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Temporary files suffice to prove possession

A computer user can be convicted of possessing child pornography, even if the images were not saved on the computer, the Wisconsin Court of Appeals held on July 21.

The court also held that probable cause supported searching the computer, where the defendant was alleged to have taken Polaroid photographs of a 14-year-old girl.

A.J., a 14-year-old girl, was employed by Jack P. Lindgren at a store he owned. Over a six-month period in 2001 and 2002, Lindgren took Polaroid photographs of her either nude or partially undressed. He also touched her on occasions on her breasts, legs, and buttocks.

After the incidents were reported to police, A.J. placed a phone call to Lindgren while the police listened to the conversation. During the call, A.J. said she wanted the photographs, and Lindgren stated he had destroyed them all.

Lindgren subsequently was interviewed by a police investigator, claiming that none of the photographs he took were nudes, and that he did not deliberately take photographs of her in her underwear, but that she would “flash” him while he was taking pictures.

The officers obtained a search warrant for Lindgren’s home, car, and business. After the search, Lindgren was charged with child enticement, second-degree sexual assault of a child under 16 years of age, manufacturing-delivering THC, and six counts of possession of child pornography.

Lindgren moved to suppress the evidence seized in the searches, arguing insufficiency of the affidavit supporting the warrant.

The motion was denied, and Lindgren pleaded no contest to one count of child enticement and the THC charge. The sexual assault charge was dismissed. Following a bench trial, the court found Lindgren guilty of five counts of possession of child pornography.

Lindgren appealed, but the court of appeals affirmed in a decision written by Judge Harry G. Snyder and joined by Judge Richard S. Brown. Judge Daniel P. Anderson dissented.

Probable Cause

The court first upheld the denial of the suppression motion, concluding that probable cause existed for the search of the computer.

The detective’s affidavit in support of the warrant application stated that he expected to find “photographic material of underage children of sexually explicit nature, a computer with associated devices for storage and duplication of photographic material, and items listed on attachment B.”

Attachment B, was a document entitled “Preferential Child Molester Infor-mation,” which listed common habits and characteristics of such child molesters. Specifically, the preferential child molester profile asserted that the detective learned through training, experience, and consultations with experts that preferential child molesters collect sexually explicit materials such as photographs or videotapes, rarely dispose of these materials, often use instant photograph equipment such as Polaroid cameras, go to great lengths to conceal and protect the illicit materials, and maintain diaries of their encounters in notebooks, on audio tape, or on their home computers.

The court upheld the issuance of the warrant, concluding that the detective “placed a plausible scenario, based on facts and experience, before the court. He alleged that the search warrant was intended to uncover evidence related to the crime of sexual exploitation of a child, that the search would uncover items specifically referenced by the victim, and that it was reasonable to expect that the perpetrator of this sort of crime would go to great lengths to conceal the objects and may have kept a record of the illegal activity on a home computer.”

The court acknowledged that a more complete foundation could have been made for the search of Lindgren’s residence. Nevertheless, the court held that the court commissioner in issuing the search warrant made a practical, commonsense decision that, given all of the circumstances set forth in the affidavit, there was a fair probability that contraband or evidence of a crime would be found at Lindgren’s residence.

What the court held

Case: State of Wisconsin v. Jack P. Lindgren, Nos. 03-1868-CR & 03-1869-CR.

Issue: Are a 14-year-old girl’s allegations of sexual assault and nude and semi-nude photographs sufficient to support a search warrant of the suspect’s home and computer?

Can a defendant be convicted of possession of child pornography, even though he didn’t save Internet images to his hard drive?

Holding: Yes. The allegations support the conclusion that the suspect is a preferential child molester, and it is a common characteristic for such persons to possess child pornography.

Yes. Where the defendant visited child pornography sites, and clicked on thumbnail images of pornography to enlarge them, the evidence supports the convictions.

Counsel: Stephen M. Compton, Delavan, for appellant; Robert J. Jambois, Kenosha; Shannon Wittenberger, Madison, for respondent.

Child Pornography

The court also held that the evidence was sufficient to support the convictions for possession of child pornography.

At trial, the State presented testimony of two computer experts and 11 exhibits — images that had been electronically opened to enlarge pictures.

An expert testified that, in order for the photographs on the hard drive to be stored as they were, the person would have had to go to the Web site and click on small thumbnail pictures to enlarge the im
ages. Upon clicking to enlarge the image, it would be stored on the hard drive. Petersen opined that clicking on the thumbnail pictures to bring up larger images reflected an attempt to “control or manipulate” the images.

Section 948.12(1m) provides in relevant part: “Whoever possesses any undeveloped film, photographic negative, photograph, motion picture, videotape, or other recording of a child engaged in sexually explicit conduct under all of the following circumstances is guilty of a Class I felony: (a) The person knows that he or she possesses the material. (b) The person knows the character and content of the sexually explicit conduct in the material. (c) The person knows or reasonably should know that the child engaged in sexually explicit conduct has not attained the age of 18 years.”

Lindgren argued that the images were never in his possession, and presented evidence no child pornography had ever been saved on the computer. Lindgren also noted that “pop-up” ads appear when a computer user is on the Internet and can result in unintended or undesired information on any computer.

However, the court found the evidence sufficient, adopting the reasoning of a Tenth Circuit case, United States v. Tucker, 305 F.3d 1193 (10th Cir. 2002), cert. denied, 537 U.S. 1223 (2003).

In Tucker, as in the case at bar, the child pornography images were only temporarily displayed on his computer screen not saved on the hard drive. Tucker argued that a computer will automatically save thumbnail pictures to the temporary Internet cache file and that this involuntary process should not be held against the computer user.

Rejecting the argument, the court in Tucker held, “Tucker … intentionally sought out and viewed child pornography knowing that the images would be saved on his computer. Tucker may have wished that his Web browser did not automatically cache viewed images on his computer’s hard drive, but he concedes he knew the Web browser was doing so. Tucker continued to view child pornography knowing that the pornography was being saved, if only temporarily, on his computer. In such circumstances, his possession was voluntary. Since he knew his browser cached the image files, each time he intentionally sought out and viewed child pornography with his Web browser he knowingly acquired and possessed the images.” Tucker at 1205.

The court of appeals adopted the Tucker court’s reasoning, stating, “the State’s experts testified that Lindgren had visited teen sex Web sites, that five images showed up twice on Lindgren’s computer hard drive (once as a thumbnail and once as a larger image), that for images to be saved on Lindgren’s hard drive he would have had to click on and enlarge the thumbnail images, and that the only way an image would have been stored on the hard drive was if the computer user tried to save or otherwise manipulate the image by clicking on it. Further, Petersen testified that one of the images was saved to ‘My Documents’ in the ‘Jack Lindgren’ folder, but the others were not because the new operating system overwrote the old one. Although Lindgren attempts to paint himself as the victim of computer viruses and unwanted ‘pop-up’ ads, there is sufficient evidence in the record to demonstrate that he knowingly possessed the child pornography images on his computer because he repeatedly visited child pornography Web sites, clicked on thumbnail images to create larger pictures for viewing, accessed five images twice, and saved at least one image to his personal folder.”

Accordingly, the court affirmed.

The Dissent

Judge Anderson dissented from that portion of the decision that upheld the search warrant, distinguishing the affidavit from those in two recent search warrant cases, State v. Multaler, 2002 WI 35, 252 Wis.2d 54, 643 N.W.2d 437, and State v. Schaefer, 2003 WI App 164, 266 Wis.2d 719, 668 N.W.2d 760.

In Multaler, the defendant was the suspect in the disappearance and murder of four young women in 1974 and 1975; it was not until 1998 that the police were able to apply for a search warrant for Multaler’s residence. The core of the affidavit was that, not only was Multaler the prime suspect, “but also was a serial killer as evidenced by his behavior that was consistent with that expected of serial homicide offenders; as serial killers are wont to do, he collected and retained various mementos to remind him of the murders, including items taken from the victims; although it was more than 20 years since the time of the murders, these items were likely to be found in his house because serial killers retain such items indefinitely.”

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Case Analysis

Anderson referred to the affidavit in Multaler as being painstakingly detailed and meticulous.

In Schaefer, the defendant was also alleged to be a preferential child molester, as in the case at bar, but Anderson found the two affidavits distinguishable, noting that the affidavit in Schaefer listed 18 characteristics of preferential child molesters, and “methodically matches the detailed evidence with the characteristics of preferential child molesters to support the affiant’s conclusion that Schaefer is a preferential child molester.”

In contrast, in the case at bar, the detective only refers to his “training, experience, and consultations with professionals dealing with preferential child molesters.”

Anderson wrote, “In Multaler I and II and Schaefer, the affidavits carefully set forth the evidence that has been gathered, thoroughly describe the police officer&#1
46;s extensive experience and training; and, after establishing a solid foundation, the affidavits systematically offer the affiant’s opinion why a piece of evidence is consistent with the characteristics of either a serial homicide offender or a preferential child molester. Unfortunately, in this case, the affidavit has only two paragraphs of evidence that has been gathered … it does not establish his credentials, and it does not offer his opinion of why the evidence establishes that Lindgren is a preferential child molester.”

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David Ziemer can be reached by email.

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