United States District Court, E.D. Wisconsin
ORDER ADOPTING MAGISTRATE JUDGE JONES'
RECOMMENDATION (DKT. NO. 28) AND DENYING DEFENDANT'S
MOTION TO SUPPRESS (DKT. NO. 20)
PAMELA PEPPER United States District Judge.
grand jury charged defendant Michael E. Bruening with
distributing child pornography, possession of child
pornography and possession of obscene visual representations
of the sexual abuse of children. Dkt. No. 1 at 1. The
defendant filed a motion to suppress. Dkt. No. 20.
Specifically, he argued that the warrant used to obtain
evidence against him was not supported by probable cause.
Dkt. No. 20 at 1. Magistrate Judge Jones has issued a report,
recommending that the court deny the motion to suppress. Dkt.
No. 28. The defendant objected to the report and
recommendation. Dkt. No. 32. The court adopts Judge
Jones' recommendation, and denies the defendant's
motion to suppress.
Jones recounts that the National Center for Missing and
Exploited Children issued a report that the defendant had
uploaded child pornography onto Tumblr. Dkt. No. 28 at 1. Law
enforcement used this information to obtain a search warrant
for the defendant's home, where they found a hard drive
containing a number of images of child pornography and a cell
phone “that contained computer-generated drawings
depicting prepubescent boys being sexually assaulted by adult
men.” Id. The defendant argued in the motion
to suppress that there was no probable cause for issuance of
the search warrant, because it was based on one sexually
explicit video uploaded to Tumblr five months prior to the
issuance of the warrant. Id.at 7. He argued that the
affidavit in support of the warrant did not establish that
the individual in the video was a minor, that it did not
establish that the person who uploaded the video knew the
person in it was a minor, and that the information was stale
by the time the warrant issued. Id.
Jones disagreed with the defendant on all fronts. The
defendant argued that, rather than relying on a doctor from
the Child Protection Center at Children's Hospital of
Wisconsin and a detective to conclude that the person in the
video was a minor, investigating officers should have shown
the video to the judge who issued the warrant. Id.at
7. Judge Jones rejected that argument, finding that the
defendant essentially argued that the officers were required
“to establish to a near certainty that the individual
depicted in the video was a minor.” Id. at 8.
Judge Jones held that the probable cause standard was not
nearly so stringent. Id.
defendant also argument that the affidavit failed to
establish probable cause that the person who uploaded the
video knew the person in it to be a minor. Id. at
10. Again, Judge Jones found that the officers could
reasonably make that inference, given what they'd seen in
the video and what the doctor had said. Id.
defendant argued that the information provided by the
National Center for Missing and Exploited Children was stale,
because the video was uploaded to Tumblr months before the
search warrant issued. Id. Judge Jones found that
the Seventh Circuit's decision in United States v.
Seiver, 692 F.3d 774 (7th Cir. 2012), which noted that
courts must view staleness differently in the context of
modern technology and the behaviors of those who use it.
Id. at 11.
court agrees with all of these conclusions. It also agrees
with Judge Jones' finding that, even if the affidavit had
not been supported by probable cause, “the evidence
seized from the defendant's home still would be
admissible pursuant to the good-faith exception to the
exclusionary rule.” Id. at 13. In his
objection, the defendant disagreed with Judge Jones'
decision that the record does not establish that the warrant
was not so lacking in probable cause as to render the
officer's belief in its existence entirely unreasonable.
Dkt. No. 32 at 4. The court, as did Judge Jones, finds
good-faith exception precludes application of the
exclusionary rule when law enforcement reasonably and in good
faith believed that a search was lawful.” United
States v. Patrick, 842 F.3d 540, 551 (7th Cir. 2016)
(citing United States v. Tomkins, 782 F.3d 338, 349
(7th Cir. 2015)). “Searches pursuant to a warrant will
rarely require any deep inquiry into reasonableness, for a
warrant issued by a magistrate normally suffices to establish
that a law enforcement officer has acted in good faith in
conducting the search.” U.S. v. Leon, 468 U.S.
897, 922 (1984) (quotations and citations omitted). There are
some circumstances, however, that may demonstrate a lack of
good faith. Id. at 922-23. In U.S. v. Leon,
the Supreme Court discussed some of these circumstances:
Suppression therefore remains an appropriate remedy if the
magistrate or judge in issuing a warrant was misled by
information in an affidavit that the affiant knew was false
or would have known was false except for his reckless
disregard of the truth. The exception we recognize today will
also not apply in cases where the issuing magistrate wholly
abandoned his judicial role in the manner condemned in
Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99
S.Ct. 2319, 60 L.Ed.2d 920 (1979); in such circumstances, no
reasonably well trained officer should rely on the warrant.
Nor would an officer manifest objective good faith in relying
on a warrant based on an affidavit “so lacking in
indicia of probable cause as to render official belief in its
existence entirely unreasonable.” Finally, depending on
the circumstances of the particular case, a warrant may be so
facially deficient-i.e., in failing to particularize the
place to be searched or the things to be seized-that the
executing officers cannot reasonably presume it to be valid.
Id. (citations and footnotes omitted).
the defendant argues that the officers should have known that
the warrant was not issued pursuant to a reasonable finding
of probable cause because (1) the officers unreasonably
relied on the medical doctor's finding that the child
depicted in the video at issue was a minor and (2) the
officers unreasonably relied on outdated information. Dkt.
No. 32 at 4-5.
not unreasonable for the officer to rely on the doctor's
medical opinion of the age of the person in the video. The
doctor worked at the Children's Hospital of Wisconsin,
and she based her opinion on the “apparent pubertal
stage and general appearance of the male.” Dkt. No. 28
at 3. The doctor was arguably more qualified than the officer
or a judge to determine the age of the person in the video.
Second, although the video was uploaded six months prior to
the officer's application for a search warrant, the
officer's investigation ...