State v. Brian A. Plencner ( 2020 )

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.
October 28, 2020
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2019AP517-CR Cir. Ct. No. 2014CF1163
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
BRIAN A. PLENCNER,
DEFENDANT-APPELLANT.
APPEAL from a judgment and an order of the circuit court for
Racine County: MICHAEL J. PIONTEK, Judge. Affirmed.
Before Neubauer, C.J., Reilly, P.J., and Davis, J.
¶1 REILLY, P.J. Brian A. Plencner appeals from a judgment
convicting him of two counts of possession of child pornography and from an
order denying his postconviction motion. Plencner argues he was denied the
effective assistance of counsel, as his attorneys failed to challenge the search and
No. 2019AP517-CR
seizure of his property as unreasonable under the Fourth Amendment. Plencner
also argues that the circuit court erred in denying him a Machner1 hearing on his
postconviction motion. As Plencner fails to establish that his trial counsel was
ineffective, we affirm.
Background
¶2 Plencner came to the attention of law enforcement when his fifteen-
year-old stepdaughter reported that he sexually assaulted her. That investigation
was commenced by Brad Spiegelhoff with the Racine Police Department on
March 29, 2010.2 Plencner’s stepdaughter told police that she had also observed
Plencner “watching pornography on his computer and believed it may have been
child pornography.” Officers executed a search warrant the next day, seizing a
laptop computer, a computer tower, three computer hard drives, a digital camera, a
cellphone, a docking station, and zip disks. After a “preview revealed ‘apparent
images of child pornography,’” these items were sent to the Wisconsin
Department of Justice Division of Criminal Investigation (DCI) for further
analysis on April 8, 2010.
¶3 On April 14, 2010, Plencner’s then-attorney sent a letter to the
assistant district attorney requesting that his property be returned to him, to no
avail. On May 13, 2010, Spiegelhoff went to DCI and received a preview disk
from Plencner’s computer, reporting that DCI “stated that it would be weeks to
1
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979). A Machner
hearing addresses a defendant’s ineffective assistance of counsel claim.
2
Plencner was ultimately charged with second-degree sexual assault of an unconscious
victim in case No. 2010CF464 and pled no contest in August 2010. The circuit court placed
Plencner on probation for eight years with ten months’ condition time.
2
No. 2019AP517-CR
months before they were able to get a full evidentiary look at the items brought to
DCI.”3
¶4 In August 2011, after completing his condition time in case
No. 2010CF464, Plencner made another request by e-mail to Spiegelhoff to have
the seized items returned.4 Spiegelhoff responded that “[t]hey are still up there [at
DCI] and if the [district attorney] tells us to turn them over, then I guess we will
have to go get them. Otherwise, DCI is still processing them. It takes over a year
to get through it all.”
¶5 Two years later, on September 9, 2013, DCI informed Spiegelhoff
that a preview revealed child pornography on Plencner’s computer and requested
that Spiegelhoff procure a new warrant “under the circumstances.”5 Spiegelhoff
consulted with the district attorney’s office, who advised him to “seek another
warrant to continue the final exam of the evidence,” and submitted a new search
warrant affidavit, stating “almost the exact same thing that was contained in the
original warrant … back in 2010” and also that the computer specialist had “just
started working” on the case after it was assigned “to at least two other specialists
3
The State filed an other-acts motion to admit evidence of images from the computer in
case No. 2010CF464, but the case did not go to trial.
4
Plencner never requested the return of his property pursuant to WIS. STAT. § 968.20,
which provides in part that “[a]ny person claiming the right to possession of property seized
pursuant to a search warrant or seized without a search warrant … may apply for its return to the
circuit court for the county in which the property was seized or where the search warrant was
returned.” Sec. 968.20(1). He argues, however, that that fact should not influence our analysis as
this court explained in State v. Gant, 2015 WI App 83, ¶14 n.4, 365 Wis. 2d 510, 872 N.W.2d
137, that “we do not hold, impliedly or otherwise, that Gant’s only avenue to retrieve his property
is found in § 968.20(1).”
5
DCI also told Spiegelhoff that “the case went through several specialists in its time it
was at the Madison DCI office” and that “several of the specialists that received this case retired
or went to a different job shortly after, and never did the actual review.”
3
No. 2019AP517-CR
who left DCI.” The new warrant was issued by Judge Gerald Ptacek on
September 24, 2013, and DCI thereafter informed the investigating officer that he
located child pornography on one of Plencner’s hard drives on December 11,
2013.
¶6 Plencner was charged with five counts of possession of child
pornography. Trial counsel filed two motions to dismiss the case. The first
arguing that the “delay in the commencement” of criminal proceedings and the
staleness of the warrant violated Plencner’s constitutional rights.6 At the motion
hearing, the circuit court expressed its concern under the circumstances “[f]rom a
fairness standpoint.” It explained that “it seems totally unfair to have a defendant
charged with a sexual assault back in 2010, be sentenced on that, and I’m
assuming … that the Court considered something about what was on the
computer, because there was [an other] acts request during the pendency of that
action which referred to child pornography.” The court withheld a ruling on the
motion, concluding that it could not find actual prejudice required to determine
6
Plencner’s motion to dismiss was brought “on the grounds that the State’s precharging
delay violated the rights guaranteed by the 4th, 5th, 6th, and 14th Amendments to the United
States Constitution; article I, sections 7, 8, and 11 of the Wisconsin Constitution; and State v.
Wilson, 149 Wis. 2d 878, 904-05, 440 N.W.2d 534 (1989).” Wilson involved a “sixteen-year
delay between the date of the alleged offense and the filing of the criminal complaint” and
whether that delay “violated the defendant’s right to due process.” Wilson, 149 Wis. 2d at 884.
Our supreme court explained that “[w]here a defendant seeks to avoid prosecution based upon
prosecutorial delay, it is clear that it must be shown that the defendant has suffered actual
prejudice arising from the delay and that the delay arose from an improper motive or purpose
such as to gain a tactical advantage over the accused.” Id. at 904. There, the court assumed
without deciding that the defendant was actually prejudiced by the delay, but concluded that the
delay was not the result of an improper motive or purpose as the delay was a result of insufficient
evidence. Id. at 905-06. Trial counsel, in this case, argued that the State knew of the alleged
child pornography “at the time of the initial offense”—the sexual assault—and that “[t]his
information implies an improper motive” and Plencner would be “unfairly prejudiced by this
delay” as “the court was already informed about the alleged possession, and now the issue will be
considered again for sentencing purposes.”
4
No. 2019AP517-CR
that a delay in charging was unconstitutional, but asked counsel to “revisit that
issue.” Counsel filed a second motion to dismiss, arguing that Plencner suffered
actual prejudice from the delay, “specifically through the disjointed chain of
custody of the evidence,” and, again, that the information contained in the 2013
warrant was stale. The circuit court denied the motion as it found no prejudice.7
¶7 Plencner pled no contest to two counts of possession of child
pornography. He was sentenced to three years’ initial confinement and two years’
extended supervision on each count, to be served consecutively.8 Plencner filed a
postconviction motion, arguing that “trial counsel rendered constitutionally
ineffective assistance by failing to pursue suppression of the evidence based on the
length of time that the police held [Plencner’s] computer.” The circuit court
denied the motion without a hearing, stating that counsel’s prior motions
“contained essentially the same arguments” as presented in the postconviction
motion.9 Plencner appeals.
7
At that hearing, the State addressed the circuit court’s previous suggestion that the child
pornography had been considered in case No. 2010CF464, noting that there was no agreement by
the State that it would not issue charges on the child pornography, the child pornography was not
mentioned in the PSI, it was only mentioned by the State in passing at sentencing, and it was not
referenced by the sentencing court.
8
Plencner was represented by new counsel at his sentencing hearing. Although Plencner
argues that both trial counsel and sentencing counsel were ineffective, his argument is the same
for each. For ease of reading, we will simply refer to “trial counsel” throughout.
9
Plencner filed a supplemental motion for postconviction relief, seeking twelve days of
sentence credit and reconsideration of his original postconviction motion. The court denied
reconsideration but granted the motion for sentence credit.
5
No. 2019AP517-CR
Standard of Review
¶8 Plencner argues that his trial counsel was ineffective for failing to
move to suppress the evidence of child pornography found on his computer and
that it was error for the court to have denied him a Machner hearing on his
ineffective assistance of counsel claim.
¶9 Plencner is not automatically entitled to a Machner hearing on his
postconviction motion. “A hearing on a postconviction motion is required only
when the movant states sufficient material facts that, if true, would entitle the
defendant to relief.” State v. Allen, 2004 WI 106, ¶14, 274 Wis. 2d 568, 682
N.W.2d 433. Whether a motion raises sufficient facts is a question of law we
review de novo. Id., ¶9. “[I]f the motion does not raise facts sufficient to entitle
the movant to relief, or presents only conclusory allegations, or if the record
conclusively demonstrates that the defendant is not entitled to relief, the circuit
court has the discretion to grant or deny a hearing.” Id. We review the court’s
decision for an erroneous exercise of discretion. Id. Thus, in order for Plencner to
be entitled to a Machner hearing on his motion, he must state sufficient material
facts demonstrating that he received ineffective assistance of counsel.
¶10 The standard by which we review a claim of ineffective assistance of
counsel is well known and often repeated: the defendant must prove that
counsel’s performance was deficient and that the deficient performance prejudiced
his or her defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v.
Thiel, 2003 WI 111, ¶¶18-20, 264 Wis. 2d 571, 665 N.W.2d 305. Both deficient
performance and prejudice present a mixed question of fact and law. Thiel, 264
Wis. 2d 571, ¶21. We uphold the circuit court’s findings of fact unless clearly
erroneous. Id. “Whether counsel’s performance satisfies the constitutional
6
No. 2019AP517-CR
standard for ineffective assistance of counsel is a question of law, which we
review de novo.” Id.¶11 To establish deficient performance, the defendant must demonstrate
that counsel’s “acts or omissions were outside the wide range of professionally
competent assistance” and were “errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Strickland, 466 U.S. at 687, 690. “Judicial scrutiny of counsel’s performance
must be highly deferential,” and “a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance.” Id. at 689. “Counsel need not be perfect, indeed not even very good,
to be constitutionally adequate.” Thiel, 264 Wis. 2d 571, ¶19. Importantly,
counsel is not deficient for failing to object and “argue a point of law that is
unclear.” State v. Maloney, 2005 WI 74, ¶¶23, 26, 281 Wis. 2d 595, 698 N.W.2d
583 (quoting State v. Thayer, 2001 WI App 51, ¶14, 241 Wis. 2d 417, 626
N.W.2d 811). To establish prejudice, the defendant must demonstrate that
counsel’s errors were “of such magnitude that there is a reasonable probability
that, absent the error, ‘the result of the proceeding would have been different.’”
State v. Erickson, 227 Wis. 2d 758, 769, 596 N.W.2d 749 (1999) (quoting
Strickland, 466 U.S. at 694). We need not address both prongs of the test if the
defendant fails to prove one. See Strickland, 466 U.S. at 697.
Discussion
¶12 The posture of this case is integral to the result we reach on appeal.
The crux of Plencner’s argument is that trial counsel raised the wrong claims
before the circuit court. Trial counsel’s motion to dismiss argued that the State’s
delay in charging Plencner violated his due process rights and that the information
7
No. 2019AP517-CR
supporting the 2013 warrant was stale. Plencner now argues that counsel should
have filed a motion to suppress the evidence, as the duration of the seizure of his
computer was unreasonable under the Fourth Amendment. For the reasons that
follow, we disagree that Plencner’s trial counsel performed deficiently.
¶13 In support of his position that trial counsel should have sought
suppression of the child pornography evidence, Plencner cites to two United States
Supreme Court decisions, United States v. Place, 462 U.S. 696 (1983), and
Segura v. United States, 468 U.S. 796 (1984). These cases, he argues, stand for
the proposition that law enforcement must diligently pursue its investigation and
that the duration of a seizure is relevant to assessing the reasonableness of the
seizure. In Place, law enforcement detained the defendant at the airport and
seized the defendant’s luggage for ninety minutes while waiting for a narcotics
detection dog to do a “sniff test.” Place, 462 U.S. at 699. The dog reacted
positively to one of the bags, but agents retained the luggage all weekend and
obtained a search warrant on Monday morning. Id. The Court concluded that
although the Fourth Amendment allows the temporary detention of personal
luggage for a “sniff test” based on reasonable suspicion, the ninety-minute seizure
of the luggage “on less than probable cause” was unreasonable under the Fourth
Amendment. Id. at 697-98, 709-10.
¶14 In Segura, agents had probable cause to believe residents of an
apartment were dealing drugs, and agents entered and remained in the apartment
“throughout the night and into the next day” until a search warrant was obtained.
Segura, 468 U.S. at 799-801, 812. The court applied the independent source
doctrine, finding that the unlawful entry—unlawful as officers lacked a warrant or
exigent circumstances—“did not contribute in any way to discovery of the
evidence seized under the warrant.” Id. at 815. The Court also held that the
8
No. 2019AP517-CR
nineteen-hour delay in securing the warrant was not unreasonable under the
circumstances. Id. at 812-13.
¶15 Plencner also identifies United States v. Burgard, 675 F.3d 1029,
1033 (7th Cir. 2012), calling it “instructive” for its Fourth Amendment analysis.
There, the issue was whether a “six-day delay in securing a warrant render[ed] the
seizure of Burgard’s phone unreasonable for purposes of the Fourth Amendment.”
Id. at 1031. The court explained that “[t]here is unfortunately no bright line past
which a delay becomes unreasonable. Instead, the Supreme Court has dictated
that courts must assess the reasonableness of a seizure by weighing ‘the nature and
quality of the intrusion on the individual’s Fourth Amendment interests against the
importance of the governmental interests alleged to justify the intrusion.’” Id. at
1033 (quoting Place, 462 U.S. at 703). The court determined that the six-day
delay was not unreasonable. While acknowledging that the case contained “police
imperfection,” the court concluded the “delay was not the result of complete
abdication of his work or failure to ‘see any urgency.’” Id. at 1034 (citation
omitted).
¶16 And finally, Plencner cites to this court’s decision in State v. Gant,
2015 WI App 83, ¶¶4, 14, 365 Wis. 2d 510, 872 N.W.2d 137, where we assumed
without deciding that a ten-month delay in securing a warrant after seizing a
computer made the seizure unlawful. Police were called to Gant’s home due to
the death of his wife. Id., ¶2. The death was thought to be a suicide, but police
procedures required any apparent suicide to be handled as a homicide. Id., ¶¶2-3.
Police collected evidence at the scene, including three computers. Id., ¶3. After
his wife’s death was officially ruled a suicide, Gant twice requested his property
be returned, but it remained at the Police Administration Building. Id., ¶¶3-4.
Ultimately, as a result of charges being filed against Gant for child sex crimes and
9
No. 2019AP517-CR
the discovery of child pornography on computer disks found at Gant’s home, the
investigating officer applied for a search warrant for the computers ten months
after they were seized. Id., ¶¶5-7. Gant filed an unsuccessful motion to suppress
the evidence and pled guilty to ten counts of child pornography. Id., ¶10. This
court concluded that the motion to suppress was properly denied as, although the
ten-month delay in applying for the warrant was unlawful, the independent source
and the attenuation doctrines applied to allow admission of the evidence. Id.,
¶¶16-21.
¶17 The cases Plencner presents are not on point. None of the cases he
relies on address the constitutional ramifications of a delay in searching an item of
personal property, specifically a computer or computer components, seized
pursuant to a valid warrant. Instead, each of the cases identified by Plencner
involve a seizure, either based on reasonable suspicion or probable cause, and a
resulting delay in obtaining a necessary warrant. Plencner has not identified any
controlling authority in support of a motion to suppress based on the factual
scenario presented before us, arguing only that it is “hardly novel that the
reasonableness of a seizure under the Fourth Amendment includes consideration
of the duration of the seizure.” As the State argues, there is no controlling
authority in Wisconsin applicable under these circumstances. Thus, the State
argues that Plencner’s claim for suppression is based on unclear or unsettled law
and that trial counsel cannot be faulted for failing to advance it.
¶18 The unsettled nature of the issue in this case is clear as Plencer and
the State both advocate for a different test. Plencner argues that the balancing test
from Place should apply. That test requires the court to consider the
reasonableness of the seizure by “balance[ing] the nature and quality of the
intrusion on the individual’s Fourth Amendment interests against the importance
10
No. 2019AP517-CR
of the governmental interests alleged to justify the intrusion.” Place, 462 U.S. at
703; see also Segura, 468 U.S. at 812 (“[A] seizure reasonable at its inception
because based upon probable cause may become unreasonable as a result of its
duration or for other reasons.”). The State, in contrast, argues that the Place test is
not applicable where law enforcement delays executing a search of a computer
seized pursuant to a valid warrant. Instead, the State advocates for the analysis
used by courts in other jurisdictions, which focuses on whether law enforcement’s
delay in searching rendered the probable cause supporting the warrant stale.
¶19 In United States v. Jarman, 847 F.3d 259, 263, 266 (5th Cir. 2017),
a child pornography case involving seizure of hard drives and a computer, the
defendant argued that the court erred in refusing to grant suppression for violating
the Fourth Amendment by taking twenty-three months to complete a search of the
data it seized. According to the United States Fifth Circuit Court of Appeals,
courts addressing this issue have “consistently ‘permitted some delay in the
execution of search warrants involving computers because of the complexity of
the search’ and they often restrict their ‘analysis of the delay in executing …
warrants [to] consider[ing] only whether the delay rendered the warrants stale.’”
Id. at 266 (alterations in original) (citing United States v. Brewer, 588 F.3d 1165,
1173 (8th Cir. 2009); United States v. Syphers, 426 F.3d 461, 469 (1st Cir. 2005)).
Although the court noted that Jarman had not argued that the delay caused the
warrant to become stale, it found that “‘[n]umerous cases hold that a delay of
several months’ or even years ‘between the seizure of electronic evidence and the
completion of the government’s review of [it] … is reasonable’ and does not
11
No. 2019AP517-CR
render the warrant stale, especially in child-pornography cases.”10 Jarman, 847
F.3d at 267 & n.3 (alternations in original; collecting cases).
¶20 Here, because this case comes before us on an ineffective assistance
of counsel claim, we need not reach the issue of what standard we should apply. It
is sufficient for us to conclude that the issue raised in this case is unsettled or
unclear. As our supreme court explained, “[c]ounsel’s failure to raise [a] novel
argument does not render his [or her] performance constitutionally ineffective.”
State v. Lemberger, 2017 WI 39, ¶18, 374 Wis. 2d 617, 893 N.W.2d 232 (first and
second alterations in original; citation omitted). “While the Constitution
guarantees criminal defendants a competent attorney, it ‘does not [ensure] that
defense counsel will recognize and raise every conceivable constitutional claim,’”
and “failure to raise arguments that require the resolution of unsettled legal
questions generally does not render a lawyer’s services ‘outside the wide range of
10
In the context of child pornography cases, the question of staleness has been called
“unique.” United States v. Raymonda, 780 F.3d 105, 114 (2d Cir. 2015) (citation omitted). This
is because “collectors and distributors of child pornography value their sexually explicit materials
highly, ‘rarely if ever’ dispose of such material, and store it ‘for long periods’ in a secure place,
typically in their homes.” United States v. Richardson, 607 F.3d 357, 370 (4th Cir. 2010)
(citation omitted; collecting cases); United States v. Gourde, 440 F.3d 1065, 1072 (9th Cir. 2006)
(“Collectors act like ‘pack rats’ because they have difficulty obtaining images of child
pornography. As such, they are inclined to download and keep such images for a long period of
time, and they ‘rarely, if ever, dispose of their sexually explicit materials.’”); see also United
States v. Carroll, 750 F.3d 700, 704-05 (7th Cir. 2014) (collecting cases); State v. Gralinski,
2007 WI App 233, ¶¶30-31, 306 Wis. 2d 101, 743 N.W.2d 448 (discussing that the warrant
“affidavit provided ‘that individuals who are involved with child pornography are unlikely to ever
voluntarily dispose of the images they possess, as those images are viewed as prized and valuable
materials’”). Further, because the evidence is contained in a digital format, the files remain for a
long time and can sometimes be recovered even after being deleted. See Richardson, 607 F.3d at
370-71; see also United States v. Seiver, 692 F.3d 774, 775-78 (7th Cir. 2012) (“‘Staleness’ is
highly relevant to the legality of a search for a perishable or consumable object, like cocaine, but
rarely relevant when it is a computer file.”).
12
No. 2019AP517-CR
professionally competent assistance’ sufficient to satisfy the Sixth Amendment.”
Id. (citations omitted).
¶21 Under the circumstances of this case, it is clear that counsel did not
perform deficiently. Trial counsel did not fail to bring a claim challenging the
delay in searching Plencner’s computer. Trial counsel launched an active assault
against the continuation of this case based on violations of Plencner’s
constitutional rights and also argued in both motions that the 2013 warrant was
stale. The motion to dismiss included a Fourth Amendment claim, see supra note
6, and while an argument was not developed, it demonstrates at a minimum that
counsel made a choice as to what to argue among alternatives. Trial counsel did
not fail in her duty and did not perform deficiently. Regardless of the type of
motion trial counsel brought, the challenge was the same: the delay in searching
Plencner’s computer violated his Fourth, Fifth, Sixth, and Fourteenth Amendment
rights. Given our duty to review ineffective assistance of counsel claims under a
“highly deferential” standard and “indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance,” trial
counsel did not perform deficiently. See Strickland, 466 U.S. at 689.
¶22 Alternatively, even if we were to conclude that the law in this area is
not unsettled, we cannot say that Plencner would succeed on the merits. If, as the
State argues, the standard we are to apply is whether the delay in searching
rendered the warrant stale, trial counsel cannot be found ineffective as she
advanced a staleness challenge to the 2013 warrant in the motions to dismiss. The
13
No. 2019AP517-CR
circuit court held that the probable cause supporting the warrant was not stale.11
Plencner does not challenge that conclusion on appeal. Plencner never argued
before the circuit court or this court that either warrant was invalid for a lack of
probable cause. The delay in analyzing the computer did not impact the probable
cause determination. On the day the evidence was seized from Plencner’s home, a
“preview revealed ‘apparent images of child pornography.’” The computer was
stored at DCI in the custody of law enforcement for the entire duration. Due to the
nature of the evidence being electronic data, the evidence was as probable to be
found in 2010 as it was in 2013.
¶23 If, as Plencner argues, the Place balancing test applies, we agree
with the State that Plencner has not sufficiently established that the test would
resolve in his favor. The test in Place indicates that we must balance “the nature
and quality of the intrusion on the individual’s Fourth Amendment interests
against the importance of the governmental interests alleged to justify the
intrusion” to determine whether the seizure was reasonable. Place, 462 U.S. at
703. Plencner clearly has a possessory interest in his computers and hard drives.
In considering the strength of his interest, we note that Plencner asked for his
11
Our supreme court explained it State v. Multaler, 2002 WI 35, ¶¶37-38, 252 Wis. 2d
54, 643 N.W.2d 437:
The probable cause determination in the face of a staleness
challenge depends upon the nature of the underlying
circumstances, whether the activity is of a protracted or
continuous nature, the nature of the criminal activity under
investigation, and the nature of what is being sought. State v.
Ehnert, 160 Wis. 2d 464, 469-70, 466 N.W.2d 237 (Ct. App.
1991).
“Even old information can support probable cause.” Gralinski, 306 Wis. 2d 101, ¶27; see also
State v. Moley, 171 Wis. 2d 207, 212-14, 490 N.W.2d 764 (Ct. App. 1992) (“The allegedly stale
information does not necessarily lead to stale probable cause.”).
14
No. 2019AP517-CR
property back twice and was denied, suggesting his interest, and the resulting
intrusion, was significant. Cf. United States v. Stabile, 633 F.3d 219, 235-36 (3d
Cir. 2011) (“[D]efendants who ‘never sought return of the property’ cannot argue
that delay adversely affected Fourth Amendment rights.” (citation omitted)).
¶24 The State argues, however, that Plencner’s possessory interests were
“reduced” due to his conviction in case No. 2010CF464, which left him confined
for ten months, followed by eight years of probation and conditions of probation
prohibiting him from “owning or using a computer or any electronic equipment
which has the capability to access the Internet without prior agent approval.” We
agree that Plencner’s incarceration and conditions of probation are factors to be
weighed. See Segura, 468 U.S. at 812 (noting that “the proprietors of the
apartment were in the custody of the officers throughout the period in question” in
determining that a delay in obtaining a warrant was reasonable); United States v.
Schaffer, No. 13-183, 2017 U.S. Dist. LEXIS 26257 at *10-11 (D.N.J. Feb. 24,
2017) (“[A]ny possessory interest Defendant had in the electronic devices was
greatly reduced by the fact that he has been incarcerated ever since the execution
of the … search warrant.”).
¶25 In contrast, the government’s interest in this case was substantial.
There is no question that the investigation and prevention of the exploitation of
children is of the upmost importance. See State v. Bruckner, 151 Wis. 2d 833,
853, 447 N.W.2d 376 (Ct. App. 1989) (“Wisconsin has a significant interest in
restricting the proliferation of child pornography.”); see also New York v. Ferber,
458 U.S. 747, 756 (1982) (“The prevention of sexual exploitation and abuse of
children constitutes a government objective of surpassing importance.”). Thus,
law enforcement’s interest in holding Plencner’s property until it could be
properly analyzed for child pornography was significant.
15
No. 2019AP517-CR
¶26 There are other factors to consider as well. Traditionally, computer
searches have been given substantial leeway due to the complexity and volume of
the analysis. See, e.g., Syphers, 426 F.3d at 469 (collecting cases). There is also
no indication that the delay in searching was a result of bad faith on the part of law
enforcement. See Segura, 468 U.S. at 812; United States v. Metter, 860 F. Supp.
2d 205, 216 (E.D.N.Y. 2012). Based on the information supplied by the DCI
analyst and included in the affidavit for the 2013 warrant, the delay resulted from
employee turnover—and likely the resulting lack of resources—at DCI, and the
delay appears to have been inadvertent and not the result of bad faith or “complete
abdication of [the officer’s] work or failure to ‘see any urgency.’” See Burgard,
675 F.3d at 1034 (citation omitted).
¶27 Given the factual circumstances in this case, we cannot conclude that
Plencner’s possessory interests in his computers and hard drives were outweighed
by the State’s significant interest in preserving the evidence. To be clear, we agree
with the State’s assessment that the delay between the warrant-based seizure of
Plencner’s electronics and the ultimate search of the devices “was far from ideal.”
Given the delay in this case, law enforcement responded appropriately in securing
a new warrant from a neutral magistrate, and the DCI analyst reasonably relied on
the 2013 warrant in conducting his investigation.12
12
The State also argues that even if Plencner’s Fourth Amendment claim had merit, the
good faith exception to the exclusionary rule would apply in this case, barring suppression of the
evidence. As we decide this case on different grounds, we need not address the application of the
good faith exception. See Patrick Fur Farm, Inc. v. United Vaccines, Inc., 2005 WI App 190,
¶8 n.1, 286 Wis. 2d 774, 703 N.W.2d 707 (we decide cases on the narrowest possible grounds).
16
No. 2019AP517-CR
Conclusion
¶28 For the forgoing reasons, we conclude that any motion to suppress
filed in this case would have either been meritless or based on an unsettled issue of
law, and, accordingly, trial counsel was not constitutionally deficient for failing to
file the motion. As we conclude that as a matter of law trial counsel did not
perform deficiently, Plencner was not entitled to a Machner hearing on his
motion.
By the Court.—Judgment and order affirmed.
Not recommended for publication in the official reports.
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