State v. Baric

384 Wis.2d 359

919 N.W.2d 221

2018 WI App 63

STATE of Wisconsin, Plaintiff-Respondent,

v.Ronald Lee BARIC, Defendant-Appellant.

Appeal No. 2017AP185-CR

Court of Appeals of Wisconsin.

Submitted on Briefs December 11, 2017

Filed September 18, 2018

On behalf of the defendant-appellant, the cause was submitted on the briefs of John Miller Carroll of John Miller Carroll Law Office, Appleton.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Brad D. Schimel, attorney general, and Scott E. Rosenow, assistant attorney general.

Before Stark, P.J., Hruz and Seidl, JJ.

SEIDL, J.

¶ 1 Ronald Baric appeals a judgment entered following his no-contest pleas, convicting him of two counts of possession of child pornography, contrary to WIS. STAT. § 948.12(1m) (2015-16).¹ Baric contends the circuit court erred by denying his motions to suppress evidence of child pornography seized from his computers and hard drives. Specifically, Baric contends the evidence should have been suppressed because: (1) the police conducted an illegal, warrantless search when they viewed files he offered for download on a peer-to-peer (P2P) file sharing network; and (2) he was coerced into consenting to a subsequent search of his computer devices. We conclude that Baric had no reasonable expectation of privacy in files he offered for download on a P2P file sharing network and that he voluntarily consented to the search of his computer devices. Thus, we affirm.

BACKGROUND

¶ 2 In October 2014, Shawano County Detective Gordon Kowaleski discovered evidence that a computer located in Wisconsin contained ten files of child pornography. Kowaleski located the evidence by using a software program called Child Protection System (CPS) to conduct an automated search of P2P file sharing networks for known files of child pornography.

¶ 3 P2P file sharing is a means by which computer users share digital files with other users around the world. The only requirements to access a P2P file sharing network are that a user have an internet connection and P2P software.² In this case, Baric used the P2P software program eMule to connect to the P2P file sharing network eDonkey. In other words, Baric logged on to the eDonkey network by running eMule software.

¶ 4 In addition to having P2P software, a user must have an internet connection in order to connect to a P2P network. This requires the user to make his or her internet protocol (IP) address available, because without doing so, he or she cannot connect to other users on the network to share files. An IP address is a "unique address that identifies a device on the Internet."³

¶ 5 When a file is shared on a P2P network, it is assigned a unique digital signature, known as a hash value. A hash value assigned to a file remains constant, even if the file name is changed. When a P2P user selects a file to download, the P2P software searches the P2P network for all users that have shared a file with the corresponding hash value. The P2P software then connects to those users to download the file. Law enforcement has compiled a list of hash values assigned to files of known child pornography. By using this list, they are able to search a P2P network and identify users who are sharing files of child pornography.

¶ 6 The CPS software that Kowaleski employed in his October 2014 search conducted an automated search of files on P2P networks, including eDonkey, that users had made publicly available for download. One particular IP address that Kowaleski’s search identified as sharing files with hash values matching known files of child pornography was located in Wisconsin.

¶ 7 Accordingly, Kowaleski served a subpoena on Charter Communications, the internet service provider for the captured IP address, and found that the registered subscriber for that particular IP address was John Schultz, located in Hortonville. Kowaleski provided Schultz’s address to the Wisconsin Department of Justice, and Special Agent Jed Roffers took over the investigation. Roffers determined that Schultz shared his residence with several individuals, including Baric, and that Baric was well-versed with computers. He also learned that Susan Schultz, John’s wife and Baric’s sister, ran an in-home daycare at the residence.

¶ 8 In February 2015, Roffers and Special Agent Chad Racine went to Schultz’s home to interview its residents. They decided to first focus on Baric because of his familiarity with computers. They approached the house at approximately 8:00 p.m., both dressed in plain clothes. Susan let them into the home, and Roffers and Racine identified themselves as law enforcement officers. Roffers asked if he could speak with Baric, who was downstairs in his bedroom, so Susan asked Baric if he would come upstairs to speak with the agents. Once Baric came upstairs, Roffers and Racine began to question Baric about his computer use. Susan initially remained in the room and participated intermittently in the conversation.

¶ 9 Baric told the agents that he was twenty-seven years old and had a degree in computer science.

He rated his knowledge of computers, on a scale of one-to-ten "with 10 being Bill Gates," as an eight. Roffers asked Baric if he knew what P2P file sharing was, and Baric told him he did. Baric then admitted to illegally downloading music. Roffers told Baric that he did not investigate illegal music downloads, and that his investigations focused on the exploitation of children on the internet. Roffers asked Baric if he would allow a forensic analyst to look at his laptop. Baric initially said he would allow the inspection, if Roffers thought one had to be performed. Roffers responded that the decision to allow the inspection was "completely up to" Baric. Baric responded, "I would rather not, no."

¶ 10 Roffers then told Baric he thought there might be concerning files on the laptop, especially given that Susan ran a daycare in the house. Baric said that he had "an idea" what Roffers was talking about. At that point, Roffers asked if Baric wanted to continue their conversation in private. Baric said he did, and Roffers and Racine continued the interview with just Baric present. Roffers told Baric he was not under arrest and he was not in custody, but that Roffers wanted to talk to him. Roffers then explicitly told Baric he was investigating child pornography, and he asked Baric if there was a possibility he may have viewed any child pornography. Baric told Roffers he may have viewed some pornography with "teenagers ... like 16 and up." Baric went on to admit he may have seen pornography involving children as young as fourteen or fifteen.

¶ 11 Roffers again told Baric that he was especially concerned about his internet activity because there were often children present in the house with Baric. Baric said he only had viewed the child pornography out of curiosity, but he would never "act on it at all." He then said he had viewed "pre-teen" child pornography and it disturbed him. Roffers asked if Baric’s computer may have those kinds of files on it, and Baric said that he did not think so because he usually deletes those files that disturb him. Roffers told Baric he thought that, at this point, Baric knew what the right thing to do was. Baric said he did, and it was "[c]ooperating as much as I can."

¶ 12 After Roffers agreed with Baric that it was in his best interest to be cooperative, Baric told him "I know it’s wrong ... I’m just scared I guess." Racine said he understood, but Baric had to take responsibility for his mistakes. Baric again said he knew "it’s wrong," and he "want[ed] to do what I can to cooperate." Roffers asked if Baric would take the agents down to see his bedroom, and Baric agreed to do so.

¶ 13 While Baric took Roffers downstairs to his bedroom, Racine retrieved a consent form, which Baric eventually read. The form indicated that Baric had the right to refuse to consent to any search and that if he did consent, anything found could be used against him in criminal proceedings. Baric asked if the agents would take his computer with them if he consented to the search. Roffers said they would not take anything with them unless they found something concerning during an initial, on-site preview. Baric signed the form, and the agents took two computers and three hard drives outside the house. A computer forensic analyst that had been waiting there conducted an on-site preview on the devices, and she discovered several videos and images of child pornography.

¶ 14 The State charged Baric with ten counts of possession of child pornography. Baric filed a motion to suppress, arguing that he did not voluntarily consent to the search of his computer devices. The circuit court held an evidentiary hearing, at which Roffers, Baric and Susan testified. The court denied Baric’s motion in a written order, finding that the "gentle questioning" by Roffers and Racine did not exceed Baric’s ability to resist and that there was "no coercion." Therefore, the court concluded Baric’s consent was voluntary and constitutionally valid.

¶ 15 Baric then filed a second motion to suppress. Baric argued in this motion that Kowaleski performed an illegal search when he located and viewed the files that Baric made publicly available on the eDonkey P2P file sharing network. After a hearing, the circuit court denied the motion in an oral decision, concluding there is no reasonable expectation of privacy in files shared on the internet and, therefore, no search occurred within the meaning of the Fourth Amendment.

¶ 16 Pursuant to a plea agreement, Baric pled no-contest to two counts of possession of child pornography. The remaining counts were dismissed but read in for sentencing. The circuit court imposed concurrent sentences consisting of three years’ initial confinement and four years’ extended supervision on both counts. Baric now appeals, arguing that the circuit court erred by denying his suppression motions.

DISCUSSION

A. P2P file sharing

¶ 17 Baric first...