919 N.W.2d 221
Wis. Ct. App.2018Background
- In Oct. 2014, law enforcement using Child Protection System (CPS) software searched eDonkey P2P networks and identified an IP address in Wisconsin sharing files with known child-pornography hash values.
- Subpoena to the ISP identified John Schultz as subscriber; investigators learned Ronald Baric lived at Schultz's residence and was computer-savvy.
- Agents interviewed Baric at the house; after private questioning Baric admitted viewing some underage pornography and agreed to show his bedroom.
- Baric signed a written consent form; agents took two computers and three hard drives for an on-site forensic preview, which uncovered child pornography.
- Baric was charged with possession of child pornography, moved to suppress (1) the initial P2P-based discovery and (2) evidence seized after alleged coerced consent; both suppression motions were denied and he pled no-contest to two counts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether viewing files a user offers for download on a P2P network is a Fourth Amendment search | Baric: Viewing files made available via P2P was a warrantless search of private files; he had a privacy interest | State: Files offered publicly on a P2P network are held out to the public; no reasonable expectation of privacy | Court: No objectively reasonable expectation of privacy in files publicly shared on P2P; no Fourth Amendment search |
| Whether geolocating an IP address via CPS amounted to a search | Baric: CPS "geolocated" him and invaded privacy | State: IP address is publicly exposed to connect on P2P; geolocation is publicly available information | Court: No reasonable expectation of privacy in IP or geolocation used to access P2P |
| Whether CPS use (non-public, "sense-enhancing" software) implicates Kyllo and requires a warrant | Baric: CPS is a non-public sensor-like tool analogous to thermal imaging in Kyllo | State: CPS only automated searches any P2P user could perform; Kyllo focused on privacy in the home, not files voluntarily shared | Court: Kyllo inapplicable — CPS did not reveal information a member of the public could not obtain; not a constitutional search |
| Whether Baric's written consent to search his devices was voluntary | Baric: Consent was coerced by questioning and implied threats | State: Agents were forthright, non-deceptive, informed him he could refuse, and questioning was non-coercive; Baric volunteered cooperation | Court: Totality of circumstances shows clear-and-convincing evidence of voluntary consent; suppression denied |
Key Cases Cited
- Kyllo v. United States, 533 U.S. 27 (2001) (use of nonpublic thermal imaging to reveal otherwise unknowable details of a home constituted a Fourth Amendment search)
- Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (voluntariness of consent judged by totality of the circumstances)
- State v. Artic, 327 Wis.2d 392 (2010) (Wisconsin standard for consent-to-search voluntariness and warrant exceptions)
- State v. Dumstrey, 366 Wis.2d 64 (2016) (factors for objective reasonableness of privacy expectations)
- State v. Tentoni, 365 Wis.2d 211 (2015) (two-part test for Fourth Amendment expectation of privacy)