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United States v. Wenzel

United States Court of Appeals, Seventh Circuit

April 27, 2017

United States of America, Plaintiff-Appellee,
v.
David G. Wenzel, Defendant-Appellant.

          Argued April 11, 2017

         Appeal from the United States District Court for the Western District of Wisconsin. No. 15-cr-63-bbc - Barbara B. Crabb, Judge.

          Before WOOD, Chief Judge, and Flaum and Easterbrook, Circuit Judges.

          FLAUM, CIRCUIT JUDGE

         David G. Wenzel appeals the denial of his motion to suppress evidence gathered as the result of search warrants executed on his home. For the following reasons, we affirm.

         I. Background

         Wenzel occasionally looked after young children at his Wisconsin home. On March 25, 2015, one mother dropped off her son in Wenzel's care. When the mother returned to pick up her son, she went into the house to use the restroom. Inside the restroom, she noticed a red light coming from inside a grated vent and pointing towards the toilet. She pried off the vent cover and pulled out a video camera wrapped in black electrical tape. The mother reported this information to the Rock County Sheriff's Department. Law-enforcement officers checked Wenzel's criminal history and discovered that he was on the sex-offender registry and had been convicted in 1997 of first-degree sexual assault.

         On March 26, 2015, a Rock County detective applied for a warrant to search Wenzel's residence. The supporting affidavit described Wenzel's property and listed several categories of items the detective believed could be found in connection with hidden-camera recordings.[1] The affidavit included facts the detective believed would establish probable cause that Wenzel had violated Wis.Stat. § 942.09, "Representations depicting nudity/' which prohibits certain clandestine recordings of others.[2] The affidavit detailed the detective's many years of law-enforcement training and experience, including previous investigations of child-sex offenses and violations of § 942.09; the mother's firsthand account of discovering the video camera in Wenzel's bathroom; the detective's awareness that hidden cameras such as Wenzel's could connect to various recording devices and that such recordings were often shared on the Internet or stored on hard drives; and Wenzel's criminal history and sex-offender-registry status. The affidavit requested permission to search Wenzel's property for recording-related items.

         The same day, the Rock County Circuit Court issued a warrant authorizing the search, and officers conducted the search later that day. On April 2, 2015, law-enforcement officers requested a follow-on search warrant for evidence of child pornography, supported by evidence gathered during the March 26 search.

         On the basis of evidence collected from those searches, on May 13, 2015, the government charged Wenzel with two counts of unlawfully creating child pornography in violation of 18 U.S.C. § 2251(a). On August 17, 2015, Wenzel moved to suppress evidence from the March 26 search and all derivative evidence. The magistrate judge, on September 23, 2015, recommended denying Wenzel's motion and finding that the warrant was supported by probable cause, was not overly broad, and in any case was subject to the good-faith exception. On October 9, 2015, the district court adopted the recommendation.

         Wenzel pleaded guilty on December 28, 2015, pursuant to a written plea agreement that reserved his right to appeal the denial of the motion to suppress. On February 5, 2016, the district court sentenced Wenzel to twenty-five years' incarceration and twenty years' supervised release. This appeal followed.

         II. Discussion

         When reviewing a district court's decision on a motion to suppress, we review the court's factual findings for clear error and its legal conclusions de novo. United States v. ...


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