State v. Garrett A. German

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 24, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP78-CR Cir. Ct. No. 2016CF196

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

GARRETT A. GERMAN,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Chippewa County:
JAMES M. ISAACSON, Judge. Affirmed.

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

¶1 SEIDL, J. Garrett German appeals a judgment, entered upon his
no-contest pleas, convicting him of two counts of possession of child
No. 2018AP78-CR

pornography, contrary to WIS. STAT. § 948.12(1m) (2017-18).1 German contends
that the warrant issued for the search of his home was not supported by probable
cause because the affidavit upon which the warrant was based lacked the details
necessary for the warrant-issuing judge to distinguish German’s possession of
legal images of pornography from his possession of illegal child pornography.
Further, he contends that because law enforcement’s reliance on the issued warrant
was not in good faith, all evidence derived from the execution of the warrant must
be suppressed.

¶2 We assume, without deciding, that there was a lack of probable
cause to support the issuance of the search warrant. However, we conclude that
the good faith exception to the exclusionary rule applies because law enforcement
acted in objectively reasonable reliance on a warrant issued by a detached and
neutral magistrate.

¶3 We reach this conclusion, primarily, because at the time the search
warrant was issued no reasonably well-trained Wisconsin law enforcement officer
would have known that he or she had to provide a description of the images at
issue—beyond that of stating they appeared to constitute child pornography—in
order to show probable cause that the images constituted child pornography, as
defined by WIS. STAT. § 948.12. Indeed, no Wisconsin legal authority holds that
such a description is necessary, and there is a split amongst the federal circuit
courts of appeal that have addressed the issue. Consequently, we affirm.

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

2
No. 2018AP78-CR

BACKGROUND

¶4 In May 2015, Chippewa Falls Police Department investigator
Deborah Brettingen applied to the circuit court for a warrant authorizing a search
of “510 1/2 N. Bridge Street, City of Chippewa Falls, Chippewa County,
Wisconsin.”2 Brettingen’s search warrant affidavit contained the following
averments relevant to this appeal.

¶5 In January 2015, the National Center for Missing and Exploited
Children (NCMEC) referred three “CyberTips”—numbered 3593919, 3654072
and 3692234—to the Wisconsin Department of Justice.3 Special agent Matt Joy
investigated and generated a report for each of these CyberTips. The reports for
CyberTips 3593919 and 3692234 each indicated that a Facebook account linked to
German had uploaded an image that “appeared to depict child pornography.”4

2
We note that the search warrant application does not state that German resided at this
residence. However, German acknowledges in his brief-in-chief that the warrant application
sought to search “German’s home.”
3
“As provided by 42 U.S.C. § 5773(b)(1)(P)(i), NCMEC is funded in order to ‘operate a
cyber tipline to provide online users and electronic service providers an effective means of
reporting Internet-related child sexual exploitation in the areas of ... possession, manufacture, and
distribution of child pornography[.]’” State v. Silverstein, 2017 WI App 64, ¶5 n.4, 378 Wis. 2d
42, 902 N.W.2d 550. The typical NCMEC tip reporting process involves a “private
company providing [I]nternet services discover[ing] images of suspected child pornography in a
user’s account and then, pursuant to federal law, forward[ing] information about the images and
the user’s account to NCMEC.” Id., ¶5 (footnote omitted). Here, Facebook was the private
company that forwarded the information about the suspected images of child pornography and
German’s account to NCMEC.
4
On appeal, German does not dispute that he was, in fact, the Facebook user who
uploaded the images in question.

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No. 2018AP78-CR

These CyberTips also included the Internet Protocol (IP) address for the account
that uploaded the images.5

¶6 Joy subsequently submitted his reports to Eau Claire County
sheriff’s deputy Jeff Nocchi. Nocchi obtained a search warrant and discovered
that the physical address associated with the IP address provided in CyberTip
3692234 was “510 1/2 N Bridge St[reet] Chippewa Falls, WI 54729.”6 Nocchi
then submitted Joy’s reports, along with this physical address, to Brettingen.

¶7 Brettingen averred in the search warrant application that she “did
observe” the images corresponding to CyberTips 3593919 and 3692234 and that
each image “does appear to be an image of child pornography.” Although
Brettingen referenced Wisconsin’s possession of child pornography statute, WIS.
STAT. § 948.12, she did not provide a description of either image, nor otherwise
explain how the picture depicted “sexually explicit conduct” within the meaning
of that statute.7

¶8 The search warrant affidavit also included information about
Brettingen’s law enforcement qualifications. In particular, Brettingen averred that
she had been a police officer for over eighteen years and that she was “currently
assigned to the Sensitive Crimes Investigator position where her duties include

5
An IP address is a “unique address that identifies a device on the Internet.” State v.
Baric, 2018 WI App 63, ¶4, 384 Wis. 2d 359, 919 N.W.2d 221.
6
On appeal, German does not challenge the validity of the search warrant obtained by
deputy Nocchi.
7
We note that CyberTip 3654072 did not concern any images. Rather, it contained
“additional information” associated with German’s Facebook account, including a phone number,
birthday and email address.

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No. 2018AP78-CR

conducting child pornography investigations.” Brettingen also stated that she had
“received hundreds of hours of formal education and training in various aspects of
law enforcement; including theories, procedures, and practices associated with
criminal investigations and the application of state and federal statutes.” Finally,
she averred that she had “received approximately 64 hours of training in the
investigation of computer facilitated exploitation of children, and 23 hours of
training involving human trafficking and the commercial sexual exploitation of
children.”

¶9 The circuit court ultimately granted the application and issued a
search warrant. In executing the warrant, police recovered the images associated
with CyberTips 3593919 and 3692234, as well as ten additional images of child
pornography. The image associated with CyberTip 3593919 depicted a female
toddler standing in front of an adult male, with the male’s erect penis near the
toddler’s mouth. The image associated with CyberTip 3692234 depicted a male’s
erect penis ejaculating into the mouth of a young female child, who was
approximately five to seven years of age.

¶10 Federal officials subsequently filed an indictment in the United
States District Court for the Western District of Wisconsin, charging German with
two counts of unlawfully creating child pornography. German moved to quash the
search warrant and suppress all evidence derived from its execution. As grounds,
he argued that the warrant was not supported by probable cause.

¶11 The federal district court agreed with German, and it therefore
granted his motion. The court concluded that “under unambiguous Seventh
Circuit case law,” an affiant “must at least provide enough of a description for the
[warrant-issuing] court to determine if the image qualifies as child pornography as

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No. 2018AP78-CR

described by the Wisconsin Supreme Court in Petrone.”8 Further, the court
concluded that because the issuance of the search warrant constituted an
“inexplicable ignorance of established law,” the evidence recovered pursuant to
the execution of the warrant was not admissible under the good faith doctrine.

¶12 After the federal case against German was dismissed, the State filed
the criminal complaint underlying this appeal in Chippewa County. German then
filed a motion to suppress “all evidence seized … as a result of the illegal search
and seizure.” In support, he relied solely upon the federal district court’s opinion
and order.

¶13 At the hearing on German’s suppression motion, the circuit court
first addressed whether the warrant was lawfully issued. The court stated:

Given the decisions of the various federal circuit court of
appeals and the recent decisions of the 7th Circuit, I feel
that there is a persuasive argument that the magistrate
should either have a detailed description of the images or a
copy of the images themselves attached to the affidavit
supporting the request for the search warrant.

However, the case law in Wisconsin does not make such a
requirement necessary and, in fact, infers it is not a
necessity.

Rather than decide whether the warrant was lawfully issued, however, the court
decided to assume “for the purposes of [German’s] motion that the affidavit is
deficient.”

¶14 Accordingly, the circuit court proceeded to analyze whether the
“good-faith exception to the exclusionary rule should be applied here.” After
8
See State v. Petrone, 161 Wis. 2d 530, 468 N.W.2d 676 (1991), overruled on other
grounds by State v. Greve, 2004 WI 69, ¶31 n.7, 272 Wis. 2d 444, 681 N.W.2d 479.

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No. 2018AP78-CR

summarizing the applicable federal and state authority regarding the good faith
doctrine, the court stated:

Again, I believe that officers here in Wisconsin can rely on
Wisconsin law when they are analyzing a situation, and
there is no guidance to an officer based on Wisconsin law,
that there would be noncompliance with the constitutional
requirements, and if the officer were so inclined to look at
federal law, they would see that there’s a conflict between
the circuits that has not been resolved by the United States
Supreme Court.

Based upon the Wisconsin case law and a split among the
federal district court of appeals, I conclude that the
good-faith exception to the exclusionary rule should be
applied in this case.

I’m therefore denying the motion to suppress at this time.

¶15 German moved for reconsideration, arguing that the circuit court’s
initial decision was void because German filed his suppression motion before the
State filed its Information.9 See WIS. STAT. § 971.31(5)(b). In the alternative,
German argued that the court erred in its interpretation of the relevant case law
and urged the court to adopt the decision of the federal district court.

¶16 After a hearing, the circuit court concluded that German had not
provided the court with any new evidence, nor had he established that the court’s
original decision constituted a manifest error of law. Consequently, the court
denied the motion for reconsideration.

9
German does not renew this argument on appeal, and we therefore deem it abandoned.
See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 491, 588 N.W.2d 285 (Ct. App.
1998).

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No. 2018AP78-CR

¶17 German proceeded to plead no contest to two counts of possession of
child pornography. He now appeals the circuit court’s denial of his suppression
motion. See WIS. STAT. § 971.31(10).

STANDARD OF REVIEW

¶18 When reviewing a circuit court’s decision on a motion to suppress,
we apply a two-step standard of review. State v. Eason, 2001 WI 98, ¶9, 245
Wis. 2d 206, 629 N.W.2d 625. We will uphold the circuit court’s factual findings
unless they are clearly erroneous. Id. However, we independently review whether
those facts violate constitutional principles. Id.

DISCUSSION

¶19 German raises two arguments as to why the circuit court erred by
denying his motion to suppress. First, he argues that “the search warrant was not
supported by probable cause because the affidavit lacked the details necessary to
distinguish legal images from illegal child pornography.” Second, he argues that
the “State failed to meet its burden of proving that the good faith exception to the
exclusionary rule applied.” We address each argument in turn.

I. Sufficiency of affidavit

¶20 The Fourth Amendment to the United States Constitution and
article I, section 11 of the Wisconsin Constitution protect persons from
unreasonable searches and seizures and establish the manner in which warrants
shall issue. State v. Tate, 2014 WI 89, ¶27, 357 Wis. 2d 172, 849 N.W.2d 798.
As relevant here, both constitutions require that a “person seeking a warrant
demonstrate upon oath or affirmation sufficient facts to support probable cause to

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No. 2018AP78-CR

believe that ‘the evidence sought will aid in a particular apprehension or
conviction for a particular offense.’” Id., ¶30 (citation omitted).

¶21 To determine whether probable cause existed for the issuance of a
search warrant, we examine the totality of the circumstances presented to the
warrant-issuing commissioner. State v. Romero, 2009 WI 32, ¶3, 317 Wis. 2d 12,
765 N.W.2d 756. In doing so, we recognize that the “‘probable cause standard ...
is a practical, nontechnical conception’ requiring a court to deal with ‘the factual
and practical considerations of everyday life on which reasonable and prudent
men, not legal technicians, act.’” Id., ¶17 (citing Illinois v. Gates, 462 U.S. 213,
231 (1983)). “The defendant bears the burden of proving insufficient probable
cause when challenging a search warrant.” State v. Schaefer, 2003 WI App 164,
¶5, 266 Wis. 2d 719, 668 N.W.2d 760.

¶22 Here, German’s challenge to the sufficiency of the affidavit rests on
his assertion that applications for “[w]arrants to search for child pornography must
include descriptions of the alleged images or attach a copy of the image itself.” In
making this argument, German acknowledges that “Wisconsin courts have not
directly addressed” whether an affiant must include a description of suspected
images of child pornography in order to establish probable cause to believe that
the image sought will aid in an apprehension or conviction for possession of child
pornography. He also recognizes that the United States Supreme Court has not
“specifically addressed” this question.

¶23 Still, German notes that a long line of United States Supreme Court
cases hold that a warrant to seize obscene books or movies cannot be issued upon
a law enforcement officer’s conclusory determination that such material is, in fact,
obscene. See, e.g., New York v. P.J. Video, Inc., 475 U.S. 868, 873 (1986).

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No. 2018AP78-CR

Moreover, he accurately observes that a number of federal circuit courts of appeal
have explicitly required that affidavits seeking warrants to search for suspected
images of child pornography include submission of the images themselves or, at
the very least, detailed descriptions of the images. See, e.g., United States v.
Clark, 668 F.3d 934, 941 (7th Cir. 2012); United States v. Pavulak, 700 F.3d 651,
661 (3d Cir. 2012).

¶24 At the same time, however, German concedes that the federal circuit
courts of appeal have not uniformly reached this conclusion, as there is one
“outlier” circuit. See United States v. Grant, 490 F.3d 627 (8th Cir. 2007).
Namely, in Grant, the Eighth Circuit upheld a warrant to search for child
pornography based upon an officer’s conclusory averment that an informant had
found images of child pornography on a computer. Id. at 630-32.

¶25 For its part, the State argues that under Wisconsin’s “relaxed test” of
observational reliability, see State v. Silverstein, 2017 WI App 64, ¶15, 378
Wis. 2d 42, 902 N.W.2d 550, the quantum of information in Brettingen’s search
warrant affidavit gave rise to probable cause to believe that images of child
pornography would be found in German’s home. In support, the State points to
factors associated with the reliability of Facebook as the initiator of the CyberTips,
as well as the independent police work that verified the information reported in the
CyberTips. Nonetheless, the State does grant that “it may be a better practice for
an affiant to include a description of the images suspected to be child pornography
in the search warrant affidavit.”

¶26 We agree with the State that the “better practice” for law
enforcement seeking to obtain a warrant to search for child pornography is to
either include a copy of the image in question or to provide a description of the

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No. 2018AP78-CR

image in the search warrant affidavit. However, in this case, we need not adopt a
bright-line rule making such practice a requirement to establish probable cause
when applying for a warrant. See State v. Halmo, 125 Wis. 2d 369, 374 n.5, 371
N.W.2d 424 (Ct. App. 1985) (“When possible, this court will avoid deciding a
constitutional question if the case can be decided on other grounds.”); see also
State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (cases
should be decided on the narrowest possible ground). Instead, like the circuit
court, we assume that the search warrant affidavit at issue was insufficient to
establish probable cause and proceed to analyze whether the good faith exception
to the exclusionary rule applies.

II. Good faith doctrine

¶27 Generally, the exclusionary rule operates to exclude evidence
obtained from a search conducted in violation of the Fourth Amendment. Eason,
245 Wis. 2d 206, ¶2. However, “there are exceptions.” Id. As relevant here, one
such exception applies “when the police act in good faith, or in ‘objectively
reasonable reliance’ on a subsequently invalidated search warrant.” State v.
Dearborn, 2010 WI 84, ¶36, 327 Wis. 2d 252, 786 N.W.2d 97.

¶28 The United States Supreme Court established the good faith
exception to the exclusionary rule in United States v. Leon, 468 U.S. 897 (1984).
The Leon Court determined that the exclusionary rule should not be applied when
law enforcement officers who conducted an illegal search “acted in the objectively
reasonable belief that their conduct did not violate the Fourth Amendment.” Id. at
918. And, in the specific context where—like here—law enforcement executes a
search pursuant to a warrant, the Court “conclude[d] that the marginal or
nonexistent benefits produced by suppressing evidence obtained in objectively

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No. 2018AP78-CR

reasonable reliance on a subsequently invalidated search warrant cannot justify the
substantial costs of exclusion.” Id. at 922.

¶29 This conclusion follows because the exclusionary rule is not
“designed to ‘redress the injury’ occasioned by an unconstitutional search.” Davis
v. United States, 564 U.S. 229, 236 (2011) (citation omitted). Rather, the “rule’s
sole purpose … is to deter future Fourth Amendment violations.” Id. at 236-37.
In other words, the “exclusionary rule exists to deter police misconduct.” Utah v.
Strieff, 136 S. Ct. 2056, 2063 (2016). Accordingly, “society must swallow this
bitter pill [of applying the exclusionary rule] when necessary, but only as a ‘last
resort.’” Davis, 564 U.S. at 237 (citation omitted).

¶30 The Leon Court set forth four factors that guide an analysis of when
an officer’s reliance on a subsequently invalidated search warrant may be
considered objectively reasonable, and thereby obviate the need to employ the last
resort of exclusion. Leon, 468 U.S. at 923. Namely, an officer’s reliance on a
warrant is not objectively reasonable when any of the following conditions
occur: (1) the affiant misleads the warrant-issuing magistrate by knowingly or
recklessly supplying false information; (2) the magistrate wholly abandons the
judicial role; (3) the affidavit is so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable; or (4) the warrant is so
facially deficient in failing to particularize the place to be searched or the things to
be seized that the executing officers could not reasonably have presumed it to be
valid. Id.

¶31 In Eason, our supreme court held that, in addition to the Leon
factors, article I, section 11 of the Wisconsin Constitution requires the State to
make two additional showings for the good faith exception to apply. Eason, 245

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No. 2018AP78-CR

Wis. 2d 206, ¶¶29, 63. That is, the State “must show that the process used
attendant to obtaining the search warrant included a significant investigation and a
review by a police officer trained in, or very knowledgeable of, the legal vagaries
of probable cause and reasonable suspicion, or a knowledgeable government
attorney.” Id., ¶63.

¶32 Here, German contends that law enforcement’s reliance on the
search warrant—which, as discussed, we have assumed for purposes of this
opinion to be invalid—was not objectively reasonable for three reasons.
Specifically, he argues that the warrant violated the third Leon factor and the State
failed to meet its burden to show that it satisfied both Eason requirements. The
State responds that “none of the four Leon factors apply and the State can satisfy
both additional Eason requirements.” For the following reasons, we agree with
the State’s argument and therefore conclude that the good faith exception to the
exclusionary rule applies in this case.

A. Leon factors

¶33 As indicated, German only develops an argument as to why the third
Leon factor is applicable to this case. Nonetheless, for the sake of thoroughness,
we discuss each specific factor and explain why none of them counsels against a
conclusion that the officers in this case acted in objectively reasonable reliance on
the search warrant.

¶34 The first Leon factor asks whether the affiant mislead the
warrant-issuing magistrate by knowingly or recklessly supplying false
information. Here, that was clearly not the case, as there is no allegation that any
of the information Brettingen included in her affidavit was false or misleading.
Nor was this a situation where Brettingen arguably attempted to conceal

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No. 2018AP78-CR

information that would discourage a finding of probable cause to issue the
warrant.

¶35 To the contrary, it is undisputed that the images Brettingen observed
in CyberTips 3593919 and 3692234 were, in fact, images of child pornography.
Nor could there be any such dispute as, based on the descriptions of the images
provided above, they unquestionably depicted “child[ren] engaged in sexually
explicit conduct.” See WIS. STAT. § 948.12(1m); see also State v. Petrone, 161
Wis. 2d 530, 558, 468 N.W.2d 676 (1991), overruled on other grounds by State v.
Greve, 2004 WI 69, ¶31 n.7, 272 Wis. 2d 444, 681 N.W.2d 479.

¶36 The second Leon factor addresses whether the magistrate wholly
abandoned his or her judicial role in issuing the search warrant. The Leon Court
clarified that this factor refers to the manner in which the magistrate abandoned
his judicial role in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979). Leon, 468
U.S. at 923. In that case, the warrant-issuing magistrate “allowed himself to
become a member, if not the leader, of the search party which was essentially a
police operation. … [H]e was not acting as a judicial officer but as an adjunct law
enforcement officer.” Lo-Ji Sales, 442 U.S. at 327. We agree with the State that
“[n]othing even remotely comparable to that occurred here,” and therefore proceed
to the third Leon factor.

¶37 The third Leon factor is implicated when a warrant so lacked any
indicia of probable cause as to render official belief in its existence entirely
unreasonable. German’s argument regarding this factor echoes his argument as to
why the warrant itself lacked probable cause. That is, he argues that because
Brettingen “offered only conclusory assertions that the images depicted child

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No. 2018AP78-CR

pornography,” there were “no indicia of probable cause” in the search warrant
affidavit. Further, he states:

[I]t has long been the law of the land that warrants for the
search and seizure of “obscenity” must be based on more
than the affiant’s say-so: the affidavit must include the
image or describe its contents. It is totally unreasonable for
an officer to understand that a conclusory allegation that an
image is “obscene” would support a warrant to search for
obscene materials under WIS. STAT. § 944.21, but to believe
that a conclusory allegation that material is “child
pornography” would support a warrant to search for child
pornography.

¶38 We are not persuaded by German’s argument. German’s assertion
that Brettingen’s affidavit contained “no indicia of probable cause” rests on the
false premise that, at the time the warrant was issued, the governing law clearly
required a description of the suspected images of child pornography in order to
establish probable cause. That was—and is—not the case. As we have already
explained—and as German himself acknowledges—there is currently no binding
Wisconsin authority, nor any decision from the United States Supreme Court, that
delineates what level of description an affiant must provide to establish probable
cause that an image is child pornography. And, compellingly, one federal circuit
court of appeals has explicitly held that a search warrant affidavit that lacked any
description of an image beyond the affiant’s statement that the image was child
pornography was “sufficient to justify issuing a warrant to search.” Grant, 490
F.3d at 632.

¶39 Moreover, even if it were the case that the governing law clearly
required an affiant to describe the images of child pornography sought to be
searched for, it would not follow that the remaining information in the search
warrant affidavit provided “no indicia” of probable cause. To explain, the search
warrant affidavit indicated that three law enforcement officers reviewed the

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No. 2018AP78-CR

CyberTips generated by Facebook and submitted to NCMEC, as required by
federal law. The Facebook account identified by those tips as being the source of
the images was tied to German, and subsequent investigation showed the account
that uploaded the images was physically located at the residence police sought to
search. Given this information—and coupled with Brettingen’s experience,
training and personal observation of the images that led her to conclude the images
were, in fact, child pornography—we cannot conclude it would be “entirely
unreasonable” for an officer to believe in the validity of the search warrant. See
Leon, 468 U.S. at 923.

¶40 As to the fourth and final Leon factor, we have already explained at
length that the state of the law regarding sufficient probable cause to issue a
warrant to search for child pornography is unclear. Given this reality, we cannot
say that the warrant was “facially deficient.” See id.

B. Eason requirements

¶41 To satisfy the first Eason requirement, the State must show that the
process used in obtaining the search warrant included a “significant investigation.”
Eason, 245 Wis. 2d 206, ¶63. German argues the State failed to do so because

[t]he investigation recounted in the affidavit itself consists
of how private companies provided law enforcement with
the “CyberTips,” and how law enforcement determined a
physical address for the computer that sent the images at
issue. However, there was no other investigation into
whether the defendant sent the images in question, or
otherwise suggesting that the defendant possessed child
pornography.

The State largely agrees with German’s characterization of the facts of the
investigation, but it argues we should reach the opposite conclusion based upon

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No. 2018AP78-CR

those facts—i.e., that the investigatory steps the affidavit described did show a
“significant investigation.”

¶42 We agree with the State’s position. A significant investigation
occurs when there are “multiple steps” taken to investigate allegations of criminal
activity. See State v. Scull, 2015 WI 22, ¶41, 361 Wis. 2d 288, 862 N.W.2d 562.
As set forth in the search warrant affidavit, law enforcement officials from three
state agencies reviewed the information provided in the CyberTips. Special agent
Joy, the first reviewing officer, prepared reports regarding the tips, which he
forwarded to deputy Nocchi. Nocchi then confirmed that an IP address in one of
the CyberTips corresponded to the address that investigator Brettingen later sought
to search in her search warrant application. In addition, Brettingen averred that
she personally reviewed the images provided in the CyberTips and that they “did
appear to be image[s] of child pornography.”

¶43 Apart from that portion of his argument where he asserts that
Brettingen should have provided a detailed description of the images contained in
the CyberTips, he fails to provide citation to any legal authority that would explain
what was deficient about this investigation. Thus, at bottom, German’s contention
that the investigation was not “significant” enough to satisfy the first Eason
condition rests on the fact that the search warrant affidavit did not describe the
images contained in the CyberTips. But, again, there was no controlling authority
alerting Brettingen that she had an obligation to do so. Consequently, we
conclude that the State met its burden to show that the process used in obtaining
the search warrant included a significant investigation.

¶44 The second Eason requirement obligates the State to show that
before seeking a search warrant, there was a review of the warrant application by

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No. 2018AP78-CR

either a police officer trained in the legal vagaries of probable cause and
reasonable suspicion, or by a government attorney. Eason, 245 Wis. 2d 206, ¶63.
German asserts in his brief-in-chief that the State failed to do so here because there
is “no indication” that a government attorney reviewed the application.

¶45 As the State notes, however, Eason allows for review by either a
government attorney or “a police officer trained in, or very knowledgeable of, the
legal vagaries of probable cause.” Id. Accordingly, the State argues that
Brettingen’s extensive training and experience, as set forth in her affidavit,
satisfied the second Eason requirement. German replies that “there is no evidence
that Brettingen was specifically ‘trained and knowledgeable in the requirements of
probable cause and reasonable suspicion,’ which are technical, legal
determinations independent from the factual investigations Brettingen has
experience conducting.”

¶46 We reject German’s argument that the affidavit had to show direct
evidence that Brettingen was specifically trained and knowledgeable in the
requirements of probable cause and reasonable suspicion for the State to satisfy
the second Eason requirement. Rather, we conclude that Brettingen’s eighteen
years of experience, combined with her averment that she had received “hundreds
of hours of formal education and training in various aspects of law enforcement;
including theories, procedures, and practices associated with criminal
investigations and the application of state and federal statutes,” satisfies the second
Eason requirement.

CONCLUSION

¶47 In sum, we assume, without deciding, that there was a lack of
probable cause to support the issuance of the search warrant. Nonetheless, we

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No. 2018AP78-CR

conclude that the good faith exception to the exclusionary rule applies because the
State has met its burden of establishing that law enforcement acted in objectively
reasonable reliance on a warrant issued by a detached and neutral magistrate.
Therefore, the circuit court properly declined to suppress the evidence obtained
pursuant to the execution of the warrant.

By the Court.—Judgment affirmed.

Not recommended for publication in the official reports.

19