State v. Thomas G. Schye ( 2023 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 5, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2021AP2094-CR Cir. Ct. No. 2018CF1787
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
THOMAS G. SCHYE,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Eau Claire
County: JOHN F. MANYDEEDS, Judge. Affirmed.
Before Stark, P.J., Hruz and Gill, JJ.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
¶1 PER CURIAM. Thomas G. Schye appeals from a judgment
convicting him of one count of possession of child pornography. Schye argues
No. 2021AP2094-CR
that the circuit court erred when it denied two of his motions to suppress evidence
obtained as a result of the search of his home and electronic devices pursuant to a
warrant, as well as his motion for reconsideration. According to Schye, the search
warrant leading to the discovery of the child pornography on his electronic device
was not supported by probable cause. He also contends that the search warrant
affiant provided false information and omitted material facts. For the reasons
discussed below, we affirm the judgment.
BACKGROUND
¶2 In November 2018, a special agent with the Wisconsin Department
of Justice, Division of Criminal Investigation (DCI) and the Wisconsin Internet
Crimes Against Children (ICAC) Task Force submitted a search warrant affidavit
that sought judicial approval to search Schye’s home and electronic devices for
child pornography. The application for the search warrant was based on three
“cybertips” from the National Center for Missing and Exploited Children
(NCMEC), which were originally sent to NCMEC from Pinterest and Microsoft,
and which NCMEC then forwarded to the ICAC Task Force.1 The cybertips
implicated Schye. According to the agent who submitted the affidavit, the
cybertips contained three images (two of which were the same image) that
“appeared to contain child pornography or child erotica as defined by” WIS. STAT.
1
“NCMEC is funded in order to ‘operate a cyber tipline to provide online users and
electronic service providers an effective means of reporting Internet-related child sexual
exploitation in the areas of … possession, manufacture, and distribution of child pornography[.]’”
State v. Silverstein, 2017 WI App 64, ¶5 n.4, 378 Wis. 2d 42, 902 N.W.2d 550 (alteration in
original; citation omitted).
2
No. 2021AP2094-CR
§ 948.12(1m) (2021-22).2 The agent did not include the images with the affidavit.
He did, however, include with the affidavit a description of each image.
¶3 A judge (“the warrant-issuing judge”) signed a warrant authorizing
the search of Schye’s home and electronic devices for evidence of child
pornography. Following the execution of the search warrant, law enforcement
located a video on a computer hard drive depicting “two early pubescent males”
engaging in sexual acts. Based on that video, Schye was charged with one count
of possession of child pornography.
¶4 Schye later filed two motions to suppress evidence obtained on
execution of the search warrant. In his first motion to suppress, Schye argued that
the search warrant affidavit did not provide probable cause to issue the search
warrant. Specifically, he argued that the warrant-issuing judge did not view the
images identified in the affidavit and that this fact was determinative because the
images described in the affidavit were not child pornography. The circuit court
denied the motion to suppress.
¶5 In Schye’s second motion to suppress, he argued that the agent
“deliberately” and/or “recklessly omitted” information in his search warrant
affidavit and, therefore, the results of the search conducted pursuant to the warrant
should be suppressed under Franks/Mann.3 He also asked the circuit court to
2
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
3
See Franks v. Delaware, 438 U.S. 154 (1978); State v. Mann, 123 Wis. 2d 375, 367
N.W.2d 209 (1985).
3
No. 2021AP2094-CR
reconsider its earlier order denying his first motion to suppress. The court denied
Schye’s Franks/Mann motion and the motion for reconsideration.
¶6 Ultimately, Schye pled no contest to the single count charged.
Schye now appeals his judgment of conviction, arguing that the circuit court erred
when it denied his two motions to suppress and his motion for reconsideration.
DISCUSSION
I. Probable cause
¶7 Schye first contends that the circuit court should have granted his
initial motion to suppress because the search warrant affidavit “was based on
insufficient information to show that child pornography would be found at [his]
home” or on his electronic devices. Schye also asserts that the search warrant was
constitutionally deficient because the warrant-issuing judge did not view the actual
images referenced in the search warrant affidavit.
¶8 The Fourth Amendment’s Warrant Clause requires:
(1) prior authorization by a neutral, detached magistrate;
(2) a demonstration upon oath or affirmation that there is
probable cause to believe that evidence sought will aid in a
particular conviction for a particular offense; and (3) a
particularized description of the place to be searched and
items to be seized.
State v. Sveum, 2010 WI 92, ¶20, 328 Wis. 2d 369, 787 N.W.2d 317.
¶9 To determine whether a search warrant was supported by probable
cause, we examine “the totality of the circumstances presented to the
warrant-issuing [judge] to determine whether [he or she] had a substantial basis for
concluding that there was a fair probability that a search of the specified premises
4
No. 2021AP2094-CR
would uncover evidence of wrongdoing.” State v. Silverstein, 2017 WI App 64,
¶13, 378 Wis. 2d 42, 902 N.W.2d 550 (citation omitted). Stated differently, the
question is “whether objectively viewed, the record before the warrant-issuing
judge provided ‘sufficient facts to excite an honest belief in a reasonable mind that
the objects sought are linked with the commission of a crime, and that they will be
found in the place to be searched.’” State v. Ward, 2000 WI 3, ¶27, 231 Wis. 2d
723, 604 N.W.2d 517 (citation omitted).
¶10 “The evidence necessary to establish probable cause to issue a
search warrant is less than that required to support a bindover following a
preliminary examination.” Silverstein, 378 Wis. 2d 42, ¶13 (citation omitted).
“The warrant-issuing judge may draw reasonable inferences from the facts
asserted in [a search warrant] affidavit. ‘The test is not whether the inference
drawn is the only reasonable inference. The test is whether the inference drawn is
a reasonable one.’” State v. Jones, 2002 WI App 196, ¶10, 257 Wis. 2d 319, 651
N.W.2d 305 (citations omitted).
¶11 Our review of the warrant-issuing judge’s decision is “confined to
the record as it existed before the magistrate.” State v. Sloan, 2007 WI App 146,
¶8, 303 Wis. 2d 438, 736 N.W.2d 189 (citation omitted). In analyzing whether
probable cause existed to issue a search warrant, “[w]e accord great deference to
the warrant-issuing judge’s determination of probable cause, and that
determination will stand unless the defendant establishes that the facts are clearly
insufficient to support a finding of probable cause.” Silverstein, 378 Wis. 2d 42,
¶13 (citation omitted).
¶12 Within the search warrant affidavit, the agent described his law
enforcement experience, which included an assignment to the ICAC Task Force
5
No. 2021AP2094-CR
and employment with the DCI since 2017. He also outlined his training and
experience in those roles as they related to investigating Internet crimes against
children and child pornography.
¶13 The agent further detailed that individuals “involved in the purchase,
receipt, and attempted purchase and receipt of child pornography” “receive sexual
gratification, stimulation, and satisfaction … from fantasies they may have
viewing children engaged in sexual activity or sexually suggestive poses.”
Similarly, those individuals “may collect sexually explicit or suggestive materials
relating to children in a variety of media” and that “individuals who possess child
pornography may store it on numerous devices.”
¶14 Further, the agent discussed his knowledge of how Internet service
providers submit cybertips relating to the online sexual exploitation of children to
NCMEC pursuant to federal law. According to the agent, when NCMEC receives
a cybertip, “NCMEC details the alleged on-line sexual exploitation of children
reported by the Internet service provider in a CyberTipLine report.” The agent
then described that, in Wisconsin, NCMEC submits the cybertip to the ICAC Task
Force.
¶15 The agent further explained in the search warrant affidavit that he
had examined the cybertips that the ICAC Task Force received from NCMEC and
discovered that all three were “still images” that “appeared to contain child
pornography or child erotica as defined by WIS. STAT. § 948.12(1m).” Two of the
6
No. 2021AP2094-CR
images were the same but had different Uniform Resource Locators (URLs).4
Although the agent did not include the three images with the affidavit, he
described them as follows:
[Image 1]
[I] examined the above file and observed that the image
was a color JPEG Image depicting a partially nude
prepubescent boy, who is posed in an indoor scene.[5] The
child is standing and is bent over, with both hands holding
a pair of athletic shorts; the child appears to be in the
process of putting the athletic shorts on. The child is
wearing red knee high socks with a white stripe near the
top. The child’s unclothed penis is visible in the
photograph.
[Image 2]
[I] examined the above file and observed that the image
was a single color image depicting a pubescent child with
below shoulder length brunette hair. The child has no
clothing on and their buttock is completely exposed to the
camera. The child has both hands behind their head. The
photograph appears to be staged and the focal point of the
photograph is the child.
[Image 3]
[The same description as Image 2]. This image is the same
image that is described above, however the URL provided
by [P]interest is different.
4
A URL is “the address of a resource (such as a document or website) on the Internet
that consists of a communications protocol followed by the name or address of a computer on the
network and that often includes additional locating information (such as directory and file
names).” URL, MERRIAM-WEBSTER DICTIONARY, https://www.merriam-
webster.com/dictionary/URL (last visited Nov. 28, 2023).
5
The agent stated in the search warrant affidavit that he used the terms “pubescent” and
“prepubescent” based on his “experience as an investigator and [his] common experience.”
“Pubescent” was used to mean “a child … [who] evidences some physical and sexual maturation
consistent generally with a young teenager or teenager.” “Prepubescent” was used to mean “a
child … [who] does not exhibit any, or only very limited, physical-sexual development … such
that the child appears to be well under the age of eighteen.”
7
No. 2021AP2094-CR
The affidavit also provided information identifying Schye as the individual
associated with the Pinterest account and IP address6 that uploaded the images.
According to the affidavit, the agent surveilled Schye’s home and identified “two
other males associated with the residence … who appear[ed] to be [Schye’s] adult
children,” the youngest born in 1988.
¶16 Furthermore, the agent’s search warrant affidavit included a
reference to a 2007 incident where Schye was found by a DCI agent in a parked
car in front of a McDonald’s “children’s play area.” At that time, Schye allegedly
told the agent that “he was sexually attracted to children between the ages of 5 and
12 years old.” Due to his actions in 2007, Schye was convicted of invasion of
privacy.
¶17 Schye contends that the agent’s description of the images in the
search warrant affidavit was insufficient to establish probable cause. According to
Schye, the only “way the images depicted ‘sexually explicit conduct’ is if the
minors depicted were engaged in the ‘lewd exhibition of intimate parts’” as that
term is used in WIS. STAT. § 948.01(7). Schye argues that the agent did not
“provide any facts suggesting that the minors [in the images] were engaged in the
‘lewd exhibition of intimate parts’” and, therefore, the images as described did not
constitute child pornography.
¶18 Schye fails to meet his burden to establish that the agent’s search
warrant affidavit was “clearly insufficient to support a finding of probable cause.”
6
An IP address is “the numeric address of a computer on the Internet.” IP address,
MERRIAM-WEBSTER DICTIONARY, https://www.merriam-webster.com/dictionary/IP%20address
(last visited Nov. 28, 2023). The address is “unique” in that it identifies a specific device on the
Internet. State v. Baric, 2018 WI App 63, ¶4 n.3, 384 Wis. 2d 359, 919 N.W.2d 221.
8
No. 2021AP2094-CR
See Silverstein, 378 Wis. 2d 42, ¶13 (citation omitted). The question before us is
not whether the images depicted child pornography, but whether there was a
reasonable basis for the warrant-issuing judge to find that there was a fair
probability that a search of Schye’s home and electronics would uncover evidence
of possession of child pornography based on the descriptions of the images and
the other information submitted by the agent.7 Under these facts, the
warrant-issuing judge had the requisite information to issue a search warrant.
¶19 We first note that based upon the images described in the search
warrant affidavit, the circuit court could reasonably infer that the images
constituted child pornography. See Jones, 257 Wis. 2d 319, ¶10. Child
pornography includes “any … photograph … of a child engaged in sexually
explicit conduct.” WIS. STAT. § 948.12(1m). “Sexually explicit conduct” includes
the “[l]ewd exhibition of intimate parts.” WIS. STAT. § 948.01(7)(e). “Intimate
7
According to Schye, if the images described in the search warrant affidavit were not
child pornography, then we should not consider them in the probable cause analysis lest we
dissolve into a “dystopian world, such as [that] portrayed in the 2002 feature film ‘Minority
Report,’ where ‘pre-crime’ is punished.” But the search warrant in this case was not about
preventing a future crime. The warrant-issuing judge determined that there was a fair probability
that there was child pornography in Schye’s possession at the time the warrant was signed.
Probable cause deals “with probabilities. These are not technical; they are the factual and
practical considerations of everyday life on which reasonable and prudent men [and women], not
legal technicians, act.” Illinois v. Gates, 462 U.S. 213, 231 (1983). To that end, not every fact
relied on in issuing a search warrant need be unlawful activity. See State v. Robinson, 2010 WI
80, ¶29, 327 Wis. 2d 302, 786 N.W.2d 463.
[P]robable cause requires only a probability or substantial chance
of criminal activity, not an actual showing of such activity. By
hypothesis, therefore, innocent behavior frequently will provide
the basis for a showing of probable cause; to require otherwise
would be to sub silentio impose a drastically more rigorous
definition of probable cause than the security of our citizens’
demands.…
Id. (alteration in original; quoting Gates, 462 U.S. at 243 n.13).
9
No. 2021AP2094-CR
parts,” in turn, include the “buttock, anus, groin, scrotum, [or] penis … of a human
being.” WIS. STAT. § 939.22(19). There is no question that the images depicted
the intimate parts of human beings and that the agent described the images as
depicting children.
¶20 “Lewd” has been interpreted in the child pornography context to
include images that “visibly display the child’s genitals or pubic area. Mere
nudity is not enough.” State v. Petrone, 161 Wis. 2d 530, 561, 468 N.W.2d 676(1991), overruled on other grounds by State v. Greve, 2004 WI 69, ¶31 n.7, 272
Wis. 2d 444, 681 N.W.2d 479. Further, the child must be “posed as a sex object”
and the image is lewd if it has an “unnatural” or “unusual” focus on a child’s
genitalia. Id. Importantly, our supreme court has noted that these principles are
merely “guidelines to determine the lewdness of a photograph but [juries] may use
common sense to distinguish between a pornographic and innocent photograph.”
Id.¶21 Here, the warrant-issuing judge could reasonably have inferred that
the children in the images were being posed as sex objects while nude. Image 1
described a child “posed” with his penis visible. Images 2 and 3 were similarly
described as depicting a “staged” child with his or her buttocks “completely
exposed.” Although no “genitals” were depicted in Images 2 and 3, the
warrant-issuing judge was free to use common sense to distinguish an innocent
depiction of a child and a depiction where the child is a sex object with an
“unnatural” focus on the child’s buttocks—which qualify as the child’s “intimate
parts” under WIS. STAT. § 939.22(19). See Petrone, 161 Wis. 2d at 561. In other
words, simply because Schye does not agree that the images described do not
amount to child pornography does not mean the warrant-issuing judge was
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No. 2021AP2094-CR
required to draw that same conclusion so long as the inferences that the judge
made were reasonable. See Jones, 257 Wis. 2d 319, ¶10.
¶22 According to Schye, the agent’s descriptions of the images in his
search warrant affidavit are “extremely similar” to the descriptions in a search
warrant affidavit discussed in United States v. Griesbach, 540 F.3d 654 (7th Cir.
2008). In Griesbach, a defendant filed a motion to suppress the results of a search
because the search warrant was not supported by probable cause. Id. at 655. As
in this case, the affidavit in Griesbach stated that law enforcement suspected that
the defendant possessed child pornography in violation of WIS. STAT.
§ 948.12(1m), but the affidavit did not include the images that led to the
investigation. See Griesbach, 540 F.3d at 655. The affidavit that the
warrant-issuing judge relied on “described three images that the police investigator
had found on the Internet and traced to the defendant.” Id.The first “depicts a prepubescent female posing by a body
of water. She has her top pulled up to expose her breasts.”
The second “depicts a female who appears to be under the
age of 18 posing naked. She is standing to expose her full
body.” The third “depicts a naked female exposing her
vagina. The female is lying on her back and her vagina is
the primary focus of the image. The female appears to be
under the age of 18. The image is from identified child
pornography series ‘Chelsea’ where law enforcement has
identified the child victim.”
Id. The State relied solely on the third image to argue that the warrant was
supported by probable cause. Id.¶23 Although the court stated that “[t]he failure of the state investigator
to submit the image itself with her affidavit to the state judge is the strangest thing
about this case,” the court ultimately concluded that “the verbal description was
sufficient to justify an inference that a search of the defendant’s computer files
11
No. 2021AP2094-CR
would turn up pornographic images.” Id. at 656. In so holding, the court relied on
the affiant’s: description of the image as being primarily focused on the child’s
vagina, assertion that the image’s known history was associated with a child
pornography series, and statement that the image was reported by a website. See
id.¶24 Schye argues that the first two images described in Griesbach are
similar to the images described in the search warrant affidavit in this case. To the
extent we find Griesbach persuasive, see State v. Mechtel, 176 Wis. 2d 87, 94,
499 N.W.2d 662 (1993) (decisions of federal circuit courts of appeal or federal
district courts are not binding upon Wisconsin courts), we note that the court in
Griesbach did not review whether the first two images provided probable cause
for the issuance of the search warrant because the State did not make that
argument. See id. at 655-56. Even so, the images in this case are more like the
third image in Griesbach, which was described in the search warrant affidavit as
depicting, as the “primary focus of the image,” a child “exposing her vagina.” Id.
Similarly, the agent in this case described the “focal point” of Images 2 and 3 to be
the “staged” child, who was naked and had his or her buttocks “completely
exposed to the camera.” Similarly, Image 1 was described as depicting a “posed”
child with his penis exposed to the camera. In both Griesbach and this case, the
warrant-issuing judge could reasonably determine that the images depicted child
pornography.
¶25 Schye argues that the agent’s statement in the search warrant
affidavit that the images contained child pornography or child erotica as defined
by WIS. STAT. § 948.12(1m) means that the images could have been
constitutionally protected under the First Amendment because child erotica is not
child pornography. According to Schye, the agent was required to describe the
12
No. 2021AP2094-CR
photographs so that they would meet the definition of child pornography. For
example, he argues that the agent failed to state that there was an “unnatural” or
“unusual” focus on the child’s genitalia. See Petrone, 161 Wis. 2d at 561.
Otherwise, Schye argues, images sufficient to establish probable cause for the
issuance of a search warrant would include “a parent’s bathtub photograph of their
child.”
¶26 A search warrant “affidavit is to be read in a commonsense, not a
hypertechnical, fashion.” Sloan, 303 Wis. 2d 438, ¶23 (citation omitted). As the
State asserts, the “affidavit did not need to specifically declare that the images
were definitively child pornography or child erotica for a court to conclude that a
reasonable inference existed that the images were child pornography.” A simple
bathtub photograph taken by a parent, without more information, would not satisfy
the probable cause standard. However, here, the images were not merely bathtub
photographs taken by a parent. As described, the images depicted minors posed or
staged to visibly display their intimate parts to the viewer.
¶27 Even if one or more of the images were not child pornography, the
warrant-issuing judge could reasonably infer from the search warrant affidavit that
Schye possessed actual child pornography at his home or on his electronic devices
given: (1) the agent’s training and experience with Internet crimes against
children and child pornography investigations as part of the DCI and the ICAC
Task Force; (2) the fact that the images were sent to the ICAC Task Force by
NCMEC, which had received the images from Pinterest and Microsoft; (3) the
agent’s knowledge that individuals who obtain sexual gratification from child
pornography, “may collect sexually explicit or suggestive materials relating to
children,” including child pornography; (4) the agent’s descriptions of the images,
which included descriptions of a “posed” child in the nude and a “staged” image
13
No. 2021AP2094-CR
of a nude child (the images also depicted the intimate parts of children, see WIS.
STAT. § 939.22(19)); (5) the fact that Schye had two adult children who, therefore,
were unlikely to be the children depicted in the images; (6) the fact that the IP
address identified as the source of the images to Pinterest and Microsoft was
associated with Schye; and (7) Schye’s previous admission to being sexually
attracted to children.
¶28 Schye asserts that the images do not support the warrant-issuing
judge’s probable cause determination simply because they were forwarded to the
ICAC Task Force from NCMEC. According to Schye, “NCMEC does not view
reported images or conduct any investigation into whether the images are actually
child pornography.”
¶29 “Review of the sufficiency of an affidavit necessarily focuses on
personal and observational reliability of the informant.” Silverstein, 378 Wis. 2d
42, ¶14. We have previously stated that cybertips reported to NCMEC from
Internet service providers are inherently reliable because such companies (like
Pinterest and Microsoft) are required “under federal mandate to report suspected
child abuse to NCMEC.” See id., ¶19; 18 U.S.C. § 2258A. Here, the images were
not anonymously sent to the ICAC Task Force. The images were flagged and
reported as cybertips by Pinterest and Microsoft. Therefore, while NCMEC may
not have actually reviewed the images, Pinterest and Microsoft reviewed the
images and determined that they were required to submit the images pursuant to
§ 2258A. These facts described in the search warrant affidavit added to the
probable cause analysis in favor of the State.
¶30 Schye also argues that his 2007 statement about being sexually
attracted to children “does not strengthen the probable cause analysis.” However,
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No. 2021AP2094-CR
“[i]f old information in a warrant affidavit contributes to an inference that
probable cause exists at the time of the application for the warrant, the age of the
information” does not preclude a conclusion that the affidavit establishes probable
cause. State v. Multaler, 2002 WI 35, ¶36, 252 Wis. 2d 54, 643 N.W.2d 437.
Importantly, a sexual attraction to children “is of a protracted and continuous
nature” and, therefore, in the context of determining whether probable cause
existed to issue a search warrant, “the passage of time diminishes in significance.”
See State v. Schaefer, 2003 WI App 164, ¶19, 266 Wis. 2d 719, 668 N.W.2d 760(citation omitted). As such, Schye’s 2007 admission to being attracted to children
added to the probable cause analysis in favor of the State.
¶31 Lastly, Schye asserts that the search warrant was not supported by
probable cause because the warrant-issuing judge did not view the actual images
described in the search warrant affidavit. Schye’s only citation to supporting
authority on this point is Griesbach, which, again, did not hold that a
warrant-issuing judge is required to view images in order to find that probable
cause exists for the issuance of a warrant. Nor is Griesbach binding on this court.
See Mechtel, 176 Wis. 2d at 94. Therefore, we reject Schye’s assertions and
conclude that the warrant-issuing judge was not required to view the actual images
described in the search warrant affidavit and that the affidavit’s descriptions of the
images added to the warrant-issuing judge’s probable cause analysis.
II. Franks/Mann
¶32 Schye next contends that the circuit court should have granted his
second motion to suppress because the agent “provided false information by
claiming that ‘suspected’ child pornography images were in fact child
pornography.” According to Schye, the agent’s statement was false because “the
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No. 2021AP2094-CR
described images actually depict mere nudity, not sexually explicit conduct by an
underage person.” Schye also asserts that the agent’s description of Images 2
and 3 as being “staged” recklessly distorted the truth because the images are
“clearly designed to be artistic.” He also argues that the agent “omitted material
facts” when he described the images in the search warrant affidavit. Specifically,
Schye contends that the agent failed to state that there was an “unnatural focus” on
the children’s intimate parts in any of the three images.
¶33 We first clarify the standard of review we apply to a circuit court’s
denial of a defendant’s Franks/Mann motion because the parties disagree about
which standard we should use in this case.
When challenging the veracity of statements in support of a
search warrant, the defendant must first make a substantial
preliminary showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit and that the
allegedly false statement is necessary to the finding of
probable cause.
….
If the court concludes that the defendant has made the
substantial preliminary showing, then the defendant is
entitled to a hearing at which the defendant must then
prove, by a preponderance of the evidence, that the
challenged statement is false, that it was made intentionally
or with reckless disregard for the truth, and that absent the
challenged statement the affidavit does not provide
probable cause.
State v. Anderson, 138 Wis. 2d 451, 462, 406 N.W.2d 398 (1987); see also
Franks, 438 U.S. at 155-56.
¶34 “The Franks rule was extended in [Mann], to include omissions
from a warrant affidavit if the omissions are the equivalent of deliberate
falsehoods or reckless disregard for the truth.” Jones, 257 Wis. 2d 319, ¶25
16
No. 2021AP2094-CR
(citing Mann, 123 Wis. 2d at 385-90). “For an omitted fact to be the equivalent of
‘a deliberate falsehood or a reckless disregard for the truth,’ it must be an
undisputed fact that is critical to an impartial judge’s fair determination of
probable cause.” Mann, 123 Wis. 2d at 388 (citation omitted).
¶35 If a circuit court denies a Franks/Mann motion without an
evidentiary hearing, we review that decision de novo. State v. Manuel, 213
Wis. 2d 308, 315, 570 N.W.2d 601 (Ct. App. 1997). Conversely, if a court denies
a Franks/Mann motion following a hearing, we apply a mixed standard of review.
See State v. Hogan, 2015 WI 76, ¶32, 364 Wis. 2d 167, 868 N.W.2d 124.
¶36 Here, it is unclear under which prong of the Franks/Mann test the
circuit court denied Schye’s motion. Although a hearing was held, the agent did
not testify. Instead, in making their arguments to the court, the parties relied upon
the agent’s statements made during an out-of-court meeting between the agent, the
State, and Schye’s defense attorney. Additionally, as Schye argues, the court did
not make any factual findings at the hearing. As such, we will assume without
deciding that we should apply a de novo standard of review as if the court did not
hold an evidentiary hearing on the motion.8 In doing so, we conclude that Schye
failed to make a substantial preliminary showing that the agent’s statements were
false or that he omitted information that was necessary to the finding of probable
cause. We do so because all three images could reasonably be interpreted as
depicting child pornography, as we described above. See supra ¶¶19-26.
8
Because we review the circuit court’s denial of Schye’s Franks/Mann motion de novo,
we need not address his argument that the court incorrectly applied deference to the
warrant-issuing judge in denying the motion.
17
No. 2021AP2094-CR
¶37 Even if one or more of the images did not depict child pornography,
“the allegedly false statement[s were not] necessary to the finding of probable
cause.” See Franks, 438 U.S. at 156. That is, even if the images were not child
pornography by definition, the affidavit still provided probable cause for the
warrant-issuing judge to sign the search warrant, as discussed above. See supra
¶¶27-31.
¶38 Finally, Schye argues that the agent failed to state in his search
warrant affidavit that “none of the images evidently matched the NCMEC
database of ‘known’ child pornography.” Schye cites no authority to demonstrate
that an affiant is required to state that the suspected child pornography does or
does not match the NCMEC database. His argument is undeveloped and
unsupported by legal authority. See State v. Pettit, 171 Wis. 2d 627, 646, 492
N.W.2d 633 (Ct. App. 1992).
¶39 And, at best, the addition of this statement, when considered with the
other information contained in the warrant affidavit, would not have affected the
warrant-issuing judge’s determination of probable cause. There was nothing in the
affidavit stating NCMEC had reviewed the images or determined that they
constituted child pornography. Thus, the failure to advise the warrant-issuing
judge that the images did not match those in NCMEC’s database of “known”
pornography was unimportant to the warrant-issuing judge.
By the Court.—Judgment affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
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