State v. Silverstein, Appeal No. 2016AP1464-CR.
| Decision Date | 01 August 2017 |
| Docket Number | Appeal No. 2016AP1464-CR. |
| Citation | 2017 WI App 64,378 Wis.2d 42,902 N.W.2d 550 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Samuel SILVERSTEIN, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the briefs of Matthew S. Pinix of Law Office of Matthew S. Pinix, LLC, of Milwaukee.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Brad D. Schimel, attorney general, and Tiffany M. Winter, assistant attorney general.
Before Brennan, P.J., Brash, and Dugan, JJ.
¶1 Samuel Silverstein appeals from a judgment of conviction, entered on his guilty plea, for three counts of possession of child pornography. Silverstein first argues that the trial court erred in denying his motion to suppress the evidence recovered from his computer after the search of his home pursuant to a warrant. He contends that the affidavit for the search warrant failed to state probable cause because it was based on "the uncorroborated tip of an anonymous informant." The informant was Tumblr.com ("Tumblr"), an electronic service provider ("ESP") required by federal law to report suspected child pornography to the National Center for Missing and Exploited Children ("NCMEC"), which in turn provided the information to the police.
¶2 We conclude, based on Wisconsin case law regarding citizen informants found in State v. Paszek , 50 Wis. 2d 619, 630, 184 N.W.2d 836 (1971), and State v. Kerr , 181 Wis. 2d 372, 381, 511 N.W.2d 586 (1994), that a tip from an ESP is properly viewed as one from an identified citizen informant, not an anonymous informant, which therefore establishes the personal reliability requirement in our case law. Additionally, the affidavit here also shows sufficient indicia of observational reliability of the ESP. Therefore, applying the "great deference" we pay to a determination of probable cause, see State v. Anderson , 138 Wis. 2d 451, 469, 406 N.W.2d 398 (1987), we conclude that the warrant-issuing magistrate "had a substantial basis for concluding that a search would uncover evidence of wrongdoing." See id. Accordingly, we uphold the determination.
¶3 Silverstein also raises a constitutional challenge to his sentence. He argues that WIS. STAT. § 939.617 (2015-16)1 violated due process requirements of fair notice because it failed to provide clear guidance for those who enforce and apply the law and created uncertainty about whether he would be subject to a mandatory minimum three-year sentence or could instead receive a lesser sentence. In State v. Holcomb , 2016 WI App 70, 371 Wis. 2d 647, 886 N.W.2d 100,2 this court interpreted § 939.617 and concluded that the statute's language was "plain and unambiguous" and required a mandatory minimum sentence for all defendants more than four years older than the child victims. Id. , ¶15. This court concluded that "[t]he only reasonable construction" of the statute requires the imposition of a mandatory minimum sentence. Id. , ¶11. We find Holcomb 's holding dispositive of the due process fair notice issue.
¶4 We reject Silverstein's arguments and affirm.
¶5 This case has a fact pattern common in internet child pornography cases. A private company providing internet services discovers images of suspected child pornography in a user's account and then, pursuant to federal law,3 forwards information about the images and the user's account to NCMEC. NCMEC is directed by federal law to serve as a clearinghouse for such tips and as a liaison to law enforcement.4 As NCMEC describes its role in the report generated in this case, "When a Reporting ESP voluntarily reports an IP [Internet Protocol] address for the ‘User or Person Being Reported,’ NCMEC Systems will geographically resolve the IP address via a publicly-available online search." In other words, NCMEC identifies where the IP address identified in the ESP's tip is located. Then, pursuant to federal law, NCMEC sends both the original tip and its geographic information to relevant federal and state law enforcement agencies. Law enforcement agencies then investigate and obtain search warrants, and may make arrests. That was the process followed here as set forth in the affidavit for the search warrant.
¶7 In a page from the NCMEC "CyberTipline Report" that was attached to the affidavit, the "[s]ubmitter" is identified as:
¶8 According to the affidavit for the warrant, NCMEC reported that the Tumblr tip identified specific file names for nine still images and a video depicting child pornography. After receiving the information from Tumblr, NCMEC added the state, city, zip code, area code, and internet service provider for the IP address associated with the nine still images and one video. On July 9, 2015, NCMEC sent the information in two separate tip reports to the Bayside Police Department.
¶9 The warrant affidavit, signed by Detective Bryan Bichler of the Glendale Police Department and attached to eleven pages from the NCMEC reports, further states that through subpoenas and search warrants, Officer Ryan Bowe of the Bayside Police Department determined that the subscriber using the identified IP address was Sam Silverstein of 6898 N. Seville Ave. in Glendale. A search warrant was issued on Detective Bichler's affidavit, and Silverstein's house was searched.
¶10 Police found a flash drive containing videos ranging in length from one minute to twenty-three minutes. The videos portrayed females estimated to be four to fourteen years old engaged in sexual activity; seven of the videos depicted sex acts involving a female child and an adult male.7 Silverstein admitted the drive belonged to him, waived his rights, and made statements to police acknowledging that he possessed the images "for his own purposes" and that he "may have" posted screen captures from the videos to his Tumblr account. The complaint explains that one video contained a picture that matched the third image in the cyber tip, and a second video contained two of the still images (images numbered four and five) reported in the cyber tip.
¶11 Based on his possession of ten videos found on the drive, Silverstein was charged with ten counts of possession of child pornography, a Class D felony. Silverstein challenges here, as he did below, the search warrant application on the grounds that it lacked probable cause due to the insufficiency of the tip from Tumblr through NCMEC to the police. Here a circuit court judge8 signed the search warrant, approving the application. Silverstein challenged the search warrant, and the recovery of the computer and images, with a motion to suppress before the circuit court but was unsuccessful.
¶12 After the trial court denied Silverstein's motion to suppress, he pled guilty, pursuant to a plea agreement, to three counts and the remaining seven were dismissed and read in. He now appeals the conviction raising again the constitutional challenge to the search warrant's sufficiency and adding another, a due process challenge to the application of the minimum mandatory sentence requirements of WIS. STAT. § 939.617 to his sentence.
I. We uphold the determination that the affidavit stated probable cause to issue a search warrant.
¶13 A court reviewing a challenge to probable cause for the issuance of a search warrant "examines the totality of the circumstances presented to the warrant-issuing commissioner to determine whether the warrant-issuing commissioner had a substantial basis for concluding that there was a fair probability that a search of the specified premises would uncover evidence of wrongdoing." State v. Romero , 2009 WI 32, ¶3, 317 Wis. 2d 12, 765 N.W.2d 756. This is a totality of the evidence test. Id. "We 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." State v. Higginbotham , 162 Wis. 2d 978, 989, 471 N.W.2d 24 (1991). The deferential standard of review is " ‘appropriate to further the Fourth Amendment's strong preference for searches conducted pursuant to a warrant.’ " State v. DeSmidt , 155 Wis. 2d 119, 133, 454 N.W.2d 780 (1990) (quoting Massachusetts v. Upton , 466 U.S. 727, 733, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984) ). "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." Kerr , 181 Wis. 2d at 379, 511 N.W.2d 586. On review, we are confined to the record that was before the warrant-issuing commissioner. See id. at 378, 511 N.W.2d 586.
¶14 Review of the sufficiency of an affidavit necessarily focuses on personal and observational reliability of the informant. "In examining whether probable cause existed, we first consider the ‘veracity’ and ‘basis of knowledge’ of persons supplying the hearsay information." Id . at 381, 511 N.W.2d 586. See also Illinois v. Gates , 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The test is different for identified citizen informants and anonymous police informants. " ‘[W]hen an average citizen tenders information to the police, the police should be permitted to assume that they are dealing with a...
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