United States v. Wenzel

854 F.3d 957, 2017 WL 1505317, 2017 U.S. App. LEXIS 7473
CourtCourt of Appeals for the Seventh Circuit
DecidedApril 27, 2017
DocketNo. 16-1323
StatusPublished
Cited by3 cases

This text of 854 F.3d 957 (United States v. Wenzel) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Wenzel, 854 F.3d 957, 2017 WL 1505317, 2017 U.S. App. LEXIS 7473 (7th Cir. 2017).

Opinion

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 [960]*960of 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. Kelly, 772 F.3d 1072, 1077 (7th Cir. 2014) (citation omitted).

A. Probable Cause

Wenzel first argues that the March 26 warrant was not supported by probable cause.3 This Court affords “great deference to the decision of the judge issuing the warrant, and we will uphold a finding of probable cause so long as the issuing judge had a substantial basis to conclude that the search was reasonably likely to uncover evidence of wrongdoing.” United States v. Aljabari, 626 F.3d 940, 944 (7th Cir. 2010) (citations and internal quotation marks omitted); see also Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Probable cause for a search exists when known facts and circumstances would cause a reasonable person to believe that evidence of a crime will be found. Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (citations omitted). Courts employ common sense in reading the supporting affidavit as a whole. See United States v. Quintanilla, 218 F.3d 674, 677 (7th Cir. 2000) (citation omitted).

The warrant in this case was issued based on an affidavit supported by an informant’s ■ tip. In such circumstances, courts consider the totality of the circumstances to determine whether that information establishes probable cause for the search, including the following factors:

[961]*961(1) the extent to which the police have corroborated the informant’s statements;
(2) the degree to which the informant has acquired firsthand knowledge of the events;
(3) the amount of detail provided;
(4) the amount of time between the date of the events and the application for the search warrant; and
(5) whether the informant personally appeared before the judge issuing the warrant.

United States v. Gregory, 795 F.3d 735, 741 (7th Cir. 2015) (citing United States v. Koerth, 312 F.3d 862, 866 (7th Cir. 2002)).

(6) The mother who found Wenzel’s hidden camera did not personally testify before the judge who issued the March 26 warrant. However, the other relevant factors were sufficient to support a finding of probable cause that Wenzel had violated Wis. Stat. § 942.09. The mother provided a detailed, firsthand account of the incident in which she had found a hidden camera wrapped in black electrical tape, placed inside a covered vent, and pointed towards the toilet. She also told the officers that she had left her child at Wenzel’s home to be supervised by Wenzel. The incident took place on March 25, 2015; and the affidavit, based on the mother’s statement, was submitted the next day. And in the meantime, law-enforcement officers searched Wenzel’s criminal history and learned that he was on the sex-offense registry and had been convicted of a first-degree sexual offense. Together, these facts were sufficient to give rise to probable cause that Wenzel had violated Wis. Stat.

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Cite This Page — Counsel Stack

Bluebook (online)
854 F.3d 957, 2017 WL 1505317, 2017 U.S. App. LEXIS 7473, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-wenzel-ca7-2017.