United States v. Schenck, 20-2353

• Decision Date: 02 July 2021
• Docket Number: No. 20-2353,20-2353
• Citation: 3 F.4th 943
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jeremy SCHENCK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

3 F.4th 943

UNITED STATES of America, Plaintiff-Appellee,

v.Jeremy SCHENCK, Defendant-Appellant.

No. 20-2353

United States Court of Appeals, Seventh Circuit.

Submitted April 1, 2021

Decided July 2, 2021

Rehearing Denied August 13, 2021

Julie Suzanne Pfluger, Attorney, Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Robert T. Ruth, Attorney, Madison, WI, for Defendant-Appellant.

Before Manion, Rovner, and St. Eve, Circuit Judges.

Manion, Circuit Judge.

Jeremy Schenck produced child pornography. He moved to suppress the evidence, arguing the search warrant was not supported by probable cause because the underlying affidavit did not identify how the affiant knew a few particular pieces of information. The district judge agreed with the magistrate judge's recommendation and denied suppression. Schenck pleaded guilty to one count of violating 18 U.S.C. § 2251(a), conditioned on reserving his right to appeal. The district judge sentenced him to 240 months in prison. Schenck appeals the denial of suppression. But we agree with the district judge that there is nothing to criticize in the magistrate judge's report and recommendation. The affidavit, read as a whole with common sense, established a reasonable probability that the search would produce evidence of child pornography.

I.

Jeremy "Emily" Schenck: Defendant-Appellant. Born March 21, 1995. Biological father of ABC.¹ Former partner of Christina Davis.

Christina Davis: Biological mother of ABC. Former partner of Schenck.

ABC: Daughter of Davis and Schenck. Born in 2016.

Melissa Schenck: Jeremy Schenck's mother.

Detective Paul Bauman: Madison police detective. Signed the affidavit supporting the warrant.

Officer Joseph Buccellato: Madison police officer. Investigated Davis's report.

Officer Amber Flores: Madison police officer. Interviewed Melissa Schenck.

Melissa Garecht: Social worker. Investigated Davis's report.

Katelyn Schneibel: Schenck's friend in Williston, North Dakota. Told Davis that Schenck sent images to her.

Detective Alexius Enget: Williston police detective. Interviewed Schneibel.

II.

Jeremy Schenck and Christina Davis have a young biological child together: ABC. Schenck took sexually explicit photos of ABC and sent them to his friend Schneibel on the internet.

Schneibel told Davis, who told Melissa Schenck, who told Detective Bauman. Bauman then spoke with Davis directly. At Bauman's arrangement, Detective Enget spoke with Schneibel directly. During that interview, Schneibel described the images she received from Jeremy Schenck. Enget gave an audio recording of her interview of Schneibel to Bauman. Bauman then applied to a Wisconsin state judge for a warrant to search Jeremy Schenck's apartment for child pornography. Bauman wrote and submitted an affidavit explaining why there was probable cause to support the search. This case centers on Bauman's affidavit.

The affidavit contains seven numbered paragraphs describing factual details Bauman learned during his investigation.

Based on this affidavit, the Wisconsin state judge issued a search warrant. Police executed the warrant on February 20, 2019. They seized Schenck's computer and iPhone. They found four pornographic images of ABC when she was about 1.5 to 2 years old.

The federal government charged Schenck with three counts of production of child pornography and one count of distribution. Schenck moved to suppress all evidence discovered during the search. He argued the affidavit lacked probable cause because it failed to demonstrate ABC was a child, and it failed to demonstrate the images were sexually explicit.

The magistrate judge issued a thorough report recommending denial of the motion. The district judge adopted the report and wrote: "when read as a whole from a common-sense perspective, [the affidavit] establishes a reasonable probability that the search would yield evidence of child pornography."

Schenck pleaded guilty to one count of production of child pornography, conditioned on preserving his right to appeal. The district judge sentenced him to 240 months in prison. Schenck appeals the denial of suppression.

III.

We review a district judge's denial of a motion to suppress under a dual standard: we review legal conclusions de novo but we review findings of fact for clear error. United States v. Hammond , 996 F.3d 374, 383 (7th Cir. 2021). We give great deference to the judge issuing the warrant. United States v. Woodfork , 999 F.3d 511, 516 (7th Cir. 2021). We uphold a finding of probable cause "so long as the issuing judge had a substantial basis to conclude that the search was reasonably likely to uncover evidence of wrongdoing ... ." United States v. Aljabari , 626 F.3d 940, 944 (7th Cir. 2010).

Probable cause is not a high standard. It simply means there is a reasonable likelihood evidence of wrongdoing will be found. Probable cause exists when "the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found ... ." Ornelas v. United States , 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Probable cause requires "only a probability or substantial chance of criminal activity, not an actual showing of such activity." Illinois v. Gates , 462 U.S. 213, 243 n.13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Probable cause is a flexible, common-sense, totality-of-the-circumstances standard.

Schenck challenges the affidavit. He argues it failed to establish a reasonable basis to think ABC was a child. This is significant because if ABC were an adult at the relevant times, then the photos of her would not be criminal (or at least they would not be child pornography).

Bauman included a 2016 date of birth for ABC in paragraph 2 of his affidavit. This would make her less than 3 years old at the relevant times. But Schenck argues the affidavit's "glaring flaw" is that it never provides a source for its allegations about ABC's age. Schenck argues that paragraph 2, which lists the date of birth of ABC, "relies entirely on the conclusory statement of the affiant," Bauman. Schenck argues Bauman never explains how he knows ABC's birthdate.

It is true that mere conclusory statements will not suffice. United States v. Reddrick , 90 F.3d 1276, 1280 (7th Cir. 1996). And it is true that the affidavit is not overly detailed about how Bauman knows ABC is a child. Bauman lists her date of birth, but does not explicitly and separately cite his source for this particular piece of information.

But considering the totality of the circumstances, and applying common sense, we find it abundantly clear that there were very good reasons for the state judge to think ABC was a child at the relevant times. The magistrate judge and the district judge each performed a superb analysis demolishing Schenck's argument. For example, the magistrate judge noted that the warrant application showed Schenck had a juvenile case filed against him in 2011. So the oldest he could have been at that time in 2011 was 17. So for ABC to have been an adult in February 2019 when Bauman applied for the search warrant, Schenck would have had to have fathered her when he was a very young child himself:

For ABC to have been 18 years old in February 2019, Schenck would have had to have fathered her when he was six or seven years old. Common sense and a rudimentary knowledge of human reproductive biology lead to the conclusion that ABC must have been a minor at the time Det. Bauman applied for the challenged warrant.

(R. & R., A-8, p. 8.)

Also, the district judge correctly noted that a fair reading of the affidavit suggests that Bauman learned all the information in paragraph 2 from Buccellato. Paragraph 2 opens by referencing Buccellato and his involvement in this matter. Paragraph 2 explicitly references Buccellato as the source of the report that Garecht said Davis made allegations. And paragraph 2 explicitly references Buccellato as the source of the report of an interview with Davis about the allegations. Moreover, Bauman goes on in the following paragraphs to explain his investigation. Each of those paragraphs contains information Bauman received from a particular source. Paragraph 3 contains information from Davis. Paragraph 4 contains information from Flores, who interviewed Melissa Schenck. Paragraph 5 contains information from a further interview with Davis. Paragraph 6 contains information from Enget. Paragraph 7 contains information from the Wisconsin Circuit Court Access database. So the structure of paragraph 2 itself, which mirrors the structure of the other paragraphs, shows that Bauman's immediate source for ABC's date of birth was Buccellato. We have never required an application for a search warrant to have an explicit, separate citation for every piece of information in all circumstances.

But Schenck remains unsatisfied. He argues on appeal that even if Buccellato is the source of ABC's date of birth listed in paragraph 2, there is nothing in the affidavit about how Buccellato knows this information. It seems Schenck did not raise this argument properly below, but it also seems the government does not urge forfeiture. But we need not wade through an analysis of forfeiture and potential forfeiture of forfeiture. Nor need we weigh in on whether a reference to only Buccellato as the source would be enough. It is easier to note that paragraph 2 does reflect the ultimate source for ABC's date of birth: Christina Davis, ABC's mother. We agree with the magistrate judge: "Common sense suggests—and it is imminently reasonable to infer—that Davis provided the [birth date of ABC] to Garecht, who passed [that date] to Buccellato, who passed [it to] Bauman, who put [it] into his warrant application." (R. & R., A-8, p. 7.) Schenck does not question how Davis knows her daughter ABC's birthday. Besides, the affidavit need not prove the truth of its every assertion beyond a reasonable doubt. Probable cause does not even require proof by a...