Probable Cause – Warrantless Search

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Garrett A. German

Case No.: 2018AP78-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Probable Cause – Warrantless Search

Garrett German appeals a judgment, entered upon his no-contest pleas, convicting him of two counts of possession of child pornography, contrary to WIS. STAT. § 948.12(1m) (2017-18). German contends that the warrant issued for the search of his home was not supported by probable cause because the affidavit upon which the warrant was based lacked the details necessary for the warrant-issuing judge to distinguish German’s possession of legal images of pornography from his possession of illegal child pornography. Further, he contends that because law enforcement’s reliance on the issued warrant was not in good faith, all evidence derived from the execution of the warrant must be suppressed.

We assume, without deciding, that there was a lack of probable cause to support the issuance of the search warrant. However, we conclude that the good faith exception to the exclusionary rule applies because law enforcement acted in objectively reasonable reliance on a warrant issued by a detached and neutral magistrate.

We reach this conclusion, primarily, because at the time the search warrant was issued no reasonably well-trained Wisconsin law enforcement officer would have known that he or she had to provide a description of the images at issue—beyond that of stating they appeared to constitute child pornography—in order to show probable cause that the images constituted child pornography, as defined by WIS. STAT. § 948.12. Indeed, no Wisconsin legal authority holds that such a description is necessary, and there is a split amongst the federal circuit courts of appeal that have addressed the issue. Consequently, we affirm.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.