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  • WisBar News
    October 14, 2015

    Court Upholds Child Porn Conviction Despite Extended Seizure of Computers

    Joe Forward

    Oct. 14, 2015 – A state appeals court has upheld a child pornography conviction, rejecting defendant David Gant's claim that police violated his constitutional rights by holding his computers in police inventory for 10 months after closing an investigation into his wife's death. 

    Gant pleaded guilty on 10 counts of possession of child pornography after losing his motion to suppress evidence found on his computers. He said police violated his Fourth Amendment rights by searching computers initially seized 10 months earlier in the non-related case.

    Gant had called police to his Milwaukee home in September 2010. He said he found his wife, Crystal, hanging by the neck from a basement beam, and moved her to a bed. The couple’s young daughter said Crystal had been using a computer before her death.

    Police collected three computers from the scene, noting that suicide notes or other evidence are often found on computers. Gant later signed a consent to search his property, except for his computers. The medical examiner later determined that Crystal’s death was a suicide.

    Gant twice requested his computers back but the police would not release them. In October 2010, Gant was charged with exposing his genitals to a child.

    In April 2011, an officer investigating that case learned from Gant’s brother that Gant admitted to keeping child pornography on his computer. The officer also learned that Gant’s computers were still in police possession. In July 2011, Gant was charged for first-degree sexual assault of a child. Around the same time, Gant’s mother-in-law called police to report that she found DVDs containing child pornography in Gant’s basement.

    Police then obtained a search warrant to inspect 17 DVDs and Gant’s computers. The search revealed hundreds of files containing child pornography.

    Gant filed a motion to suppress the evidence found on the DVDs and the computers. The motion was denied and Gant pled guilty to 10 counts of child pornography. He received 10 years in prison for each count, a total of 100 years in prison.

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    In State v. Gant, 2014AP1980-CR (Oct. 9, 2015), a three-judge panel for the District I Court of Appeals affirmed, rejecting Gant’s claim that police violated his Fourth Amendment rights.

    First, the panel ruled that police had probable cause to take the computers because police believed the computers could hold clues about how Gant’s wife may have died.

    “There was a fair probability that the computers contained evidence the police needed to determine if the death was a suicide, an assisted suicide, or a homicide,” wrote then-Appeals Court Judge Rebecca Bradley, recently appointed to the state supreme court. “Under the totality of the circumstances, it was reasonable for the police to seize the computers.”

    The panel also rejected Gant’s claim that his Fourth Amendment rights were violated, and the evidence should be suppressed, because police retained the seized computers for 10 months after his wife’s death was ruled a suicide.

    The panel assumed that retaining the computers that long was unlawful, but held that the “independent source” and “attenuation” doctrines applied to bar exclusion.

    That is, police obtained a search warrant based on an “independent” tip from Gant’s mother-in-law regarding the DVDs, and a tip from Gant’s brother, who said Gant admitted possessing child porn on his computers.

    The “attenuation” doctrine also applied to legitimate the search, the panel ruled, because of a “sufficient break in the causal chain between the illegal action and the lawful seizure (from the valid search warrant) such that the connection between the two purges any taint.”

    The panel found no indication that police held the computers hoping independent evidence of child pornography would be located. Detectives only realized those computers were still in inventory after receiving tips that they could contain evidence of child porn.

    “A valid search warrant was issued to conduct a search of the computers and police found child pornography on Gant’s computers,” Judge Bradley wrote. “We see nothing to suggest that police acted flagrantly.”

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