of Appeals released her first appellate opinion that has been recommended for publication.

State v. Gant concerns digital images of child pornography that were not retrieved from the computer on which they were stored until some 10 months after it was seized. Gant complained that his Fourth Amendment rights were violated because so much time was allowed to elapse before the retrieval.

Seizure of computers

The case stems from Gant’s calling police in September 2010 to report his wife’s apparent suicide. She had been found hanging in the basement of their home.

At the scene, police interviewed one of Gant’s daughters, who told police that her mother had been using the computer before her death. The police decided to seize three computers in the home in the belief that they might find evidence – such as a note or records of web searches for information on committing suicide – that would shed light on her death.

Gant consented to a search of his property but refused to allow one of his computers.

Within a few days, his wife’s death was ruled a suicide by a medical examiner. For reasons that remain unclear, the police retained the computers, although they did not search them.

Gant made an insipid attempt at getting the computers back a week or two later by going to a “police officer” stationed at a metal detector at the Police Administration Building and asking for them. The person who was approached – he was not named in the record – rang up a detective who then told Gant that “he couldn’t get any of the property yet.”

For whatever reason, Gant never used the statutory procedure authorized under sec. 968.20 to request the release of the computers.

Search of computers

Six weeks after his wife’s suicide, Gant was charged with exposing his genitals to a child. Six months later, in April 2011, Gant’s brother reported to police that Gant had admitted to molesting his own children and to having child pornography on his computer.

Three months passed before Gant was charged with first-degree sexual assault of a child. At about that same time – in July 2011 – his mother-in-law reported that while cleaning the Gant’s home, she had discovered DVD computer discs containing child pornography. The discs were found near Gant’s desk in his basement. They were later inventoried by the police.

The police succeeded in August 2011 in getting a warrant to search Gant’s computers and the discs. Looking into the computer from Gant’s basement desk, as well as the computer discs, police discovered hundreds of files containing child pornography.

Motion to suppress

Gant was charged with ten counts of possession of child pornography. He brought a motion to suppress the evidence obtained from his computers, arguing that the police had not shown they had probable cause to seize the computers in the first place. Moreover, he contended that the search was rendered illegal by the fact that ten months were allowed to elapse before the files were actually retrieved.

Milwaukee County Circuit Judge Ellen Brostrom denied the motion on both grounds. Gant then pleaded guilty to the ten counts of possession of child pornography, with read-ins of four other crimes, and was given a substantial prison sentence. He immediately filed a notice of appeal.

Court of Appeals analysis

In Bradley’s decision, the District 1 Court of Appeals found that there had indeed been probable cause for the initial seizure of the computers, mainly because they might contain evidence indicating Gant’s wife had committed suicide. In addition, Gant’s daughter had reported that her mother had recently used the computer.

Adding to the totality of circumstances was the fact that police procedures require officers to investigate a possible suicide as if it were a homicide. The court also noted that Gant had altered the scene before police arrived by cutting down his wife’s body and laying it on a nearby bed.

Next the court looked at the length of time that police had retained the computers. It assumed without deciding that the 10-month duration made the seizure unlawful. However, the court concluded that excluding the evidence from the seized computers was not the proper remedy, since two exceptions to the exclusionary rule were found to apply.

The first exception is the independent-source doctrine. This comes into effect when the police would have still sought a search warrant even if the lengthy retention had not occurred, as well as when the retention did not influence the decision to issue the warrant.

Here, police sought the warrant in response to the mother-in-law’s report of finding child pornography on the DVD discs and the brother’s report that Gant had admitted to having child pornography on his computer. Thus, the decision to seek out the warrant was made independently of the computers’ retention. Similarly, nothing in the record suggested that the magistrate’s reason for issuing the warrant was that the computers were already in police inventory. Rather, it was clear that the warrant was issued in response to relatives’ reports.

The second exception is the attenuation doctrine. This doctrine looks at the time that elapsed between any alleged police misconduct and the subsequent gathering of evidence with a valid warrant. Also considered are intervening circumstances, and the purpose and flagrancy of the alleged misconduct.

In Gant’s case, it was his relatives’ reports that led to the realization the computers were still on inventory and also led to the search warrant. The court found nothing flagrant in the police actions.

Commentary

In this case, it’s easy to decide if police officers had probable cause to seize the computers. The questions arise from the lengthy detention of the computers and the application of the attenuation doctrine.

Bradley’s analysis of the doctrine is weak. She de facto collapsed two of the factors into one – intervening circumstances – and added an unexplained declaration that the police officers’ conduct in retaining the computers was not flagrant.

Without fleshing out more facts from the trial-court record and Gant’s arguments on appeal, Bradley leaves us with an analysis that does not guide the bench and bar in applying it in their cases. Thus, the attenuation analysis is actually confined to this case despite the fact that the decision is recommended for publication.

Perhaps it’s merely the inexperience of an appellate beginner.