Court Error – Motion to Suppress Evidence Denied

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Samuel Silverstein

Case No.: 2016AP1464-CR

Officials: Brennan, P.J., Brash, and Dugan, JJ.

Focus: Court Error – Motion to Suppress Evidence Denied

Samuel Silverstein appeals from a judgment of conviction, entered on his guilty plea, for three counts of possession of child pornography. Silverstein first argues that the trial court erred in denying his motion to suppress the evidence recovered from his computer after the search of his home pursuant to a warrant. He contends that the affidavit for the search warrant failed to state probable cause because it was based on “the uncorroborated tip of an anonymous informant.” The informant was Tumblr.com (“Tumblr”), an electronic service provider (“ESP”) required by federal law to report suspected child pornography to the National Center for Missing and Exploited Children (“NCMEC”), which in turn provided the information to the police.

We conclude, based on Wisconsin case law regarding citizen informants found in State v. Paszek, 50 Wis. 2d 619, 630, 184 N.W.2d 836 (1971), and State v. Kerr, 181 Wis. 2d 372, 381, 511 N.W.2d 586 (1994), that a tip from an ESP is properly viewed as one from an identified citizen informant, not an anonymous informant, which therefore establishes the personal reliability requirement in our case law. Additionally, the affidavit here also shows sufficient indicia of observational reliability of the ESP. Therefore, applying the “great deference” we pay to a determination of probable cause, see State v. Anderson, 138 Wis. 2d 451, 469, 406 N.W.2d 398 (1987), we conclude that the warrant issuing magistrate “had a substantial basis for concluding that a search would uncover evidence of wrongdoing.” See id. Accordingly, we uphold the determination.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.