ComputerForensicsDigest.com

Brief Summary: Defendant was convicted of second-degree sexual assault on a child, a 14-year-old runaway from Iowa. On appeal, defendant challenged the refusal of the trial court to suppress evidence found by police during a consensual search of his computer.

Facts: While investigating a fireworks complaint, Horicon police found Scott Unertl in the company of a young woman, whom police later identified as a 14-year-old runaway from Iowa. The police were also told that the runaway had been having sexually explicit computer exchanges with someone named "Scott" in Horicon. The police attempted to get a search warrant for his computer, but were unable to do so.

The Horicon police held Unertl for about 20 minutes until a more senior officer could question him. At that time, Unertl consented to a search of his apartment and computer. During the search of Unertl's computer, police discovered a sexually explicit photograph of a young woman with a teddy bear beside her. Unertl was arrested for possession of child pornography.

Subsequently, the Horicon police determined that Unertl was having a sexual relationship with the 14-year-old runaway, which led to the sexual assault charge.

At trial, Unertl moved to suppress the results of the search, arguing that he was not given his Miranda rights before consenting to the search, and that the photograph discovered by the police did not create probable cause for the possession of child pornography. The trial court rejected those arguments and denied Unertl's motion.

Issue(s): Whether the trial court erred in denying Unertl's motion to suppress.

Ruling: No, the trial court did not err.

Rationale: Under Wisconsin case law, evidence obtained from statements (or consent) made without Miranda warnings does not need to be excluded unless the violation of Miranda was intentional. The appeals court saw no evidence that police officers purposely did not give Miranda warnings in order to dupe defendant.

After reviewing the photo, the appeals court concluded that the discovered photo did give police probable cause to believe that defendant was in possession of child pornography. The court cited the woman's young appearance, the presence of the teddy bear, and her provocative pose as factors. The court also said that Unertl's contact with a 14-year-old runaway could reasonably have added to the conclusion that probable cause existed. The trial court did not err in denying Unertl's motion.