Nichols was charged with capturing images of nudity without consent and sexual assault. He argues the police didn’t have probable cause to seize his cell phone and therefore the images they found on it must be suppressed. He also asserts other-acts evidence was erroneously admitted at his trial. The court of appeals rejects both claims.
Nichols and B.B. were at the home of a mutual friend. Both ended up staying the night. B.B. told police she awoke to find Nichols lifting her clothing, touching her, and taking photographs with a cell phone. She pretended to sleep as he continued to touch her and eventually inserted his fingers into her vagina. (¶¶3-4).
Police interviewed Nichols, who admitted he was at the house that night but denied assaulting or taking pictures of B.B. He allowed the officer to examine his phone, unlocking it and showing his photo gallery, which contained three non-incriminating photos. But the officer then kept the phone and got a search warrant. A forensic analysis of the phone discovered pictures of B.B.’s breasts and vaginal area. (¶6).
Police need probable cause and exigent circumstances to seize a container that might contain evidence while they seek a warrant to search the container. State v. Carroll, 2010 WI 8, ¶¶26-27, 322 Wis. 2d 299, 778 N.W. 2d 1. Nichols doesn’t make a developed argument that there were no exigent circumstances (such as the danger the evidence might be destroyed if the container isn’t seized), but instead argues probable cause was lacking here. (¶15). The court of appeals disagrees:
¶18 Here, the officer knew that B.B. had accused Nichols of using his phone to take pictures of her unclothed body without her consent, and taking or possessing such pictures is a crime. See Wis. Stat. § 942.09(2)(am). Nichols himself corroborated some of the details in B.B.’s report, including the facts that he had been with B.B. and possessed his phone on the night of the alleged assault. And Nichols also confirmed that the phone he handed to the officer to search was the same phone that was with him that night. Based on the totality of circumstances known to the officer, we agree with the circuit court that there was probable cause to believe that Nichols’ phone contained evidence of a crime.
¶20 Nichols also appears to argue that because the officer did not find the incriminating photographs in his initial search of the phone, any probable cause that may have otherwise existed was dispelled. We disagree. Based on his training and experience, the officer knew that images on phones can be hidden or deleted, and also that such images can be recovered through forensic analysis. Further, Nichols had informed the officer that he was studying computer programming, and so the officer would have had particular reason to believe Nichols would be proficient at hiding or deleting images on his phone.
The other-acts evidence involved a sexual assault Nichols committed some 17 years earlier. As in this case, Nichols was staying overnight at a house with others when the victim awoke to find him touching her. The circuit court said this incident was admissible to prove identity. (¶26). Nichols’s challenge to this evidence focused on the second prong of the test under State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998), which is whether the evidence was relevant to the non-propensity purpose for which it is being admitted. (¶27). Even though Nichols did not mount a mistaken identity defense to speak of, the court of appeals holds the evidence satisfied both facets of relevance: evidence regarding identity would be of consequence to the determination of the trial; and the evidence (especially because of its similarity to the charged crimes) had probative value on the issue of identity. (¶¶28-34).
One judge (Kloppenburg) concurs, expressing concern that the other-acts rule has been “gutted” by the cases applying it (¶36 (quoted source omitted)) and that “as the case was actually presented at trial, identity was not raised as an issue, … and, therefore, the proffered proper purpose of identity became a thin stand-in for the improper purpose of propensity.” (¶40). The concurrence goes on to cite (¶42) Judge Nettesheim’s call from 25 years ago that courts should “stop paying lip service to [§ 904.04(2)] and Whitty [v. State, 34 Wis. 2d 278, 149 N.W.2d 557 (1967),] and, instead, recognize the law for what it really is. …‘Unless or until our supreme court reverses the direction of the law in this area, we should stop writing appellate opinions which pretend to honor Whitty but actually offend it.’” State v. Tabor, 191 Wis. 2d 482, 498, 529 N.W.2d 915 (Ct. App. 1995) (Nettesheim, J., concurring in part, dissenting in part) (quoted sources omitted).
Besides the fact no one should hold their breath hoping the supreme court reverses the direction of the law in this area, there is, perhaps, another thing the court of appeals could do: By all means stop paying lip service and pretending, and instead actually honor Whitty and § 904.04(2) and reverse convictions obtained in trials where evidence is admitted in violation of their mandates. Do that in enough cases, and even the supreme court won’t be able to handle all the petitions for review the state will be filing, and the direction of the law will begin to reverse. Perhaps. Maybe. It’s just a thought….