The majority opinion is remarkable in its discussion of probable cause for the near total absence of discussion of State v. Schaefer, 2003 WI App 164, 266 Wis.2d 719, 668 N.W.2d 760.
The court does cite the case, but only for the boilerplate proposition that the great deference given to a magistrates decision on probable cause furthers the Fourth Amendments strong preference for searches conducted pursuant to a warrant.
As the leading case discussing when probable cause exists to search a home and computer for child pornography, however, the decision warrants much more discussion than that something more akin to the dissents discussion.
Whether correctly decided or not, it is indisputable that the decision in the case at bar goes well beyond Schaefer in permitting issuance of a warrant.
In Schaefer, the affiant gave a lengthy definition of preferential child molesters persons whose sexual objects are children. They receive sexual gratification and satisfaction from actual, physical contact with children and from fantasy involving use of pictures or other photographic or art mediums and what their characteristics are. Schaefer, 266 Wis.2d at 732.
In the case at bar, an exact duplicate of this document was also included with the affidavit. The similarities start trailing off after that, though.
In Schaefer, there were allegations by Schaefers adopted son of sexual abuse, supported by photographs allegedly taken by Schaefer, and detailed descriptions of where in the house the officers could find child pornography. Id. at 733.
In addition, other juvenile males informed officers that Schaefer had a cool computer system with lots of games, and allowed teenage boys to use the computer, but that part of the computer was security locked because it had adult stuff on it. The boys stated that Schaefer also had a swimming pool that he let them use during the summer. Id. at 734.
These allegations are very significant, as one of the most common characteristics of preferential child molesters is that, In order to gain access to their desired victims, preferential child molesters engage in activities and programs of interest to children. Id. at 732.
In addition, a search of Schaefers garbage revealed child pornography, and narratives describing sexual assaults of children that had been downloaded from Web sites devoted to child pornography. Id. at 734-735. This is significant, because another characteristic of preferential child molesters is corresponding with other preferential child molesters to share information about victims and to gain psychological support. Id. at 732.
Schaefer also had a prior conviction for possession of child pornography.
Under these circumstances, it would not be a stretch to say that Schaefers claim that probable cause did not exist bordered on the patently frivolous.
In the case at bar, on the other hand, there was only the allegations of the 14-year-old girl, supported by the phone conversation between her and Lindgren, and Lindgrens admissions that he took photos of the girl, although he denied she was unclothed.
These allegations certainly are sufficient to support probable cause that a sexual assault occurred, and that photographs were taken, but come nowhere close to making as strong a case as in Schaefer that child pornography would be found at Lindgrens home or on his computer.
Thus, the decision effectively holds that, if a child makes allegations of molestation, and a police officer attaches Attachment B the document describing the traits of child molesters a warrant can issue.
The significance of the attachment actually becomes unclear, however, in light of the courts decision. In Schaefer, the defendants conduct, other than the allegations of abuse themselves, fit the profile in the attachment enticing children with games, and corresponding with other child molesters. There were also direct allegations that he possessed large quantities of pornography.
In the case at bar, there was largely just the allegation of abuse itself. If that is sufficient for probable cause to search the computer, then most of the profile contained in the attachment becomes irrelevant. The attachment need only say that child molesters usually have child pornography.
On the issue of sufficiency of the evidence, defense attorneys should be aware of a footnote in United States v. Tucker, 305 F.3d 1193 (10th Cir. 2002), that was not mentioned by the court of appeals in the case at bar.
The footnote in Tucker states, We offer no opinion on whether the mere viewing of child pornography on the Internet, absent caching or otherwise saving the image, would meet the statutory definition of possession. We likewise do not address the question whether an individual could be found guilty of knowingly possessing child pornography if he viewed such images over the Internet but was ignorant of the fact that his Web browser cached such images. Tu
cker, 305 F.3d at 1205, fn.16.
Also, in U.S. v. Perez, 247 F.Supp.2d 459, 484, fn.12 (S.D.N.Y.2003), the court also stated that it was an open question whether merely viewing child pornography, without saving it, constituted possession.
Presumably, the question will be considered by other jurisdictions in the future, and if decided in the negative, attorneys may find persuasive authority from those opinions.
– David Ziemer
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David Ziemer can be reached by email.