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State v. Silverstein

Court of Appeals of Wisconsin, District I

August 1, 2017

State of Wisconsin, Plaintiff-Respondent,
v.
Samuel Silverstein, Defendant-Appellant.

         APPEAL from a judgment of the circuit court for Milwaukee County No. 2015CF2778: ELLEN R. BROSTROM, Judge. Affirmed.

          Before Brennan, P.J., Brash, and Dugan, JJ.

          BRENNAN, P.J.

         ¶1 Samuel Silverstein appeals from a judgment of conviction, entered on his guilty plea, for three counts of possession of child pornography. Silverstein first argues that the trial court erred in denying his motion to suppress the evidence recovered from his computer after the search of his home pursuant to a warrant. He contends that the affidavit for the search warrant failed to state probable cause because it was based on "the uncorroborated tip of an anonymous informant." The informant was Tumblr.com ("Tumblr"), an electronic service provider ("ESP") required by federal law to report suspected child pornography to the National Center for Missing and Exploited Children ("NCMEC"), which in turn provided the information to the police.

         ¶2 We conclude, based on Wisconsin case law regarding citizen informants found in State v. Paszek, 50 Wis.2d 619, 630, 184 N.W.2d 836 (1971), and State v. Kerr, 181 Wis.2d 372, 381, 511 N.W.2d 586 (1994), that a tip from an ESP is properly viewed as one from an identified citizen informant, not an anonymous informant, which therefore establishes the personal reliability requirement in our case law. Additionally, the affidavit here also shows sufficient indicia of observational reliability of the ESP. Therefore, applying the "great deference" we pay to a determination of probable cause, see State v. Anderson, 138 Wis.2d 451, 469, 406 N.W.2d 398 (1987), we conclude that the warrant-issuing magistrate "had a substantial basis for concluding that a search would uncover evidence of wrongdoing." See id. Accordingly, we uphold the determination.

         ¶3 Silverstein also raises a constitutional challenge to his sentence. He argues that WIS. STAT. § 939.617 (2015-16)[1] violated due process requirements of fair notice because it failed to provide clear guidance for those who enforce and apply the law and created uncertainty about whether he would be subject to a mandatory minimum three-year sentence or could instead receive a lesser sentence. In State v. Holcomb, 2016 WI.App. 70, 371 Wis.2d 647, 886 N.W.2d 100');">886 N.W.2d 100, [2] this court interpreted § 939.617 and concluded that the statute's language was "plain and unambiguous" and required a mandatory minimum sentence for all defendants more than four years older than the child victims. Id., ¶\5. This court concluded that "[t]he only reasonable construction" of the statute requires the imposition of a mandatory minimum sentence. Id., ¶ll. We find Holcomb's holding dispositive of the due process fair notice issue.

         ¶4 We reject Silver stein's arguments and affirm.

         BACKGROUND

         ¶5 This case has a fact pattern common in internet child pornography cases. A private company providing internet services discovers images of suspected child pornography in a user's account and then, pursuant to federal law, [3] forwards information about the images and the user's account to NCMEC. NCMEC is directed by federal law to serve as a clearinghouse for such tips and as a liaison to law enforcement.[4] As NCMEC describes its role in the report generated in this case, "When a Reporting ESP voluntarily reports an IP [Internet Protocol] address for the 'User or Person Being Reported, ' NCMEC Systems will geographically resolve the IP address via a publicly-available online search." In other words, NCMEC identifies where the IP address identified in the ESP's tip is located. Then, pursuant to federal law, NCMEC sends both the original tip and its geographic information to relevant federal and state law enforcement agencies. Law enforcement agencies then investigate and obtain search warrants, and may make arrests. That was the process followed here as set forth in the affidavit for the search warrant.

         ¶6 In this case, the initial tip was provided to NCMEC by Tumblr, a social media web site[5] that allows account holders to publicly post images to blogs. According to the warrant affidavit,

The NCMEC Cybertip listed the reporting agency was Tumblr. Said report indicated on 06/01/15 at about 17:45:00 UTC, [6] Tumblr created a report regarding "Child Pornography" related to URL: "famousenemyland.tumblr.com" with email ssilver58@att.net and IP Address 99.185.140.72.

         ¶7 In a page from the NCMEC "CyberTipline Report" that was attached to the affidavit, the "[s]ubmitter" is identified as:

Tumblr
Mahashraya Sundararaman

         ¶8 According to the affidavit for the warrant, NCMEC reported that the Tumblr tip identified specific file names for nine still images and a video depicting child pornography. After receiving the information from Tumblr, NCMEC added the state, city, zip code, area code, and internet service provider for the IP address associated with the nine still images and one video. On July 9, 2015, NCMEC sent the information in two separate tip reports to the Bayside Police Department.

         ¶9 The warrant affidavit, signed by Detective Bryan Bichler of the Glendale Police Department and attached to eleven pages from the NCMEC reports, further states that through subpoenas and search warrants, Officer Ryan Bowe of the Bayside Police Department determined that the subscriber using the identified IP address was Sam Silver stein of 6898 N. Seville Ave. in Glendale. A search warrant was issued on Detective Bichler's affidavit, and Silverstein's house was searched.

         ¶10 Police found a flash drive containing videos ranging in length from one minute to twenty-three minutes. The videos portrayed females estimated to be four to fourteen years old engaged in sexual activity; seven of the videos depicted sex acts involving a female child and an adult male. [7]Silverstein admitted the drive belonged to him, waived his rights, and made statements to police acknowledging that he possessed the images "for his own purposes" and that he "may have" posted screen captures from the videos to his Tumblr account. The complaint explains that one video contained a picture that matched the third image in the cyber tip, and a second video contained two of the still images (images numbered four and five) reported in the cyber tip.

         ¶11 Based on his possession often videos found on the drive, Silverstein was charged with ten counts of possession of child pornography, a Class D felony. Silverstein challenges here, as he did below, the search warrant application on the grounds that it lacked probable cause due to the insufficiency of the tip from Tumblr through NCMEC to the police. Here a circuit court judge[8] signed the search warrant, approving the application. Silverstein challenged the search warrant, and the recovery of the computer and images, with a motion to suppress before the circuit court but was unsuccessful.

         ¶12 After the trial court denied Silverstein's motion to suppress, he pled guilty, pursuant to a plea agreement, to three counts and the remaining seven were dismissed and read in. He now appeals the conviction raising again the constitutional challenge to the search warrant's sufficiency and adding another, a due process challenge to the application of the minimum mandatory sentence requirements of WIS. STAT. § 939.617 to his sentence.

         DISCUSSION

         I. We uphold the determination that the affidavit stated probable cause to issue a search warrant.

         A. The ...


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