State v. Gant

2015 WI App 83, 872 N.W.2d 137, 365 Wis. 2d 510, 2015 Wisc. App. LEXIS 739
CourtCourt of Appeals of Wisconsin
DecidedOctober 9, 2015
DocketNo. 2014AP1980-CR
StatusPublished
Cited by6 cases

This text of 2015 WI App 83 (State v. Gant) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gant, 2015 WI App 83, 872 N.W.2d 137, 365 Wis. 2d 510, 2015 Wisc. App. LEXIS 739 (Wis. Ct. App. 2015).

Opinions

BRADLEY, J.

¶ 1. David Jerome Gant appeals from a judgment entered on guilty pleas to ten counts of possession of child pornography, contrary to Wis. Stat. § 948.12(lm) (2009-10).1 Gant claims all the child pornography found on his computer should be suppressed because the police violated his Fourth Amendment rights by seizing his computer without probable cause and keeping it for ten months. We hold that the police had probable cause to seize Gant's computer following the unnatural, violent death of his wife, and even if the seizure became unlawful because of its duration, suppression of the evidence of child pornography is not the proper remedy because the police found the evidence after getting a search warrant based on independent sources and the search was sufficiently attenuated from any unlawful retention of the computer. We affirm.

[515]*515BACKGROUND

¶ 2. On September 28, 2010, Gant called police to his home at 4831 North 26th Street for a sudden death investigation of his wife, Crystal, whom he found hanging by the neck from a cable suspended from a beam in their basement. When police arrived, Gant had already moved his wife's body to a bed in the basement. Detective Matthew Goldberg, who investigated the scene, explained that police procedure is to handle an apparent suicide as a homicide. They do this by separating and interviewing witnesses, photographing the scene, and collecting evidence. Police Officer Barbara Court interviewed Gant's young daughter, who reported that her mother had been using a computer prior to her death, although the officer who seized the computers did not have that information at the time of seizure. Gant was also interviewed.

¶ 3. The police collected evidence from the scene, including three computers. Goldberg said computers are collected especially in possible suicide cases because suicide notes are often found on them. The computers were placed on inventory in the Police Administration Building. After Gant's interview, he signed a consent to search his property, but refused to consent to a search of his computers.

¶ 4. Within a day or two, the medical examiner ruled Crystal's death a suicide, but the investigation continued. A week or two later, Gant went to the Police Administration Building and asked for his computers back, but was told the police could not release the property yet. Gant claims he did the same thing again sometime in February 2011, but police told him he could not have any property back yet. [516]*516Gant never took any formal legal steps available under Wis. Stat. § 968.20 to request the release of his property.

¶ 5. On October 31, 2010, Gant was charged with exposing his genitals to a child for the purpose of sexual arousal. Police Officer Deborah Kranz was one of the officers investigating that case. Kranz was also the officer who spoke with Gant's brother, Jason Gant, in April 2011. Jason contacted the police to report Gant admitted he molested his own children and had child pornography on his computer. Kranz checked police reports relating to Gant and learned that Gant's computers were in police inventory. Kranz "pass[ed] along that information that there was possibly child porn on those computers."

¶ 6. On July 25, 2011, Gant was charged with first-degree sexual assault of a child. At about the same time, Kranz received a call from Gant's mother-in-law, Tess Jackson, who had discovered DVD computer discs containing child pornography near Gant's computer desk in his basement. Jackson was cleaning at Gant's home preparing to rent it. After Police Officer Jody Young picked up the DVDs, Kranz had all seventeen discs inventoried and notified the high technology unit of the police department so the discs could be examined.

¶ 7. After being notified about the computer discs by Kranz, Detective Dawn Jones researched all reports in the system on Gant and prepared an application to get a search warrant. The search warrant was issued in August 2011. Pursuant to the search warrant, Detective Richard McQuown, who works in the high technology unit of the Milwaukee Police Department, searched both the computer discs and Gant's computers. He found hundreds of files of child pornography on [517]*517one of Gant's computers — described as the "beige computer" — which was the one taken from a desk in Gant's basement at the time of the suicide. The seventeen DVD computer discs found near that computer desk also contained child pornography.

¶ 8. In October 2011, Jones interviewed Gant. Gant admitted the beige computer was his, that he used the computer to access pornography sites, and that he downloaded pornography involving "short people." He denied having any child pornography.

¶ 9. The State charged Gant with ten counts of child pornography. When police came to arrest Gant, he had a boxcutter and was slashing himself and the police officers. As a result, the State also charged him with battery to and resisting a police officer. These cases were consolidated for trial with the exposing genitals case and the sexual assault of a child case.

¶ 10. Gant filed a motion to suppress the evidence found on his computer on the grounds that the seizure and retention of the computers violated his Fourth Amendment rights. The trial court denied the motion and Gant pled guilty to ten counts of child pornography. The other charges were dismissed as a part of the plea deal. Gant was sentenced to ten years on each count, consecutive for a global sentence of 100 years in prison. Gant now appeals.

DISCUSSION

A. Lawfulness of the Seizure.

¶ 11. Gant argues the seizure of his computers violated the Fourth Amendment of the United States Constitution and article I, section 11 of the Wisconsin [518]*518Constitution, which protects "[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures." U.S. Const, amend. IV; Wis. Const, art. I, § ll.2 He argues the seizure was unlawful because the police did not have probable cause to take the computers. We disagree.

¶ 12. Probable cause exists when there is "a 'fair probability'" that contraband or evidence of a crime will be found in a particular place." State v. Robinson, 2010 WI 80, ¶ 26, 327 Wis. 2d 302, 786 N.W.2d 463 (citation and one set of quotation marks omitted). Probable cause deals with probabilities, not certainties, and therefore we look to see whether the conduct of the police was reasonable by looking objectively at the totality of the circumstances, including both what the investigating officer knew individually and the collective knowledge of the police department. Id., ¶¶ 26-27; see State v. Kutz, 2003 WI App 205, ¶ 12, 267 Wis. 2d 531, 671 N.W.2d 660. Our review of a circuit court's denial of a suppression motion is mixed. [519]*519We will uphold factual findings unless they are clearly erroneous, but the " 'question of whether police conduct violated the constitutional guarantee against unreasonable searches and seizures is a question of constitutional fact,'" which we review independently. State v. Sveum, 2010 WI 92, ¶ 16, 328 Wis. 2d 369, 787 N.W.2d 317 (citation omitted).

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Bluebook (online)
2015 WI App 83, 872 N.W.2d 137, 365 Wis. 2d 510, 2015 Wisc. App. LEXIS 739, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gant-wisctapp-2015.