State v. Drachenberg

998 N.W.2d 566

2023 WI App 61

STATE of Wisconsin, Plaintiff-Respondent,

v.John J. DRACHENBERG, Defendant-Appellant.^†

Appeal No. 2022AP2060-CR

Court of Appeals of Wisconsin.

Submitted on Briefs: May 11, 2023

Opinion Filed: October 12, 2023

APPEAL from a judgment of the circuit court for Wood County, Cir. Ct. No. 2021CF264: TODD P. WOLF, Judge. Affirmed.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Christina C. Starner, Green Bay.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of John D. Flynn, assistant attorney general, and Joshua L. Kaul, attorney general.

Before Blanchard, Graham, and Nashold, JJ.

BLANCHARD, J.

¶1 This appeal involves the meaning of "execute[ ]" in the statute that sets a five-day deadline for police to execute a search warrant. See Wis. Stat. § 968.15(1) (2020-21) ("A search warrant must be executed and returned not more than 5 days after the date of issuance."); see also § 968.15(2) ("Any search warrant not executed within the [five-day deadline] provided in [§ 968.15(1)] shall be void and shall be returned to the judge issuing it.").¹ John Drachenberg appeals the judgment of conviction that followed his guilty plea to one count of possession of child pornography. Drachenberg argues that the circuit court erred in denying his motion to suppress evidence based on what he contends was the failure of police to execute a search warrant within five days after a court issued the warrant to search his residence and seize digital devices there.

¶2 Drachenberg does not dispute that the search and seizures occurred within five days after the warrant was issued. Nor does he argue that the execution exceeded the scope of the warrant. But, under his interpretation of Wis. Stat. § 968.15(1), police violated the statute when they took the third of the following three steps: (1) submitting an affidavit for a search warrant, which the circuit court issued on the same day; (2) three days later, searching the designated places and seizing several digital devices, copying digital content stored on the devices, and taking both original and copied materials off-site in order to conduct forensic analysis that was authorized in the warrant; and (3) not until almost two months after the warrant was issued, completing the off-site forensic analysis.

[1] ¶3 We conclude that the circuit court properly denied the motion to suppress, because the deadline to execute a search warrant in Wis. Stat. § 968.15(1) applies to the search of the places, and seizure of the items, designated in a search warrant and does not apply to later, offsite analysis of those items that is also authorized in the warrant. In some cases, the later, off-site analysis of seized items can be challenged as unreasonably delayed under the Fourth Amendment. But here Drachenberg does not rely on the Fourth Amendment. Instead he argues only that the circuit court misinterpreted "executed" in § 968.15(1). Accordingly, we affirm.

BACKGROUND

¶4 Police submitted to the circuit court on January 29, 2021, an affidavit requesting a warrant authorizing a search of Drachenberg’s residence for designated items allegedly containing child pornography. See Wis. Stat. § 968.12(2) ("Warrant upon affidavit"). The detailed affidavit included the following allegations. An online platform provider passed information to law enforcement that included the internet protocol address of one platform user who allegedly streamed a video containing child pornography. Law enforcement determined that the user’s internet protocol address was associated with Drachenberg’s residence in Marshfield. The affidavit was based in part on the detective’s averred knowledge, training, and experience regarding the nature of how digital data is generally stored on various devices and more specifically how child pornography is transferred and possessed. The affidavit requested authority to search Drachenberg’s residence, as well as all of the associated buildings and vehicles owned or controlled by occupants of the residence. It further requested permission to "[s]eize and remove from the premises any computers, computer storage media and any other electronic device"—including, for example, cell phones and modems—and then, after the search had been completed, to forensically analyze the contents of the devices at off-site locations, ie., places other than the place of the search.

¶5 The circuit court issued the search warrant on the same day it was requested. The warrant described in detail the types of items that police were authorized to search for, and to seize, on the designated premises. It also specifically authorized the following: "the media … and data contained" in the seized devices "may be forensically analyzed at a law enforcement facility at a later date in order to examine the contents for contraband or other evidence." Similarly, the warrant authorized police to (1) "Obtain exact forensic copies of the [digital] contents of … any seized device … for the purpose of permitting and conducting a full or partial digital forensic analysis," and (2) "Conduct a forensic examination/analysis of the devices or the contents of the devices, using accepted digital forensic examination tools and techniques." Regarding both of these investigative steps, the warrant stated that "[t]he Court authorizes those items to be removed from the premises and analyzed at a later time for this purpose." (Bolding in original.)

¶6 On February 1, 2021, police searched the places designated in the warrant and seized numerous digital devices, including a desktop computer belonging to Drachenberg.

¶7 Also on February 1, police: observed some of the digital contents of devices that were seized; completed and filed with the circuit court a return and an inventory sheet listing the physical items seized during the search; and began "mirror imag[ing]" the hard drive of Drachen- berg’s computer.²

¶8 Drachenberg emphasizes, however, that the forensic analysis of the seized devices, which amounted to 14 terabytes (or 14 trillion bytes) of data, was not completed until March 29, 2021.³

¶9 The State filed a criminal complaint in April 2021, charging Drachenberg with seven counts of violating Wis. Stai. § 948.05(1)(b) ("Sexual exploitation of a child") and three counts of violating Wis. Stat, § 948.12(1m) ("Possession of child pornography").⁴ The charges were based on allegations that between May 1, 2020, and February 28, 2021, Drachenberg recorded and displayed, by streaming online, videos depicting children engaged in sexually explicit conduct, with knowledge of the character and content of the sexually explicit conduct involving the children. The complaint further alleged that police believed that approximately 272 image files and five video files found on his computer constitute child pornography.

¶10 Drachenberg moved to suppress the images and videos. Pertinent to this appeal, he argued that officers did not fully execute the warrant within five days after it was issued as required by Wis. Stat. § 968.15(1), because the forensic analysis of the digital devices authorized in the warrant was not completed until almost two months after the warrant was issued. Therefore, he argued, the warrant was "void" under § 968.15(2), and all evidence collected pursuant to the warrant must be suppressed. The circuit court denied Drachenberg’s motion to suppress, based on its conclusion that the search warrant was "executed" within the meaning of the statute within five days.

¶11 Following the circuit court’s denial of his suppression motion, Drachenberg pleaded no contest to one count of possession of child pornography in violation of Wis. Stat. § 948.12(1m). Drachenberg appeals, as he is permitted to do under these circumstances, following entry of the conviction based on his plea. See Wis. Stat. § 971.31(10).

DISCUSSION

¶12 To repeat, Wis. Stat. § 968.15(1) states, "A search warrant must be execut- ed and returned not more than 5 days after the date of issuance."⁵ Drachenberg argues that, under a plain-meaning interpretation of this sentence, police must complete within five days all tasks that the issuing judge has authorized in a search warrant, including the later, off-site forensic analysis of all seized items. Applied here, he contends, because the warrant includes the off-site forensic analysis in its description of what it authorizes police to do, all of that analysis had to be completed within five days. Because the analysis was not completed for nearly two months, the argument continues, the warrant was void and the circuit court should have suppressed all evidence produced through the analysis of his computer.

¶13 The State argues in pertinent part that, when Wis. Stat, § 968.15(1) is interpreted in context with closely related statutes, what must be executed within five days is limited to the following: all searching conducted in the places designated in the warrant and all seizures of physical items designated in the warrant that occur during that searching. Under this view, the time limitation does not apply to later, offsite testing and analysis of validly seized items, even when that testing and analysis is separately authorized by the warrant. As we explain further below, we agree with the State.⁶

¶14 Before beginning our analysis by summarizing pertinent legal standards, we emphasize that in this appeal Drachenberg relies solely on the five-day time limit in Wis. Stat. § 968.15(1). He does not allege a violation of his Fourth Amendment rights. Specifically, Drachenberg does not raise a constitutional argument that the manner or duration of the retention and analysis of the data found on his seized digital devices rendered the warrant’s execution unreasonable. See Dalia v. United States, 441 U.S. 238, 258, 99 S.Ct. 1682, 60 L.Ed.2d 177 (1979) ("[T]he manner in which a warrant is executed is subject to later judicial review as to its reasonableness."); ...