State v. Thor S. Lancial, 2022AP146-CR, 1/5/22, District 3 (not recommended for publication); case activity (including briefs)

A jury convicted Lancial of 10 counts of possession of child pornography. On appeal, he argued that (1) the State’s evidence was insufficient to support the conviction and (2) the circuit court erred in denying his motion to suppress evidence that the police seized during their search of his cell phone. The court of appeals reversed on the second point and held that the pornography had to be excluded on remand.

State’s evidence was sufficient. Under §948.12(1m), the State had to prove that Lancial knowingly possessed a recording that depicted a child engaged in sexually explicit conduct or in any way accessed the recording with the intent to view it. Lancial argued that the images at issue were in a cache file in his cell phone’s gallery application. A user could not access them while in the gallery application.

The court of appeals held that the State did not need to prove that it found accessible images on Lancial’s cell phone. It only had to prove that they were in an area over which he had control and that he intended to exercise control over them. Opinion, ¶¶20-21 (citing Wis JI-Criminal 2146A(2010)).

Furthermore,  a person knowingly possesses child porn when he pulls an image up and views it knowing that it contains child pornography. State v. Mercer, 2010 WI App 47, ¶31, 324 Wis. 2d 506, 782 N.W.2d 125. From the 10 images in the cache file, the jury could reasonably infer that Lancial accessed them at least twice–once when saving the images to the gallery application and once when clicking on the thumbnail images in the application. Opinion, ¶22.

The State’s Information alleged that Lancial knowingly possessed child pornography on or about July 9, 2019. But none of the State’s witnesses could say when images were added or deleted from the gallery application or when images were downloaded or accessed. The court of appeals held that the State was not required to show that Lancial possessed or accessed child pornography on a specific date. It had to show that the offense occurred on a date near the date alleged.  Opinion, ¶24 (citing Hess v. State, 174 Wis. 96, 99, 181 N.W. 725 (1921); WIS JI—CRIMINAL 255 (2000). The State’s evidence and Lancial’s admissions satisfied that requirement.

Search exceeded scope of warrant. Police requested a warrant to search phones found at the home of Lancial’s father. However, the court’s order authorized a search of “said premises, vehicles, and persons for said things.” “Said things” was defined as laptops, cell phones, tablets, etc. “Said things” did not include the digital data on those devices. Opinion, ¶35. The search of Lancial’s phone, therefore, exceeded the scope of the warrant. Opinion, ¶¶38-40, 46 (citing United States v. Ross, 456 U.S. 798, 820-21 (1982); State v. Andrews, 201 Wis. 2d 383, 389, 549 N.W.2d 210 (1996)).

Officer’s conduct required exclusion of evidence. The exclusionary rule applies when police conduct is sufficiently (a) deliberate that exclusion can meaningfully deter it, and (b) culpable that deterrence is worth the price paid by the justice system. State v. Burch, 2021 WI 68, ¶16, 398 Wis. 2d 1, 961 N.W.2d 314. The court of appeals called the officer’s lack of knowledge regarding the scope of the warrant “grossly negligent, if not reckless.” Opinion, ¶57. It said:

¶58  . . . Law enforcement can and should be deterred from ignoring the scope of a warrant. This concern is especially keen in circumstances, such as here, where law enforcement wants to search a cell phone, which is a device known to contain the most private and sensitive information of many individuals, see Riley, 573 U.S. at 376-97, 402, and where the scope can be easily discerned from the warrant’s simple and plain language.