902 N.W.2d 550
Wis. Ct. App.2017Background
- Tumblr (an electronic service provider) reported suspected child pornography to the National Center for Missing and Exploited Children (NCMEC) under federal reporting obligations; NCMEC forwarded the tip with IP and identifying info to local police.
- NCMEC's CyberTip included the Tumblr blog URL, an email address (ssilver58@att.net), an IP address, file names for nine still images and one video, and identified a submitter name.
- Local police traced the IP to Samuel Silverstein's Glendale residence, obtained a search warrant based on an affidavit attaching NCMEC materials, and seized a flash drive with multiple child pornography videos.
- Silverstein moved to suppress evidence, arguing the affidavit lacked probable cause because the tip was effectively anonymous/unreliable; the motion was denied and he pled guilty to three counts (seven others read in).
- Silverstein also challenged the constitutionality of Wis. Stat. § 939.617 (mandatory minimum for child pornography), claiming vagueness/failure of fair notice about applicability of the 3‑year minimum.
- The court affirmed denial of suppression (warrant affidavit established probable cause relying on ESP/NCMEC tip treated as an identified citizen informant) and rejected the vagueness challenge, following this court's prior statutory interpretation in Holcomb.
Issues
| Issue | Silverstein's Argument | State's Argument | Held |
|---|---|---|---|
| Whether the affidavit established probable cause to search based on a Tumblr→NCMEC→police tip | Tip was effectively anonymous/unreliable; affidavit failed to show personal or observational reliability and police corroboration | Tumblr (an identified ESP) is akin to a citizen informant, reporting under a federal duty; affidavit showed observational reliability and police corroboration | Affidavit provided probable cause; ESP tip treated as identified citizen informant with sufficient indicia of reliability |
| Whether Wis. Stat. § 939.617 is unconstitutionally vague (due process/fair notice) | Statute ambiguous as to when the discretionary exception applies, producing arbitrary application and unfair notice | Statute is plain: mandatory 3‑year minimum applies except where defendant is ≤48 months older than the child (Holcomb interpretation) | Statute is not unconstitutionally vague; Holcomb’s plain‑language interpretation controls and forecloses Silverstein’s reading |
Key Cases Cited
- State v. Paszek, 50 Wis. 2d 619 (recognizes greater reliability afforded identified citizen informants)
- State v. Kerr, 181 Wis. 2d 372 (distinguishes tests for identified citizen vs. anonymous informants; relaxed observational‑reliability standard for citizens)
- Illinois v. Gates, 462 U.S. 213 (totality‑of‑the‑circumstances test for probable cause)
- State v. Romero, 317 Wis. 2d 12 (warrant review: substantial basis/fair probability standard)
- State v. Holcomb, 371 Wis. 2d 647 (interpreting Wis. Stat. § 939.617—mandatory minimum applies except for defendants ≤48 months older than victim)