State v. Petrone, 89-1551-CR

Citation468 N.W.2d 676,161 Wis.2d 530
Decision Date06 May 1991
Docket NumberNo. 89-1551-CR,89-1551-CR
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Jerry W. PETRONE, Defendant-Appellant. d
CourtUnited States State Supreme Court of Wisconsin

James A. Walrath, argued, Shellow, Shellow & Glynn, S.C., on briefs, Milwaukee, for defendant-appellant.

Thomas J. Balistreri, Asst. Atty. Gen., argued, Donald J. Hanaway, Atty. Gen., on briefs, for plaintiff-respondent.

SHIRLEY S. ABRAHAMSON, Justice.

This is an appeal from a judgment of conviction entered by the circuit court for Walworth county, John R. Race, Circuit Judge, on a jury verdict finding the defendant guilty of three counts of sexual exploitation of children contrary to sec. 940.203(2), Stats.1987-88. 1 The court of appeals certified the case to this court. Section (Rule) 809.61, Stats.1989-90. The court sentenced the defendant to a term of four years' imprisonment with a concurrent term of six years' probation.

The defendant challenges his conviction and sentence on several grounds. First, the defendant challenges various aspects of the seizure of undeveloped photographic film from his home as a violation of the fourth amendment. Second, the defendant argues that his complaint and information failed to charge the required element of scienter. Third, the defendant challenges the jury instruction defining the word "lewd" in sec. 940.203(2). Last, the defendant argues that his presentence report contained inaccurate information and that he was denied a due process hearing to challenge the allegedly inaccurate information.

The court of appeals certified the following two issues: (1) "Does a search warrant which authorizes the seizure of '[a]ll ... film ... used in the taking ... of photographic pictures, involving nude and partially nude female juveniles' include within its scope unmarked and undeveloped rolls of film?" (2) "If a criminal complaint fails to allege requisite scienter, is that failure curable even if scienter is a constitutionally required element of the crime?" We answer both questions in the affirmative. We also reject the defendant's other challenges to the conviction and sentencing and affirm the judgment of conviction and sentence.

I.

The relevant facts of the case follow. On August 6, 1987, a fifteen-year-old female testified before Walworth county Circuit Judge James L. Carlson as part of a request by the state for two search warrants. The warrants were for the search of the defendant's Delavan home and his business, a tavern.

The juvenile testified that on July 29, 1987, she and two other female juveniles posed in costumes, swimsuits and in the nude while the defendant photographed them. Two adult women also participated in the photo session. The juvenile testified that during the photo session the defendant told her and the others to sit on the ground and put their knees up so that they would show parts of their bodies. According to the juvenile's testimony, the defendant used both a Polaroid and a 35 mm camera and told the subjects the photographs were to be used in a brochure for the club, meaning the defendant's tavern.

Search warrants were issued and executed on August 6, 1987, for both the defendant's home and tavern. 2 The search warrant for the defendant's home directed deputies to seize the following items:

Pink, strapless formal gown, 2-piece blue bathing suit, yellow sheet or slipcover, all camera, film, or photographic equipment used in the taking, processing and development of photographic pictures, involving nude and partially nude female juveniles.

Using the warrant, Walworth county deputies seized a number of items from the defendant's home, including 1,800 still photographs, videotapes, audiotapes, address books and photo albums. They also seized three unmarked film canisters containing undeveloped 35 mm film cartridges. The deputy seizing the film was unable to determine what kinds of photographs, if any, the rolls of film contained. The sheriff's department developed the film the day following the search and found that those rolls of film had been taken at the July 29 photo session. The developed pictures in slide form were presented as evidence at the defendant's trial.

A criminal complaint was issued on March 2, 1988, charging the defendant with three violations of sexual exploitation of children, that is, with photographing three juveniles while they were engaged in the lewd exhibition of their genital and pubic areas contrary to sec. 940.203(2), Stats.1987-88.

II.

We first address the defendant's challenges to the search and seizure. The warrant directed the deputies to search the house and seize, among other things, "all ... film ... used in the taking, processing and development of photographic pictures involving nude and partially nude female juveniles."

The defendant argues that the deputies acted outside the warrant when they seized and later developed unmarked 35 mm film. 3 The defendant argues that under either the terms of the warrant or the plain view exception to the warrant requirement, the deputies had to be able to determine during the search of the house that the film was used in the taking of photographic pictures involving nude or partially nude female juveniles. The defendant reasons that the canisters could not have been lawfully seized under the warrant because nothing linked the canisters to the photographs of the juveniles. The seizures were based, asserts the defendant, upon the mere hope that the 35 mm film, when developed, might generate evidence falling within the scope of the warrant. The defendant further contends that the process of developing the films was beyond the authority of the warrant.

The state, as one might expect, disagrees. The state asserts that deputies searching premises pursuant to a warrant for film used in taking illegal photographs may seize undeveloped film for developing and viewing to determine whether it contains the kind of photographs described in the warrant.

The court of appeals characterized this issue as one of first impression in Wisconsin and perhaps nationally. Neither the state nor the defendant cites any case from any jurisdiction involving the seizure of undeveloped film. The research of the court of appeals and this court was similarly unavailing.

To determine whether the undeveloped film falls within the scope of a warrant, we examine the words of the warrant, considering the purposes underlying the fourth amendment requirement of particularity. 2 LaFave, Search and Seizure § 4.6(a), p. 234 (2d ed. 1987). The fourth amendment requires that warrants "particularly describe the place to be searched, and the persons or things to be seized."

The fourth amendment's particularity requirement fulfills three objectives. It prevents general searches; it prevents the issuance of warrants on less than probable cause; it prevents the seizure of objects when the warrant describes different objects. 4 As we explain more fully below, the warrant in this case fulfills these objectives.

The particularity requirement is especially troublesome when an item to be seized--such as film--is a household item whose use is ordinarily legitimate. In this case, the investigation leading to the search warrant yielded few details specifically identifying the film to be seized. The only way to particularize the description of the film in this case to differentiate between film subject to seizure and film not subject to seizure was to describe the generic class of items, that is film, and set reasonable parameters for the search and seizure, as the warrant did, in terms of the criminal activities in which the film was used. The warrant in this case describes the film as involving nude and partially nude female juveniles. This particularity prevents the law enforcement officers from seizing film obviously unrelated to the unlawful activity described in the warrant.

The warrant in this case described the film to be seized with as much particularity and specificity as the circumstances and the nature of activity under investigation permitted. The juvenile who testified at the hearing to obtain the search warrant stated that a Polaroid and a 35 mm camera were used but did not describe the brand of the film or the camera. The warrant therefore could not describe the type of film or the number of rolls, whether the film had been developed or where the film might be located in the defendant's home, because this information was not available from the investigation when the warrant was obtained. 5

The warrant was specific enough in this case to prevent a general search, and the specificity in the warrant prevented issuance of the warrant on less than probable cause. The warrant was specific enough to prevent the seizure of objects not described in the warrant. The warrant enabled the searcher reasonably to ascertain and identify the thing to be seized. United States v. Betancourt, 734 F.2d 750, 754-55 (11th Cir.), cert. den. 469 U.S. 1021, 105 S.Ct. 440, 83 L.Ed.2d 365 (1984).

Even when the search warrant meets the particularity requirements the search must be conducted reasonably and appropriately limited to the scope permitted by the warrant. Whether an item seized is within the scope of a search warrant depends on the terms of the warrant and the nature of the items seized. Considering the words of the warrant in relation to the particularity requirement and the nature of the items to be seized, we conclude that the deputies acted within the scope of the warrant.

The warrant in this case expressly allowed seizure of film. To locate film of nude and partially nude female juveniles, the deputies were authorized to examine places where the film might have been kept. The deputies could open closets, chests and containers that could reasonably contain film. The deputies found the canisters of undeveloped film in the same room and in close proximity to Polaroid photos of nude female...

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