Motion to Suppress - Staleness, Particularity; Franks Motion

Author’s Note: Thanks to attorney Jerome Buting, of Buting, Williams and Stilling, in Brookfield, Wisconsin, who drafted this motion and gave permission for its use in this book.





MR. CLIENT, Case Number: _______





TO: Assistant District Attorney ____________


MR CLIENT, by his attorney, ————————————-, moves the court for an order excluding from trial all evidence seized from the defendant’s residence on (NAME DATE), together with any derivative evidence. This motion is brought pursuant to Sec. 971.31(2), Stats., on the grounds that evidence was seized from the defendant’s premises, located at_______, City of ———————, County of___________, Wisconsin, pursuant to a search warrant obtained on (DATE), which:

(1) lacked probable cause to believe evidence of a crime would be found at the defendant’s residence at that time;

(2) was obtained on the basis of an affidavit which intentionally or with reckless disregard for the truth contained material omissions of facts or false information, without which the affidavit lacked sufficient facts to establish probable cause; and

(3) lacked the particularity necessary to define proper bounds of the search.

All of these deficiencies were in violation of the rights guaranteed the defendant under the Fourth and Fourteenth Amendments to the United States Constitution; Article I, Sections 1, 2, 9 and 11 of the Wisconsin Constitution; Chapter 968, Stats.; and Franks v. Delaware, 438 U.S. 154, 155-56 (1978); Mapp v. Ohio, 367 U.S. 643 (1961); Trupiano v. United States, 334 U.S. 699 (1948); and Weeks v. United States, 232 U.S. 383 (1914).

The defendant requests an evidentiary hearing under Franks to establish facts for the record.

Further, the defendant moves for exclusion from use as evidence all derivative evidence, including but not limited to statements taken from the defendant and evidence discovered as a result of additional searches of computer devices seized from the defendant or his residence on (DATE). Taylor v. Alabama, 457 U.S. 687 (1982); Dunaway v. New York, 442 U.S. 200 (1979); Brown v. Illinois, 422 U.S. 590 (1975); Wong Sun v. United States, 371 U.S. 471 (1963); Maryland v. Garrison, 480 U.S. 79 (1987); State v. Brady, 130 Wis. 2d 443, 388 N.W.2d 151 (1986); State v. Smith, 131 Wis. 2d 220, 388 N.W.2d 601 (1986); and State v. Flynn, 92 Wis. 2d 427, 285 N.W.2d 710 (1979).

AS GROUNDS THEREFOR, the defendant submits the following:

  1. Legal Standards.

    The Fourth Amendment prohibition against unreasonable searches and seizures is designed to safeguard the privacy and security of individuals against arbitrary invasions by government officials. State vs. Boggess, 115 Wis. 2d 443, 448-49 (1983). A search warrant may only be issued on the basis of a finding of probable cause by a neutral and detached magistrate. United States vs. United States District Court, 407 U.S. 297, 318 (1972); Ritacca vs. Kenosha County Court, 91 Wis. 2d 72, 77 (1979). The existence of probable cause is determined by analyzing the “totality of the circumstances.” Illinois v. Gates, 462 U.S. 213, 238 (1983).

    A. Staleness.

    Facts establishing that probable cause existed at some time in the past will not support probable cause at the time the warrant is issued unless circumstances exist from which it may be inferred that the asserted facts and grounds continued to exist up to the time the application for a search warrant was made. The United States Supreme Court ruled long ago that “it is manifest that the proof must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time.” Sgro v. United States, 287 U.S. 206, 210, 53 S. Ct. 138, 140, 77 L. Ed. 260 (1932) (emphasis added).

    B. Franks v. Delaware Standard.

    A defendant may contest a finding of probable cause to issue a search warrant under Franks v. Delaware, 438 U.S. 154, 155-56 (1978), if the defendant makes a substantial preliminary showing that when police requested a search warrant, the affiant provided false information intentionally or with reckless disregard for the truth. Where the faulty information was necessary to establish probable cause, the Fourth Amendment requires that a hearing be conducted. If, at the hearing, it is proved that false information was presented intentionally or with reckless disregard for the truth, and if the false information is set aside, there is no longer probable cause, the search warrant must be voided. Any fruits from the warrant must then be excluded from evidence to the same extent as if probable cause was lacking on the face of the affidavit in the first place. Id. The Franks rule applies not just to affirmative misstatements but also to material omissions of fact from the search warrant affidavit. State v. Mann, 123 Wis.2d 375, 385-86, 570 N.W.2d 601 (1985).

    C. Particularity Requirement.

    The Fourth Amendment’s particularity requirement means that any items, including data, can only be seized if there is probable cause to support their seizure. See Coolidge v. N.H., 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The Supreme Court has recognized that the particularity requirement “ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.” Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987). As a result, “the scope of a lawful search is ‘defined by the object of the search and the places in which there is probable cause to believe that it may be found. Just as probable cause to believe that a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase.’ ” Id. at 84–85, 107 S.Ct. 1013.

    The particularity requirement prevents the government from engaging in general exploratory rummaging through a person's papers and effects in search of anything that might prove to be incriminating. State v. Noll, 116 Wis. 2d 443, 450, 343 N.W.2d 391, 395 (1984), citing Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971); State v. Starke, 81 Wis.2d 399, 413, 260 N.W.2d 739 (1977). The requirement of particularity applies to both the description of the items to be seized and the places to be searched. If either is drafted too broadly, part or all of the warrant may be invalidated and some or all of the evidence obtained may be suppressed. State v. Noll, 116 Wis. 2d at 454-55; State v. Marten, 165 Wis.2d 704, 77 N.W.2d 304 (1991).

  2. The probable cause offered in the affidavit for this search warrant was exceedingly stale – nearly four and one half years old – and thus failed to supply probable cause that evidence of a crime then existed at the defendant’s residence.

    The search warrant in this case is entirely predicated on a single event lasting a total of only 13 seconds, on (DATE), when an IP address later linked to the defendant’s residence allegedly either received or attempted to receive some images of child pornography.1 It is doubtful that probable cause existed to search the defendant’s residence in the same year based on this thin record, but there was certainly no probable cause that child pornography would still be found there four and one half years later.

    Much of the content of the affidavit used in this search warrant is boilerplate language used in any search warrant for a child sex related criminal investigation. It is not until page 21, ¶ 40, that the affiant confronted head-on the glaring problem in this case, that “there is about a 4-year-and-4-month gap that exists from when (NAME CLIENT) was identified as a child pornography suspect until the application for this search warrant.” The affidavit then recounted that this case was one of five where the DCI apparently failed to pursue leads they received more than 4 years earlier. After the embarrassing negligence of the department was made public, Special Agent _________ was reassigned this case and tried to rescue the botched investigation. His affidavit recounted his extensive experience investigating crimes against children: “I believe I have as much experience or more experience in ICAC investigations than almost all other ICAC task force law enforcement officers in the United States.” He offered this point to convince the court that he has “a unique perspective . . regarding staleness in child pornography investigations.” But the “expert” opinions of Agent _________ were not really drafted with the facts of _________’s case or this defendant in mind, and thus do not add up to sufficient probable cause that evidence of a crime would be present in the place to be searched.

    In his affidavit, at ¶ 15, p. 8, Agent _________ stated that individuals who are involved with child pornography “are not likely to voluntarily dispose of all the images they possess, as those images are viewed as prized and valuable materials.” That basic premise has been accepted by some courts for person with a demonstrated interest in such materials.2 As discussed below, however, there is no evidence in the affidavit that Mr. _________ had any such interest. Instead of trying to provide evidence about Mr. _________ specifically, Agent _________ attempted to buttress his argument that child pornographers collect and retain their images indefinitely by reciting a number of other cases where he alleged that his investigations revealed that suspects still possessed child pornography even years later. However, none of the examples is relevant to _________’s case for several reasons.

    Many of the offered examples involved suspects who were already known to have purchased...

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