State v. Stryker
| Decision Date | 01 June 2022 |
| Docket Number | 2021AP692-CR |
| Parties | State of Wisconsin, Plaintiff-Respondent, v. Robert C. Stryker, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
APPEAL from a judgment and an order of the circuit court for Waukesha County No. 2014CF1068 RALPH M. RAMIREZ and JENNIFER R. DOROW, Judges. Affirmed.
Before Gundrum, P.J., Neubauer and Kornblum, 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 Robert C. Stryker appeals a judgment of conviction for one count of possession of child pornography. He also appeals an order denying his postconviction motion, in which he alleged that the circuit court erroneously denied his motion to suppress evidence discovered on his laptop computer by police after his wife allowed them to search it. He contends his wife did not have authority to consent to the search. He also contends that his trial counsel was constitutionally ineffective for failing to seek suppression of a document discovered on his laptop on the grounds that it was privileged under the social worker-patient privilege codified in Wis.Stat. § 905.04 (2019-20).[1] We conclude the circuit court properly denied Stryker's suppression motion and his postconviction motion. We affirm.
¶2 In August 2014, Stryker's neighbors reported to City of Waukesha Police that Stryker, then forty-one years old, had tried to kiss their sixteen-year-old daughter. Stryker's wife, AS, learned of this incident on August 27 and sent a text to Stryker telling him to take his belongings and leave their home. Stryker removed some personal property from their home but left a laptop computer that he used in the basement. Two days later, Detective Kenny Stucker went to the home to speak with AS.
¶3 AS told Stucker that Stryker had admitted to her in 2010 that he had an addiction to child pornography and that he had removed hard drives from his computer and smashed them after visiting a website monitored by the police. AS also told Stucker that Stryker had recently admitted to viewing child pornography within the past two years during a family counseling session the Strykers attended after AS filed for divorce in July 2014.
¶4 In response to a question from Stucker, AS indicated there were multiple computers in the home, including the laptop. The laptop was located in the children's play area of the basement. It was not in a locked container and was accessible to anyone in the home. According to AS, Stryker used the laptop and AS would sometimes help the children use it to watch Netflix. AS did not use the laptop except when helping the children with it or when she and Stryker would review their finances. She had her own computer but could have used the laptop at any time if she wanted. AS had "complete access" to any files on the laptop and there were no limitations imposed on her use of the laptop.
¶5 AS retrieved the laptop for Stucker from the basement and turned it on at his request. She did not have to use a password to get into the computer. Stucker then reviewed a form with AS, which she signed, authorizing him to take the computer, "forensically download" its contents, and search them. The form granted Stucker "permission … to conduct a complete search of [AS's] … premises, property, and buildings" and specifically identified the laptop, two computer hard drives, and another personal computer as items to be searched. It further gave Stucker permission to take from AS's home "any letters, papers, materials … or any other types of property or objects which they desire as evidence for criminal prosecution in the case or cases under investigation." Stucker took the laptop, personal computer, and hard drives and turned them over to Detective David Feyen to be searched.
¶6 Feyen made an image of the laptop's hard drive and loaded the image onto a "blank completely wiped hard drive which was identical in size." He then performed a forensic examination of the laptop and located sixty-four thumbcache images depicting potential child pornography including five pornographic images of prepubescent girls. Like the laptop itself, the images were not password protected, although they were "hidden" and could only be viewed with specialized software. When asked about his characterization of the thumbcache files as "hidden," Feyen explained that
¶7 Feyen also used the image copy of the hard drive to "back the computer up in time and find documents that had been previously deleted." One such document he located was a Microsoft Word document entitled "Inventory.doc" that required a password to open. At the suppression hearing, Feyen testified that the password to open the document "was passed on to me by [AS]." He stated that AS gave the police "a list of generic passwords used by the family for multiple things, and I was able to enter that password and bypass the pop-up box." He did not remember exactly when AS provided the password list, however, nor the officer to whom she provided it. Feyen testified that he did not use "password cracker" software to access the document.
¶8 The Inventory document contains descriptions of Stryker's "struggles with child pornography addiction," his efforts to seek treatment, attending support meetings, and obtain a sponsor. The file ends with the words At Stryker's sentencing hearing, his trial counsel stated that Stryker's therapist asked Stryker to prepare the document as part of his treatment process.
¶9 Stryker was charged with five counts of possession of child pornography based on the images found on the laptop.
¶10 Stryker's trial counsel moved to suppress the five images and the password-protected Inventory document on the grounds that AS did not have the authority to permit police to search the laptop.
¶11 The circuit court denied Stryker's motion at a hearing held on June 24, 2015.[2] After summarizing relevant portions of the testimony of AS and Stucker and Feyen, the court concluded that AS had consented to a forensic search of the entire laptop to locate child pornography. The court found that AS had "unfettered access" to the laptop after Stryker voluntarily left it at the home, that the children had previously used it, and that there had been "mutual use" and "joint control" of the laptop by Stryker and AS. Based on these factual findings, the court concluded that AS had authority to consent to a search of the laptop, that she did so voluntarily, and that the search was "specific to the allegations" of possession of child pornography that the police were investigating. The court did not make a specific finding about whether AS had actual or apparent authority.
¶12 Regarding the Inventory document, the circuit court found that although the document was the only password-protected file on the laptop, it was "protected by a family password, one known to [AS] and, therefore, not particularly protected under all of the circumstances." The court further found that AS provided an officer with list of common family passwords, one of which Feyen used to open the document. Based on these findings, the court concluded that AS had authority to consent to a search of the document as well.
¶13 After a new judge took over the case, Stryker filed a motion for reconsideration which was heard on December 18 2015.[3] Feyen testified a second time regarding the Inventory document at the hearing. He testified that he found the document while searching the laptop for files that had been previously deleted. He again reiterated that he did not use password cracking software to open the document. Feyen stated that when the computer asked for a password, he telephoned AS and asked about any passwords that were used in the home. He testified further that the password that opened the document "had something to do with the Brewers, as in the Milwaukee Brewers" but did not recall how many characters in length it was or the exact characters that comprised the password. Finally, Feyen confirmed that he did not use a "variation" of one of the family's passwords to open the document.
¶14 Stryker's counsel argued that the search for the Inventory document was unlawful because Stryker had used a password to limit access to the document and had deleted it from the laptop. Counsel also emphasized that AS did not know of the document's existence when she consented to the search and that Stryker had "almost exclusive access to" the laptop.
¶15 The circuit court denied the motion for reconsideration after concluding that AS had actual authority to consent to the search of the laptop and its files.[4] The court found that all members of the Stryker family had access to the laptop. The court again emphasized that a password supplied by AS had opened the Inventory document, not a variation of one of the family's passwords: "It's not that [Feyen] was told it has something to do with the Brewers, and then he added Brewers123 or Brewers123 with an exclamation point." AS had the ability to access anything on the laptop and thus the scope of her authority extended to all of its contents.
¶16 Stryker later pled guilty to one count of possession of child pornography.[5] After sentencing, Stryker filed a motion for postconviction relief asserting that...
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