author: SNYDER, J. ANDERSON, RJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Jack P. Lindgren, Defendant-Appellant.

    Court of Appeals

      Nos. 03-1868-CR, 03-1869-CR.

      Submitted on briefs February 23, 2004.

    Decided July 21, 2004.

    2004 WI App 159
    (Also reported in 687 N.W.2d 60.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Stephen M. Compton of Thorpe, Compton & Christian, S.C., Delavan.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of Shannon Wittenberger, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Anderson, EJ., Brown and Snyder, JJ.

       Petition to review denied 10-19-04.

   SNYDER, J.

¶ 1. Jack E Lindgren appeals from a judgment of conviction for five counts of possession of child pornography contrary to Wis. Stat. §§ 948.12 and 939.50(3)(e) (2001-02), one count of child enticement contrary to Wis. Stat. § 948.07, and one count of manufacturing-delivering tetrahydrocannab-inols (THC) contrary to Wis. Stat. § 961.41(l)(h)l. Lindgren contends that the warrant allowing the police to search his home was illegal, and therefore the evidence discovered and used against him as a result of the illegal search should have been suppressed. He further contends that the evidence against him on the child pornography charges fails to demonstrate that he ever had possession of child pornography and that these charges constituted a multiplicity violation. We disagree and affirm the judgment of the trial court.

FACTS

¶ 2. The facts are largely undisputed. The victim, A.J., took a job at Lindgren's store in October 2001, when she was fourteen years old. A. J. did not fill out a job application, and Lindgren paid her in cash. In December, at a casual party at the business, Lindgren allowed A. J. to consume alcohol. She had worn a shirt and skirt that day, but had changed into her uniform for work. Lindgren told A.J. that he wanted a picture of her in her skirt. A.J. went to change her outfit in a bathroom. Lindgren followed her and took a Polaroid picture of her in her bra and underpants. He took a second picture of her in her shirt and skirt.

¶ 3. In January 2002, A.J.'s boyfriend began to call and visit her at work. Lindgren asked her about this and she explained that she was not allowed to use the phone to call her boyfriend from her foster home. A.J. indicated that Lindgren agreed to let her call her boyfriend from Lindgren's cell phone if he could take more photographs of her. She agreed.

¶ 4. Between January 2002 and March 9, 2002, there were three or four more photo sessions during which Lindgren would touch A.J. on her breasts, legs, and bottom. He also gave her cash, between $5 and $50, when he took pictures of her. On March 9, 2002, Lindgren took two nude photographs of A.J. and touched her vaginal area. She got dressed, left, and did not return to work for Lindgren.

¶ 5. A.J. reported the events to her foster mother, who took A. J. to the City of Kenosha Police Department on March 18, 2002. On March 19, A.J. telephoned Lindgren from the police department. Detective Ruben Silguero taped the conversation, which included the following exchange:

Lindgren: What's up?
A.J.: I was just wondering. Ah, God, umm, you said you destroyed all the pictures of me, right?
Lindgren: Yeah, you seen me throw them out.
A.J.: Yeah, but I didn't see you throw them ALL out.
Lindgren: Yeah, you did.
A. J.: No, 'cause remember one time we were in a rush, and you left 'em there, and I was just making sure you destroyed all of my naked pictures of me.
Lindgren: No, I never took 'em home. I cut 'em up. They're in the dumpster.
A.J.: They're in the dumpster.
Lindgren: The other ones, I burnt 'em. Why?
A.J.: Okay. Well, all — all the pictures of me, my (inaudible) underwear, one's the nude — nude are all done. They're thrown away, burned whatever you did with them, right.
Lindgren: Yes, you saw me. I burnt 'em. They were burnt right in front of you. The one was burnt, and the other one I cut up in front of you. That's why I did it in front of you, so you don't think that—
A.J.: No, no, no, you didn't do 'em all.
Lindgren: Oh, those other ones. No, I left here and I did the next day. And those aren't nude anyway, there [sic] just your underwear, bra.
A.J.: How many did we take?
Lindgren: I don't know. (Pause) I don't remember, (laughed) Been a few. I never took 'em home though. The only ones I took home was [sic] those ones I brought back—

¶ 6. Detective Silguero later interviewed Lindgren about A.J.'s allegations. During the interview Lindgren admitted that he thought A.J. was fifteen years old and that he had taken photographs of A. J., but he insisted that she was fully clothed in the photographs. After Silguero told Lindgren that he had listened to the phone conversation with A.J., Lindgren supplemented his statement. This time he indicated that A. J. would "flash" him by lifting her shirt to expose her bra and opening her pants to expose her underwear, which Lindgren described as "thong-type" underwear. He continued to deny taking any nude photographs of A.J., but stated "what can I do when I had a camera in my hand, I took the pictures of her flashing me."

¶ 7. After the interview, Silguero asked Lindgren for permission to search his business and his home. Lindgren said no. Silguero indicated he would draw up a search warrant and Lindgren then turned over keys to both locations in order to avoid any damage when the police entered the property. Detective Robert Queen was assigned to assist Silguero with the search warrants.

¶ 8. The detectives prepared an affidavit for a search warrant for Lindgren's home, car, and business. A Kenosha county court commissioner signed the warrant authorizing the searches.

¶ 9. Queen and Silguero found three guns, a Polaroid camera and film, and large amounts of cash at Lindgren's business. At his residence, they discovered a nursery for marijuana plant seedlings, several mature marijuana plants, marijuana that had been harvested and dried, a scale, pornographic magazines and tapes, several guns, and approximately $13,000 in cash. They also confiscated Lindgren's home computer system.

¶ 10. The State charged Lindgren with child enticement, second-degree sexual assault of a child under sixteen years of age, and manufacturing-delivering THC.

¶ 11. Police computer expert Ric Bentz, in collaboration with FBI Agent Matthew Petersen, examined Lindgren's computer. They determined that pornographic photographs were on the hard drive, including photographs from child pornographic sites. The State filed a second complaint, charging Lindgren with six counts of possession of child pornography.

¶ 12. Lindgren moved to suppress all evidence seized in the searches based on insufficiency of the affidavit supporting the search warrant. The trial court denied the motion, finding that the magistrate could have reasonably found that the objects sought were linked to a crime and that the objects would be found in the place to be searched, that is, the home.

¶ 13. Lindgren pled no contest to one count of child enticement and one count of manufacturing-delivering THC. The second-degree sexual assault of a child charge was dismissed. Following a bench trial, the court found Lindgren guilty of five counts of possession of child pornography. Lindgren appeals, asking this court to set aside all convictions.

DISCUSSION

¶ 14. Lindgren presents three issues on appeal. First, he contends that the search of his home lacked probable cause because there was an insufficient nexus between the conduct complained of and the location searched. Next, he argues that the evidence presented at trial was insufficient to support a charge of possession of child pornography. Finally, Lindgren raises a multiplicity violation. We take these issues in the order presented.

Search Warrant and Probable Cause

¶ 15. Lindgren argues that Silguero's affidavit did not demonstrate probable cause for searching his home because all of the conduct complained of occurred at his business. Specifically, he asserts that Silguero did not present any grounds for believing that a crime was committed at Lindgren's residence, and further, he challenges the sufficiency of Attachment B, a profile of preferential child molesters, as the justification for the search of his home. We give great deference to a magistrate's determination that probable cause supports issuing a search warrant. State v. Ward, 2000 WI 3, ¶ 21, 231 Wis. 2d 723, 604 N.W.2d 517. This deferential standard of review "further[s] the Fourth Amendment's strong preference for searches conducted pursuant to a warrant." State v. Schaefer, 2003 WI App 164, ¶ 4, 266 Wis. 2d 719, 668 N.W.2d 760 (citation omitted), review denied, 2003 WI 140, 266 Wis. 2d 61, 671 N.W.2d 848 (Wis. Oct. 1, 2003) (No. 01-2691-CR).

¶ 16. When reviewing the validity of a search warrant, we are limited to the record that was before the issuing magistrate. Id., ¶ 6. Accordingly, we confine our review to Silguero's affidavit, which describes A.J.'s allegations and the taped telephone conversation, and incorporates by reference Attachment B.

¶ 17. Silguero's affidavit stated an expectation that the detectives would find "photographic material of underage children of sexually explicit nature, a computer with associated devices for storage and duplication of photographic material, and items listed on attachment B." He provided factual grounds for issuing the warrant, stating that A.J.'s statement alleged that Lindgren had taken "photographs of her nude" and that "he touched her vaginal area while she was naked." A.J. also stated that Lindgren told her that he had taken photographs of other female employees. In the taped telephone conversation, Silguero heard Lindgren admit to taking nude photographs of A. J. The affidavit contained all of this information and stated that the actions complained of took place at Lindgren's place of business.

¶ 18. In addition to A.J.'s allegations and the telephone conversation, Silguero's affidavit incorporated by reference Attachment B, entitled "Preferential Child Molester Information," which listed common habits and characteristics of child molesters. Specifically, the preferential child molester profile asserted that the affiant, here Silguero, learned through training, experience, and consultations with experts that preferential child molesters collect sexually explicit materials such as photographs or videotapes, rarely dispose of these materials, often use instant photograph equipment such as Polaroid cameras, go to great lengths to conceal and protect the illicit materials, and maintain diaries of their encounters in notebooks, on audio tape, or on their home computers.

¶ 19. Upon reviewing Silguero's application for a search warrant, the court commissioner was to make a "practical, common sense decision whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." See id., ¶ 4 (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)). We must consider whether, when objectively viewed, the information before the magistrate provided "sufficient facts to excite an honest belief in a reasonable mind that the objects sought are linked with the commission of a crime, and that they will be found in the place to be searched." State v. Marquardt, 2001 WI App 219, ¶ 13, 247 Wis. 2d 765, 635 N.W.2d 188. We conclude that Silguero did indeed provide sufficient facts to the court commissioner.

¶ 20. The quantum of evidence required to establish probable cause to issue a search warrant is less than that needed to bind over for trial at a preliminary hearing. State v. Higginbotham, 162 Wis. 2d 978, 989, 471 N.W.2d 24 (1991). "Probable cause is not a technical, legalistic concept but a flexible, common-sense measure of the plausibility of particular conclusions about human behavior." Id. (citation omitted). Here, Silguero placed a plausible scenario, based on facts and experience, before the court. He alleged that the search warrant was intended to uncover evidence related to the crime of sexual exploitation of a child, that the search would uncover items specifically referenced by the victim, and that it was reasonable to expect that the perpetrator of this sort of crime would go to great lengths to conceal the objects and may have kept a record of the illegal activity on a home computer. We agree with Lindgren that Silguero could have presented a more complete foundation for the search of Lindgren's residence. For example, the transcript of the telephone conversation reveals that when pressed about the photographs, Lindgren stated, "The only ones I took home was [sic] those ones I brought back." Had Silguero specifically referenced this statement in the affidavit, the search warrant would have been less vulnerable to Lindgren's attack. It is the established policy of our appellate courts, however, that marginal cases regarding a warrant-issuing magistrate's determination of probable cause should be largely determined by the strong preference that officers conduct their searches pursuant to a warrant. Id. at 990. We hold that the court commissioner in issuing the search warrant made a practical, commonsense decision whether, given all of the circumstances set forth in the affidavit before him, there was a fair probability that contraband or evidence of a crime would be found at Lindgren's residence. See Schaefer, 266 Wis. 2d 719, ¶ 4.

Sufficiency of the Evidence for Possession of Child Pornography

¶ 21. Following a bench trial, Lindgren was convicted on five of six counts of possession of child pornography. At trial, the State presented evidence obtained from Lindgren's home computer. Through its computer experts, Bentz and Petersen, the State introduced eleven exhibits, specifically, five thumbnail images and six other images that had been electronically opened to enlarge the pictures. At trial, Petersen testified that in order for the photographs found on Lindgren's hard drive to be stored as they were, the person would have had to go to the Web site and click on the small thumbnail pictures to enlarge the images. Upon clicking to enlarge the image, it would be stored on the hard drive. Petersen opined that clicking on the thumbnail pictures to bring up larger images reflected an attempt to "control or manipulate" the images.

¶ 22. Lindgren challenges the court's finding that he "possessed" child pornography as that term is used in Wis. Stat. § 948.12(lm), which states in relevant part:

(lm) Whoever possesses any undeveloped film, photographic negative, photograph, motion picture, videotape, or other recording of a child engaged in sexually explicit conduct under all of the following circumstances is guilty of a Class I felony:
(a) The person knows that he or she possesses the material.
(b) The person knows the character and content of the sexually explicit conduct in the material.
(c) The person knows or reasonably should know that the child engaged in sexually explicit conduct has not attained the age of 18 years.

¶ 23. Lindgren asserts that the images recovered from his personal computer were never in his possession. He relies on his own expert, Steven Greenfield of SMG Computing, Inc., who testified that no evidence of any child pornography had been saved on Lindgren's computer. Lindgren also raises the issue of "pop-up" ads that will appear when a computer user is on the Internet and may result in unintended or undesired information on any computer. In sum, Lindgren contends that the evidence presented was insufficient to support the court's finding of possession, a required element of the crime.

¶ 24. The burden of proof is on the State to prove every essential element of the crime charged beyond a reasonable doubt. State v. Poellinger, 153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990). The test is not whether this court is convinced of the defendant's guilt, but whether we can conclude that the trier of fact could, acting reasonably, be so convinced by the evidence. Id. at 503-04. When reviewing the evidence to challenge a finding of fact, we view it in the light most favorable to the finding. Id. at 504. Under this standard, a reviewing court may overturn a verdict on grounds of insufficiency of the evidence only if the trier of fact could not possibly have drawn the appropriate inferences from the evidence adduced at trial. State v. Watkins, 2002 WI 101, ¶ 68, 255 Wis. 2d 265, 647 N.W.2d 244.

¶ 25. Lindgren's challenge to the concept of possession in the context of computer material has been recently, though not widely, addressed. We take guidance from a federal case where facts and issues reasonably analogous to those here were considered. In United States v. Tucker, 305 F.3d 1193 (10th Cir. 2002), cert. denied, 537 U.S. 1223 (2003), Tucker argued that because the child pornography images were only temporarily displayed on his computer screen and he did not desire the images to be saved on his hard drive, he was not guilty of possession of the images. Id. at 1204. Tucker argued that a computer will automatically save thumbnail pictures to the temporary Internet cache file and that this involuntary process should not be held against the computer user. Id. at 1205.

¶ 26. The Tucker court was not persuaded, finding that Tucker had control over the files present in his Web browser cache file. Id. at 1204. At the trial, the government's computer expert testified that an image in a cache file can be attached to an e-mail, posted to a newsgroup, placed on a Web site, or printed to a hard copy. Id. The court held:

Tucker ... intentionally sought out and viewed child pornography knowing that the images would be saved on his computer. Tucker may have wished that his Web browser did not automatically cache viewed images on his computer's hard drive, but he concedes he knew the Web browser was doing so. Tucker continued to view child pornography knowing that the pornography was being saved, if only temporarily, on his computer. In such circumstances, his possession was voluntary. Since he knew his browser cached the image files, each time he intentionally sought out and viewed child pornography with his Web browser he knowingly acquired and possessed the images.

Id. at 1205 (footnote omitted).

¶ 27. We adopt the Tucker court's reasoning. Here, the State's experts testified that Lindgren had visited teen sex Web sites, that five images showed up twice on Lindgren's computer hard drive (once as a thumbnail and once as a larger image), that for images to be saved on Lindgren's hard drive he would have had to click on and enlarge the thumbnail images, and that the only way an image would have been stored on the hard drive was if the computer user tried to save or otherwise manipulate the image by clicking on it. Further, Petersen testified that one of the images was saved to "My Documents" in the "Jack Lindgren" folder, but the others were not because the new operating system overwrote the old one. Although Lindgren attempts to paint himself as the victim of computer viruses and unwanted "pop-up" ads, there is sufficient evidence in the record to demonstrate that he knowingly possessed the child pornography images on his computer because he repeatedly visited child pornography Web sites, clicked on thumbnail images to create larger pictures for viewing, accessed five images twice, and saved at least one image to his personal folder. We conclude that the trial court as finder of fact could, acting reasonably, have been convinced by the evidence that Lindgren possessed the child pornography. See Poellinger, 153 Wis. 2d at 504.

Multiplicity

¶ 28. Lindgren's final claim of error rests on the multiple possession charges for which he stands convicted. Lindgren does not argue the multiplicity issue in his brief-in-chief and cannot save it in his reply brief. Lindgren attempts to recast the purpose of the reply brief as one that can respond to any issue raised by the respondent in the response brief. In other words, Lindgren asserts that because the State's response brief noted that he had waived the issue of multiplicity, he is now free to argue it in his reply brief. That is not the law. If an appellant fails to discuss an alleged error in his or her main brief, the appellant may not do so in the reply brief. See Marquardt, 247 Wis. 2d 765, ¶ 14 n.3. We may decline to review an issue inadequately briefed and deem this issue waived. See Roehl v. Am. Family Mut. Ins. Co., 222 Wis. 2d 136, 149, 585 N.W.2d 893 (Ct. App. 1998).

CONCLUSION

¶ 29. We hold that the court commissioner in issuing the search warrant made a practical, commonsense decision whether, given all of the circumstances set forth in the affidavit before him, there was a fair probability that contraband or evidence of a crime would be found at Lindgren's residence. See Schaefer, 266 Wis. 2d 719, ¶ 4. We further hold that the facts presented at trial support the court's finding of "possession" within the meaning of Wis. Stat. § 948.12(lm), and conclude that the convictions for five counts of possession of child pornography are supported by sufficient evidence. We decline to review the multiplicity challenge because Lindgren has waived the issue.

By the Court. — Judgment affirmed.

ANDERSON, RJ.

¶ 30. (dissenting). I respectfully dissent from that portion of the majority opinion holding that the search warrant for Lindgren's home was supported by probable cause. I cannot join in the conclusion that Detective Ruben Silguero's affidavit and Attachment B, titled "Preferential Child Molester Information" pass muster. I part company with the majority because there is nothing in the record that tells me why the issuing magistrate should have relied upon Silguero's experience and special knowledge.

¶ 31. In Wisconsin, a warrant-issuing magistrate may rely upon the experience and special knowledge of the police officer applying for a search warrant. State v. Harris, 256 Wis. 93, 100, 39 N.W.2d 912 (1949). Two recent decisions demonstrate what is needed to establish the experience and special knowledge of the officer. First, in State v. Multaler (Multaler II), 2002 WI 35, 252 Wis. 2d 54, 643 N.W.2d 437, there was a challenge to the sufficiency of the affidavit accompanying the application for a search warrant. Multaler was the suspect in the disappearance and murder of four young women in 1974 and 1975; it was not until 1998 that the police were able to apply for a search warrant for Multaler's residence. Id., ¶ 3. The core of the affidavit submitted in support of a request for a search warrant was that the applying officer and another detective were investigating the disappearance and murder of four young women and not only was Multaler the prime suspect

but also was a serial killer as evidenced by his behavior that was consistent with that expected of serial homicide offenders; as serial killers are wont to do, he collected and retained various mementos to remind him of the murders, including items taken from the victims; although it was more than 20 years since the time of the murders, these items were likely to be found in his house because serial killers retain such items indefinitely.

Id., ¶ 9. The affidavit being reviewed by the supreme court in Multaler II, painstakingly details the pertinent facts the investigating officer had accumulated, the officer's experience and training, and only then does the affidavit begin to meticulously match pieces of evidence to the characteristics of serial homicide offenders. Appendix for Appellant at 14-30, State v. Multaler (Multaler I), 2001 WI App 149, 246 Wis. 2d 752, 632 N.W.2d 89 (No. 00-1846-CR).

¶ 32. Multaler directly challenged reliance upon the investigator's opinion that he was a serial killer, asserting that the detective had no personal experience investigating serial killers, and he did not cite the sources upon which he based his opinion. The supreme court rejected Multaler's argument:

The affidavit shows that Investigator Hanrahan exhaustively researched and studied the patterns of serial homicide offenders. His statements regarding the typical characteristics of serial killers were based upon a number of expert sources, for which he supplied names, authors, and credentials. In addition, Hanrahan stated in the affidavit that he attended various training courses or symposia on the subject of serial killers, some of which were taught by the experts who had written materials Hanrahan studied.
There can be no question that Investigator Hanra-han possessed specialized knowledge pertaining to traits common to serial killers based on his extensive study of the topic. His lack of previous field experience investigating serial homicide is not a bar to his qualifications to give opinions about the behavior of serial killers for purposes of a warrant.

Multaler II, 252 Wis. 2d 54, ¶¶ 44-45.

¶ 33. The second case is State v. Schaefer, 2003 WI App 164, 266 Wis. 2d 719, 668 N.W.2d 760, review denied, 2003 WI 140, 266 Wis. 2d 61, 671 N.W.2d 848 (Wis. Oct. 1, 2003). At issue in Schaefer was the sufficiency of the probable cause supporting a search warrant for Schaefer's residence, issued upon the affidavit of Special Agent Michael J. Vendóla, of the Division of Criminal Investigation of the State's Department of Justice. A very lengthy affidavit described in thorough detail evidence law enforcement had gathered from interviews and searches of other locations. See id., ¶¶ 8-13. The affidavit incorporated a document labeled Attachment A, entitled "Michael J. Vendóla Qualifications as of 07/01/98" and a document labeled Attachment B, without a title, that is a two-page document containing eighteen characteristics of preferential child molesters. See id., ¶ 6. Similar to the affidavit in Multaler I and II, the affidavit in Schaefer methodically matches the detailed evidence with the characteristics of preferential child molesters to support the affiant's conclusion that Schaefer is a preferential child molester. Appendix for Appellant at 128-30, Schaefer, 266 Wis. 2d 719. Citing from Multaler II, 252 Wis. 2d 54, ¶ 34, that "every probable cause determination must be made on a case-by-case basis, looking at the totality of the circumstances," we rejected Schaefer's challenge to the search warrant. Schaefer, 266 Wis. 2d 719, ¶¶ 17, 29.

¶ 34. Silguero's two-and-one-half page affidavit in this case lacks any information detailing his experience and specialized training. While his affidavit incorporates the same Attachment B from Schaefer with the same introductory phrase, "[f]rom affiant's training, experience, and consultations with professionals dealing with preferential child molesters, affiant has learned that," it does not provide the magistrate with the experience and special knowledge of Silguero. In Multaler I and II and Schaefer, the affidavits carefully set forth the evidence that has been gathered, thoroughly describe the police officer's extensive experience and training; and, after establishing a solid foundation, the affidavits systematically offer the affiant's opinion why a piece of evidence is consistent with the characteristics of either a serial homicide offender or a preferential child molester. Unfortunately, in this case, the affidavit has only two paragraphs of evidence that has been gathered by Silguero; it does not establish his credentials, and it does not offer his opinion of why the evidence establishes that Lindgren is a preferential child molester.

¶ 35. I recognize that the application for a search warrant is not a research paper in which each fact and conclusion must be extensively annotated. Multaler II, 252 Wis. 2d 54, ¶ 47. Nevertheless, the affidavit must provide a substantial basis to support the conclusion that probable cause existed. State v. Higginbotham, 162 Wis. 2d 978, 988-89, 471 N.W.2d 24 (1991). The warrant-issuing magistrate cannot go outside of the application for a search warrant to find probable cause but must limit review to the facts presented. See State v. Ward, 2000 WI 3, ¶ 26, 231 Wis. 2d 723, 604 N.W.2d 517. Similarly, the warrant-issuing magistrate cannot base a finding of probable cause upon suspicions and conclusions in the application for a search warrant. Id., ¶ 28; Higginbotham, 162 Wis. 2d at 992. The failure to provide Silguero's experience and special knowledge and to use his background to match the evidence gathered to the characteristics of preferential child molesters leads to the result the supreme court warned about in Multaler II:

[W]e agree with the analysis the State gives in its brief:
The affidavit might have been flawed as conclusory if Hanrahan had merely asserted the general proposition that he was qualified to offer information about serial killers. That is not what Hanrahan did. He identified the authority underlying his statements, and established that his reliance on the sources was reasonable.

Multaler II, 252 Wis. 2d 54, ¶ 48.

¶ 36. Silguero's affidavit is fatally flawed. He generally asserts that because of his training, experience and consultations with professionals, he is qualified to describe the eighteen characteristics of preferential child molesters and to conclude that based upon his investigation, Lindgren is a preferential child molester. Silguero fails to identify his training, experience and the professionals he has consulted; he fails to establish any support for his statements; and he fails to establish that his reliance on his sources was reasonable. Therefore, the affidavit and Attachment B consist only of eighteen conclusory statements and unspoken suspicions that Lindgren's behavior is consistent with the behavior of preferential child molesters. Consequently, I conclude that the application for a search warrant lacks a substantial basis to support a finding of probable cause.

¶ 37. While I would reverse the circuit court's finding that there was probable cause to support the search warrant of Lindgren's home, I would not suppress the evidence seized during the search. Because our supreme court has adopted the good faith exception to the exclusionary rule, State v. Eason, 2001 WI 98, ¶ 74, 245 Wis. 2d 206, 629 N.W.2d 625, I would remand for a determination of Silguero's experience and specialized knowledge, whether it supports his assertion that Attachment B accurately describes the characteristics of a preferential child molester and whether under the totality of the circumstances it is reasonable for Silguero to conclude that evidence he has gathered permits the conclusion that Lindgren is a preferential child molester.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       In March 2002, Albert Thumler, III, an acquaintance of Lindgren's, helped Lindgren upgrade his system from Windows Millennium to Windows XE The upgrade was performed just days before the police seized the computer.

       The investigating detective's affidavit was lengthy and devoted several paragraphs to his experience and training:
      Your affiant states that he has read, studied and researched numerous books, texts and articles on the subject of Serial Homicide.
      Your affiant states that he has attended a number of training courses and symposiums relative to Criminal Profiling and Serial Homicide.
      Your affiant states that he has read four books on the topic of Serial/Sexual Homicide authored by John Douglas, Ph.D. Mr. Douglas is a retired Supervisory Special Agent for the Federal Bureau of Investigation, and the former Head of the FBI's Behavioral Science Unit in Quantico, VA.
      Your affiant states that he has read two books on Serial Homicide and Signature Killers authored by Robert D. Keppel, Ph.D. Mr. Keppel is currently the Chief Criminal Investigator for the Washington State Attorney General's Office and was formerly a Detective with the King County (WA) Sheriffs Office. Mr. Keppel was the Lead Investigator in the investigation of the numerous serial homicides committed in King County Washington by Ted Bundy. Mr. Keppel was also the Lead Investigator in the investigation of numerous serial homicides in King County Washington called the Green River Murders, where there are at least 49 victims. Mr. Keppel was also called in as a consultant for the Atlanta Child Murders.
      Your affiant states that he has read three books on Serial Homicide authored by Robert K. Ressler. Mr. Ressler is a retired Special Agent for the FBI, also having been assigned to the FBI Behavioral Science Unit in Quantico, VA.
      Your affiant states that he has read the text Practical Homicide Investigation authored by Vernon J. Geberth, a retired Lieutenant Commander with the New York City Police Department Homicide Division.

        Your affiant states that he has attended two multiple day training courses on Criminal Profiling and Criminal Investigative Analysis, both with regard to Serial Homicide. The courses were from the FBI and taught by Neil Purtell, a Special Agent with the Federal Bureau of Investigation in Madison, Wisconsin.
      Your affiant states that in April of 1998, he attended a three day Homicide symposium in Green Bay, Wisconsin. The symposium was put on by the Wisconsin Association of Homicide Investigators, of which your affiant is a member.
      Lecturers for that symposium were the aforementioned John Douglas, Ph.D., and Robert Keppel, Ph.D. Messrs. Douglas and Keppel covered at length, all aspects of Serial Homicide and Signature Killers.
      Appendix for Appellant at 26-27, State v. Multaler (Multaler I), 2001 WI App 149, 246 Wis. 2d 752, 632 N.W.2d 89 (No. 00-1846-CR).

       Attachment A is properly characterized as a resume and includes the following information:
      Received Bachelor of Arts Degree, University of Illinois, Psychology Major;
      Police Officer since 1969;

        Hired by Wisconsin Department of Justice on 05/05/72 and certified as police officer since 1972;
      Investigated child pornography and child molestation since 1984;
      Has focused on preferential child molesters;
      Has authored five articles; "Use Of Wisconsin Statutes as an Aid in the Investigation of Child Sexual Assault," "Use of Wisconsin Statutes as an Aid in Investigation of Child Abuse," "Child Pornography and Sexual Exploitation," "Covert Phone Calls Using Juveniles," and ''Validation of Child Sexual Abuse";
      Has developed sexually exploited child offender (SECO) format for classifying offenders;
      Has examined hundreds of nude/sexually explicit visual depictions of juveniles;
      Has interviewed scores of juvenile sexual assault victims;
      Has received awards from the United States Customs Service for participating in a 1985 child pornography importation case; the Winnebago County District Attorney's office in a 1994 investigation, arrest and conviction of a preferential child molester; the Outagamie County District Attorney's office in a 1994 investigation, arrest and conviction of a serial murderer whose victims included two juveniles;
      Has submitted examples of child pornography and child erotica, in 1986, to the Midwest Regional Meeting of the Attorney General's Commission on Pornography;
      Has interviewed or had covert contact with numerous convicted child molesters, and has read scores of correspondence sent to and from preferential child molesters;
      Has assisted in preparing 26 search warrants whose basis, in part, relied on preferential child molester traits — not one search warrant has been suppressed and all defendants have been convicted of criminal charges, with one exception, and one Lafayette County case is charged and pending;
      Has assisted in approximately 74 child pornography/child sexual assault investigations;

        Has provided consultation to local law enforcement agencies on approximately 62 additional cases;
      Member of American Professional Society on the Abuse of Children (APSAC);
      Has provided instruction to law enforcement officers, probation and parole officers, juvenile intake officers, and prosecutors, totaling approximately 257 hours and over 2065 students;
      Has consulted regularly with law enforcement officers across the United States who investigate child sexual assault/exploitation;
      Has read numerous articles, publications and books from noted authorities in the fields of child abuse and sexual abuse;
      From 1982 through 07/01/98, has received approximately 236 hours of training relating to child sexual abuse/exploitation and child abuse.
      Appendix for Appellant at 133, State v. Schaefer, 2003 WI App 164, 266 Wis. 2d 719, 668 N.W.2d 760 (No. 01-2691-CR).

       I have carefully examined Attachment B from the affidavit in support of the application for a search warrant in this case and Attachment B from Schaefer: There is no substantive difference between the two, the only reasonable inference is that Attachment B in this case is an exact copy of Attachment B in Schaefer. Appendix for Appellant at 134-35, Schaefer, 266 Wis. 2d 719.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Disciplinary Proceedings Against James A. Maloney, Attorney at Law: Office of Lawyer Regulation, Complainant, v. James A. Maloney, Respondent.
    Supreme Court

      No. 04-1763-D.

      Decided September 1, 2004.

    2004 WI 122
    (Also reported in 686 N.W.2d 148.)
   The Court entered the following order on this date:

On July 1, 2004, the Office of Lawyer Regulation (OLR) filed a disciplinary complaint against Attorney James A. Maloney asking this court to impose reciprocal discipline identical to that imposed on him by the Illinois Supreme Court. That court struck Attorney Maloney's name from the Roll of Attorneys in that state based upon his disbarment by consent. On July 6, 2004, this court issued an order to show cause directing Attorney Mal-oney to show cause in writing by August 1,2004 why the imposition of the identical discipline imposed by the Illinois Supreme Court would be unwarranted. Attorney Maloney responded with a petition for consensual license revocation under SCR 22.19 stating that he cannot successfully defend against the allegation that reciprocal, identical discipline should be imposed.

Attorney Maloney was admitted to practice law in Wisconsin and Illinois in 1992. In 2002, his Wisconsin law license was suspended for failure to pay annual State Bar dues. In 2003, his Wisconsin law license was suspended for failing to comply with continuing legal education requirements and remains suspended at this time.

The disbarment in Illinois resulted from misconduct involving: (1) the conversion of approximately $39,000 in client funds; (2) the neglect of various client matters which included in one instance the submission to the client of a fraudulent court order to conceal his inaction; (3) the failure to refund to a client $500 in unearned fees; and (4) a conflict of interest with a client with whom he used cocaine and engaged in a sexual relationship. Pursuant to OLR's complaint, Attorney Maloney also failed to notify it of his Illinois disbarment within 20 days of its effective date in violation of SCR 22.22(1).

SCR 22.22(3) provides that this court shall impose the identical discipline imposed by another state unless the procedure in the other jurisdiction was so lacking in notice or opportunity to be heard as to constitute a due process violation; there was such an infirmity of proof establishing the misconduct that this court should not accept as final the misconduct findings; or the misconduct justifies substantially different discipline here. Neither OLR nor Attorney Maloney contend, nor does this court find, that any of these three exceptions exist. In fact, Attorney Maloney's petition for consensual license revocation in response indicates that he has no successful defense to reciprocal discipline.

Accordingly,

IT IS ORDERED that the petition for consensual license revocation, based on the complaint of OLR for reciprocal discipline, is granted;

IT IS FURTHER ORDERED that the license of James A. Maloney to practice law in the State of Wisconsin is revoked, effective the date of this order;

IT IS FURTHER ORDERED that this revocation does not affect the existing suspensions for failure to pay dues to the State Bar of Wisconsin or failure to comply with CLE requirements which would also have to be satisfied in order for his license to practice law in Wisconsin to be reinstated; and

IT IS FURTHER ORDERED that he shall comply, if he has not already done so, with the requirements of SCR 22.26 pertaining to activities following revocation.


author: PER CURIAM.

text:
    Chris Gentilli, Petitioner-Appellant, v. Board of the Police and Fire Commissioners of the City of Madison, Respondent-Respondent, Fire Chief Debra H. Amesqua, Intervenor-Respondent.
    Supreme Court

      No. 02-3208.

      Decided October 11, 2004.

    2004 WI 124
    (Also reported in 688 N.W.2d 653.)
   PER CURIAM.

¶ 1. The motion for reconsideration is denied, with $50.00 costs.

¶ 2.

BUTLER, LOUIS B., JR., J., did not participate.


text:
    In the Matter of Disciplinary Proceedings Against Leslie J. Webster, Attorney at Law. Office of Lawyer Regulation, f/k/a Board of Attorneys Professional Responsibility, Complainant, v. Leslie J. Webster, Respondent.
    Supreme Court

      No. 98-0677-D.

      Decided October 19, 2004.

    2004 WI 127
    (Also reported in 687 N.W.2d 739.)
   The Court entered the following order on this date:

Leslie J. Webster's license to practice law in Wisconsin was suspended on January 21, 1998, by this court for two years following his felony conviction in federal court on the charge of aiding and abetting a fraudulent concealment of a debtor's property from a bankruptcy trustee. In re Disciplinary Proceedings Against Webster, 217 Wis. 2d 371, 577 N.W.2d 21 (1998).

On July 11, 2002, this court denied Webster's petition for reinstatement of his license consistent with the recommendation of the referee appointed in that earlier matter. In re Disciplinary Proceedings Against Webster, 2002 WI 100, 255 Wis. 2d 323, 647 N.W.2d 831.

Subsequently, on June 25, 2003, Webster filed this second petition for reinstatement and Timothy L. Vocke was appointed as referee. After a public hearing, Referee Vocke filed his report and recommendation in this court on June 23, 2004. The referee set forth specific findings of fact and conclusions of law and stated that Webster had satisfied his burden under SCR 22.31 to demonstrate by clear, satisfactory and convincing evidence that he had the moral character to practice law in this state, that his resumption of the practice of law would not be detrimental to the administration of justice or subversive to the public interests, and that he had fully complied with the terms of his suspension and the requirements of SCR 22.26. By memorandum dated March 26, 2004, the Board of Bar Examiners has recommended Webster's reinstatement provided that he complies with 2004-2005 CLE requirements by reporting an additional 30.0 approved hours, including 3. hours EPR; or by electing the exemption available at SCR 31.04(2) on the CLE Form 1 that will be due for the 2004-2005 reporting period.

This court now accepts Referee Vocke's findings of fact, conclusions of law and recommendation.

IT IS ORDERED that the license to practice law of Leslie J. Webster be reinstated effective the date of this order provided that he comply with the CLE requirements outlined above.

IT IS FURTHER ORDERED that within six months of the date of this order, Leslie J. Webster pay the costs of this proceeding now totaling $5375.79. If the costs are not paid by that date, and absent a showing to this court of his inability to pay the costs, the license of Leslie J. Webster to practice law in Wisconsin shall be suspended until further order of this court.

WILCOX, J., did not participate.

       The court is aware that Webster has recently been charged with two misdemeanors, that he has pled not guilty, and that a trial date has been set. This order granting Webster's petition for reinstatement should not be interpreted as reflecting the court's view regarding Webster's guilt or innocence on the pending charges. We note that under Supreme Court rules, if an attorney has been found guilty or is convicted of a serious crime, the court may summarily suspend the attorney's license to practice law pending final disposition of a disciplinary proceeding. See SCR 22.20.


text:
    In the Matter of Disciplinary Proceedings Against Hans K. Ribbens, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Hans K. Ribbens, Respondent.
    Supreme Court

      No. 03-1039-D.

      Decided October 19, 2004.

    2004 WI 126
    (Also reported in 687 N.W.2d 738.)
   The Court entered the following order on this date:

Pending before this court is a petition for consensual license revocation filed by Attorney Hans Karl Ribbens pursuant to SCR 22.19(1). A referee's report and recommendation advocating revocation is also before the court. Attorney Ribbens did not appeal that report and recommendation. Attorney Ribbens' license to practice law has been under suspension since June 11, 2002.

By order dated May 14, 2004, this court asked the parties to respond to the question whether restitution was warranted in this matter. The OLR filed a response on May 28, 2004, indicating that it had revised its position and now recommends this court order restitution, as follows: to the Client Security Fund in the amount, of $31,070.00; and to certain clients, as follows: to B.J., in the amount of $600.00; to EB. in the amount of $2,450.00; to K.W. in the amount of $450.00; and to C.W. in the amount of $225.00. Attorney Ribbens did not file a response.

In view of the OLR's revised recommendation, this court afforded Attorney Ribbens another opportunity to respond to this matter. By order dated August 4, 2004, Attorney Ribbens was directed to show cause, in writing, why this court should not approve the OLR's revised recommendations with respect to restitution and costs. Attorney Ribbens did not file any response and we deem he has waived any objection to the OLR's revised recommendations. Therefore,

IT IS ORDERED that the referee's report and recommendation is adopted and the petition for consensual license revocation filed by Attorney Hans Karl Ribbens is granted; Attorney Hans Karl Ribbens' license to practice law in Wisconsin is revoked effective the date of this order.

IT IS FURTHER ORDERED that Attorney Hans Karl Ribbens comply with the provisions of SCR 22.26 concerning duties of a person whose license to practice law has been revoked.

IT IS FURTHER ORDERED that within 60 days of the date of this order Attorney Hans Karl Ribbens pay to the OLR the costs of the proceeding.

IT IS FURTHER ORDERED that the OLR's revised recommendations with respect to restitution are adopted and Attorney Hans Karl Ribbens is directed to make restitution to the Client Security Fund and to the clients, as set forth herein, within 60 days of the date of this order.


text:
    In the Matter of Disciplinary Proceedings Against Milton D. Schierland, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Milton D. Schierland, Respondent.
    Supreme Court

      No. 04-2487-D.

      Decided October 19, 2004.

    2004 WI 140
    (Also reported in 688 N.W.2d 653.)
   The Court entered the following order on this date:

Attorney Milton D. Schierland has filed a petition for consensual license revocation under SCR 22.19. His Wisconsin law license was suspended on August 2, 2004 based on a United States District Court criminal conviction for filing a false tax return, in violation of Title 26, United States Code § 7206(1).

Attorney Schierland submits under SCR 22.19(2) that he cannot successfully defend against the misconduct allegations, which include the Office of Lawyer Regulation's (OLR) assertion that his conviction establishes conduct that reflects adversely on his honesty, trustworthiness or fitness as a lawyer in other respects, contrary to SCR 20:8.4(b).

The OLR supports Attorney Schierland's petition for consensual license revocation.

IT IS ORDERED that the petition for consensual license revocation is granted.

IT IS FURTHER ORDERED that the license of Milton D. Schierland to practice law in Wisconsin is revoked effective the date of this order.

IT IS FURTHER ORDERED that Milton D. Schier-land shall comply with the requirements of SCR 22.26 relating to activities following revocation.


text:
    In the Matter of Disciplinary Proceedings Against Larry Farris, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Larry Farris, Respondent.
    Supreme Court

      No. 04-1964-D.

      Decided October 26, 2004.

    2004 WI 125
    (Also reported in 688 N.W.2d 231.)
   PER CURIAM.

¶ 1. This case is before this court under SCR 22.12 on a stipulation between the parties, Attorney Larry Farris and the Office of Lawyer Regulation (OLR). The stipulation consists of Attorney Farris's admission of the facts and misconduct alleged by the OLR and his agreement to the level of discipline that the OLR is seeking.

¶ 2. We accept the stipulation and determine that the seriousness of Attorney Farris's misconduct warrants the imposition of the recommended 60-day license suspension.

¶ 3. Attorney Farris was admitted to the practice of law in Wisconsin in 1973. He has no prior disciplinary history except for license suspensions in 1985 and 1990 for noncompliance with Continuing Legal Education (CLE) requirements.

¶ 4. A third such license suspension on June 3, 2002, is at the heart of the current proceeding. Attorney Farris sought reinstatement on July 25, 2002, from that suspension. He indicated in his petition that he had only appeared in a small claims matter during the period of suspension. Shortly thereafter during a telephone conversation with OLR personnel, he similarly did not allude to any other acts that would constitute the practice of law during his suspension. However, OLR later determined that during the period of suspension Attorney Farris had actually participated in 11 legal matters either by making a court appearance or by signing and/or filing court documents.

¶ 5. As a result of this misconduct, Attorney Far-ris initially entered a diversion/alternative to discipline program under SCR 22.10 on September 20, 2002, during which he was not to be practicing law. However, OLR later determined that during this program Attorney Farris had actually participated in another 12 legal matters. Attorney Farris was reinstated to the practice of law on October 6, 2003. During OLR's subsequent investigation of his prior unauthorized practice he repeatedly gave an incomplete report of its extent.

¶ 6. Attorney Farris and the OLR have stipulated that Farris committed the following misconduct.

¶ 7. First, he violated SCR 31.10(1) by engaging in the practice of law while his state bar membership was suspended for a CLE violation which, in turn, is designated misconduct under SCR 20:8.4(f).

¶ 8. Second, he violated SCR 20:8.4(c), prohibiting conduct involving dishonesty, fraud, deceit or misrepresentation, by failing to disclose in his July 2002 petition for reinstatement the exact extent of his prior unauthorized practice.

¶ 9. Third, he violated SCR 22.03(6), prohibiting a willful failure to provide information to the OLR during an investigation which, in turn, is designated misconduct under SCR 20:8.4(f).

¶ 10. The OLR submits that a 60-day suspension is appropriate. It notes there are similar cases that range between a public reprimand and a 90-day suspension. The OLR submits this case is particularly similar to In re Disciplinary Proceedings Against Grady, 2003 WI 144, 267 Wis. 2d 115, 671 N.W.2d 649, where a 90-day license suspension was imposed because the attorney had improperly practiced for two years. The OLR submits that a shorter suspension here is appropriate because the period of unauthorized practice was less, Attorney Farris has no prior discipline other than CLE matters, and he has been remorseful and apologetic. At the same time, the OLR submits that a suspension of some length is warranted because Attorney Farris is an experienced attorney who should have been aware of his professional obligations and because the extent of his unauthorized practice was not insignificant.

¶ 11. The parties advise the court that the terms of this stipulation were not bargained for or negotiated between the parties. Attorney Farris admits the facts and misconduct alleged by the OLR and agrees to the level of discipline that the OLR seeks. There is no indication that he does not fully understand the misconduct allegations, the ramifications should the court impose the stipulated level of discipline, his right to contest the matter including consultation with retained counsel, and that his entry into this stipulation is knowing and voluntary.

¶ 12. In conclusion, we accept the stipulation of the parties. Attorney Farris's misconduct represents a serious failure to comply with the specified Rules of Professional Conduct. Furthermore, the level of discipline requested by the OLR is appropriate for this misconduct.

¶ 13. IT IS ORDERED that the license of Attorney Larry Farris to practice law in Wisconsin is suspended for a period of 60 days, effective November 30, 2004.

¶ 14. IT IS FURTHER ORDERED that Attorney Larry Farris comply with the provisions of SCR 22.26 concerning the duties of an attorney whose license to practice law has been suspended.

       SCR 22.12 provides: Stipulation.
      (1) The director may file with the complaint a stipulation of the director and the respondent to the facts, conclusions of law regarding misconduct, and discipline to be imposed. The supreme court may consider the complaint and stipulation without the appointment of a referee.
      (2) If the supreme court approves a stipulation, it shall adopt the stipulated facts and conclusions of law and impose the stipulated discipline.
      (3) If the supreme court rejects the stipulation, a referee shall be appointed and the matter shall proceed as a complaint filed without a stipulation.
      (4) A stipulation rejected by the supreme court has no evidentiary value and is without prejudice to the respondent's defense of the proceeding or the prosecution of the complaint.

       SCR 31.10(1) provides:
      (1) If a lawyer fails to comply with the attendance requirement of SCR 31.02, fails to comply with the reporting requirement of SCR 31.03(1), or fails to pay the late fee under SCR 31.03(2), the board shall serve a notice of noncompliance on the lawyer. This notice shall advise the lawyer that the state bar membership of the lawyer shall he automatically suspended for failing to file evidence of compliance or to pay the late fee within 60 days after service of the notice. The board shall certify the names of all lawyers so suspended under this rule to the clerk of the supreme court and to each judge of a court of record in this state. A lawyer shall not engage in the practice of law in Wisconsin while his or her state bar membership is suspended under this rule.

       SCR 20:8.4(f) provides: "It is professional misconduct for a lawyer to: (f) violate a statute, supreme court rule, supreme court order or supreme court decision regulating the conduct of lawyers."

       SCR 20:8.4(c) provides: "It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation."

       SCR 22.03(6) provides: "(6) In the course of the investigation, the respondent's wilful failure to provide relevant information, to answer questions fully, or to furnish documents and the respondent's misrepresentation in a disclosure are misconduct, regardless of the merits of the matters asserted in the grievance."


author: PER CURIAM. SHIRLEY S. ABRAHAMSON, C.J.

text:
    Yvette M. Maurin, as Personal Representative of the Estate of Shay Leigh Maurin, deceased, Plaintiff-Respondent-Cross-Appellant, Yvette M. Maurin, Individually and as Personal Representative of the Estate of Shay Leigh Maurin, and Joseph Maurin, Plaintiff-Respondent, Quad/Graphics, Inc., Plaintiff, v. Gordon Hall, M.D., Physicians Insurance Company of Wisconsin, Inc., and Patients Compensation Fund, Defendants-Appellants-Cross-Respondents.
    Supreme Court

      No. 00-0072.

      Decided October 29, 2004.

    2004 WI 129
    (Also reported in 688 N.W.2d 655.)
   PER CURIAM.

¶ 1. The motion for reconsideration is denied, with $50.00 costs.

¶ 2. The motion filed by the Litigation Section of the State Bar to file an amicus memorandum brief and statement in support of the motion for reconsideration is granted.

¶ 3.

LOUIS B. BUTLER, JR., J., did not participate.

SHIRLEY S. ABRAHAMSON, C.J.

¶ 4. {dissenting) . I continue my dissent because in my opinion the court has not acted fairly or wisely.

¶ 5. The court's procedure in the present case goes directly to its institutional integrity. As was stated in the concurrence to the majority opinion, the majority decided the case on an issue not raised, briefed or argued by the parties.

¶ 6. The motion for reconsideration is based on the public good derived from an appellate process that ensures a full hearing of adversarial perspectives. The fair way to conduct judicial business is to allow the parties (and any amicus) an opportunity to dispute a rationale initiated and relied upon by the court.

¶ 7. If the adversarial appellate process is defective, and I think it was in the instant case, the process not only poses a threat to the adversarial system and to institutional integrity but also substantially increases the likelihood the court will reach a wrong decision on the merits. The motion for reconsideration raises important considerations not contemplated in the majority opinion.

¶ 8. For the reasons set forth, I would set this case for re-argument. I dissent from the denial of a motion for reconsideration.

¶ 9. I am authorized to state that Justice N. PATRICK CROOKS joins this dissent.


text:
    Arthur T. Donaldson, Plaintiff-Respondent-Petitioner, v. Board of Commissioners of Rock-Koshkonong Lake District, Defendant-Appellant.
    Supreme Court

      No. 01-3396.

      Decided October 29, 2004.

    2004 WI 130
    (Also reported in 688 N.W.2d 653.)
   PER CURIAM.

¶ 1. The motion for reconsideration is denied, with $50.00 costs.

¶ 2.

LOUIS B. BUTLER, JR., J., did not participate.


text:
    Ralph E. Beecher, Plaintiff-Appellant, v. Labor & Industry Review Commission, Outokumpu Copper Kenosha, Inc. and Fremont Indemnity Co., Insurer, c/o Casualty Insurance, Defendants-Respondents-Petitioners.
    Supreme Court

      No. 02-1582.

      Decided October 29, 2004.

    2004 WI 131
    (Also reported in 688 N.W.2d 654.)
   PER CURIAM.

¶ 1. The motion for reconsideration is denied without costs.

¶ 2.

LOUIS B. BUTLER, JR., J., did not participate.

SHIRLEY S. ABRAHAMSON, C.J.

¶ 3. (,dissenting). The Labor and Industry Review Commission (LIRC) does not ask the court to change its mandate. It asks the court to reconsider that part of its opinion holding that judicial review of the agency decision is de novo. In the alternative LIRC seeks an opportunity to brief the matter of the appropriate standard of review.

¶ 4. Although the standard of review was briefed, neither party had the opportunity to brief the novel standard of review the majority opinion adopted. Once again the court bases its opinion on a matter not raised or argued by the parties and fails to give the parties a chance to be heard. This failure of the appellate process goes directly to our institutional integrity, contravenes our adversarial system, and increases the likelihood that the court will err. See also my dissent in the reconsideration of Maurin v. Hall, 2004 WI 129, 276 Wis. 2d 18, 688 N.W.2d 655.

¶ 5. LIRC argues that the new standard of review has detrimental policy implications, is confusing, and will lead to more litigation and more requests for judicial review.

¶ 6. LIRC has presented several important considerations that the majority opinion does not consider. I agree with LIRC that negative consequences result if the court adheres to the standard of review presented in the majority opinion.

¶ 7. I would reconsider the discussion of the standard of review, and I therefore dissent from the denial of the motion for reconsideration and the request for briefing.

¶ 8. The only saving grace is, in my opinion, that the court will not follow the standard of review adopted in the majority opinion. I believe the majority decision will have the effect of a railroad ticket, just good for one ride on one day. If the court and litigants are wise, they will distinguish and disregard this "new standard of review" in future cases.

¶ 9. I am authorized to state that Justice ANN WALSH BRADLEY joins this dissent.


text:
    Hutchinson Technology, Inc., Petitioner-Appellant-Petitioner, v. Labor and Industry Review Commission and Susan Roytek, Respondents-Respondents.
    Supreme Court

      No. 02-3328.

      Decided October 29, 2004.

    2004 WI 132
    (Also reported in 688 N.W.2d 654.)
   PER CURIAM.

¶ 1. The motion for reconsideration is denied, with $50.00 costs.

¶ 2.

LOUIS B. BUTLER, JR., J., did not participate.


text:
    State of Wisconsin ex rel. Michael J. Thorson, Petitioner-Appellant-Petitioner, v. David H. Schwarz, Administrator, Division of Hearing & Appeals, Respondent-Respondent.
    Supreme Court

      No. 02-3380.

      Decided October 29, 2004.

    2004 WI 133
    (Also reported in 688 N.W.2d 654.)
   PER CURIAM.

¶ 1. The motion for reconsideration is denied.

¶ 2.

LOUIS B. BUTLER, JR., J., did not participate.


text:
    Village of Trempealeau, Plaintiff-Respondent, v. Mike R. Mikrut, Defendant-Appellant-Petitioner.
    Supreme Court

      Nos. 03-0534 through 03-0553.

      Decided October 29, 2004.

    2004 WI 135
    (Also reported in 688 N.W.2d 656.)
   PER CURIAM.

¶ 1. The motion for reconsideration is denied, with $50.00 costs.

¶ 2.

JON E WILCOX and LOUIS B. BUTLER, JR., J.J., did not participate.


author: PETERSON, J.

text:
    Catherine D. Noonan and Daniel A. Noonan, Plaintiffs-Appellants, v. Northwestern Mutual Life Insurance Company, Doe A, Doe B, Doe C, Insurer X, Insurer Y, and Insurer Z, Defendants-Respondents.

    Court of Appeals

      No. 03-1432.

      Oral argument April 22, 2004.

    Decided June 22, 2004.

    2004 WI App 154
    (Also reported in 687 N.W.2d 264.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of George P. Kersten, E. Cam-pion Kersten and Kenan J. Kersten oí Kersten & McKin-non, S.C., Milwaukee; Mark B. Pollack and Maria S. Lazar of Galanis, Pollack & Jacobs, S.C., Milwaukee; and K. Scott Wagner of Hale & Wagner, S.C., Milwaukee. There was oral argument by George P Kersten.

    On behalf of the defendants-respondents, the cause was submitted on the brief of Eric J. Van Vugt, Daniel E. Conley and Cristina D. Hemandez-Malaby of Quarles

      & Brady LLP, Milwaukee. There was oral argument by Eric J. Van Vugt.

    Before Cane, C.J, Peterson and Higginbotham, JJ.

       Petition to review denied 9-1-2004.

   PETERSON, J.

¶ 1. Catherine and Daniel Noonan own annuity policies with Northwestern Mutual Life Insurance Company. They sued Northwestern, claiming breach of contract and breach of fiduciary duty. Their complaint alleges that beginning in 1985, Northwestern unilaterally changed the way it distributes its surplus profit to annuity policyholders. According to the Noonans, instead of equitably sharing its annual surplus profit as required by the annuity policies and by statute, Northwestern has paid them only interest from a short-term bond account.

¶ 2. The trial court dismissed the Noonans' complaint for failure to state a claim. We conclude the policies entitle the Noonans to receive dividends based on the annual surplus of the company. Because the complaint alleges Northwestern failed to pay dividends on that basis, we further conclude the Noonans have stated claims for breach of contract and breach of fiduciary duty. Accordingly, we reverse the judgment and order dismissing the complaint.

BACKGROUND

¶ 3. For purposes of a motion to dismiss, the allegations of a complaint are taken as true. See Town of Eagle v. Christensen, 191 Wis. 2d 301, 311-12, 529 N.W.2d 245 (Ct. App. 1995). The Noonans' complaint states that they own deferred annuity contracts issued by Northwestern. They purchased the annuities in 1976. The annuities are "participating" and the contracts originally stated:

This policy shall share in the divisible surplus, if any, of the Company. This policy's share shall be determined annually and credited as a dividend. Payment of the first dividend is contingent upon payment of the premium or premiums for the second policy year and shall be credited proportionately as each premium is paid. Thereafter, each dividend shall be payable on the policy anniversary.

¶ 4. In 1983, some policyholders, including one of the Noonans, approved an amendment to their annuity contracts. The amendment provided that annual dividends would be computed based on net value after deducting policy loans:

This policy will share in the divisible surplus of the Company. This surplus is determined each year. The policy's share will be credited as a dividend on the policy anniversary. This dividend will reflect the mortality, expense and investment experience of the Company and will be affected by any policy indebtedness during the policy year.

¶ 5. Until 1985, dividends were paid based on Northwestern's overall financial performance measured by the return on a general account portfolio of investments. These included securities, real estate, business enterprises and other investments.

¶ 6. In 1985, Northwestern changed the way it distributed dividends to annuity pohcyholders. Northwestern created a segmented account invested in short-term bonds. Owners of annuities then received a share of interest earned on the short-term bonds only. The Noon-ans learned of the change in 2000 and commenced this action against Northwestern and its officers and directors.

¶ 7. As its first claim, the complaint alleges that Northwestern breached the annuity contracts by ex-eluding the Noonans from participation in the divisible surplus of the company. The complaint states the annuities' growth and value were reduced as a result of Northwestern's change.

¶ 8. As its second claim, the complaint alleges that Northwestern, as well as its officers and directors, breached their fiduciary duty to the Noonans. This claim is based on Northwestern's failure to (1) include annuity policyholders in the divisible surplus after 1985 and (2) notify policyholders of the 1985 change.

¶ 9. Northwestern moved to dismiss the complaint, arguing the Noonans had failed to state a claim. The trial court granted the motion and dismissed the complaint.

DISCUSSION

¶ 10. A motion to dismiss for failure to state a claim tests whether the complaint is legally sufficient to state a claim for which relief may be granted. Doe v. Archdiocese of Milwaukee, 211 Wis. 2d 312, 331, 565 N.W.2d 94 (1997). The legal sufficiency of the complaint is a question of law that this court reviews independently. Wausau Tile, Inc. v. County Concrete Corp., 226 Wis. 2d 235, 245, 593 N.W.2d 445 (1999). In examining the legal sufficiency of the complaint, we assume that the facts alleged are true. Id. We will affirm an order dismissing a complaint for failure to state a claim if it appears that no relief can be granted under any set of facts that the plaintiff could prove in support of the allegations. Quesenberry v. Milwaukee County, 106 Wis. 2d 685, 690, 317 N.W.2d 468 (1982).

A. Breach of Contract

¶ 11. The Noonans first claim that Northwestern breached the annuity contracts. They contend the plain language of the contracts gives them a right to "share in the divisible surplus of the Company." They allege that the contracts provide that their "share shall be determined annually and credited as a dividend." For example, the Noonans point to the 1983 amendment which states the dividend shall reflect "the mortality, expense and investment experience of the Company ...." Thus, the Noonans state their dividends should reflect their fair share of Northwestern's profits and long-term growth. Furthermore, the Noonans emphasize that the dividends are to be based on "the" divisible surplus of the company, meaning there is only one divisible surplus. The Noonans claim they have been excluded from sharing in the annual divisible surplus because they only have received interest from a separate short-term bond account.

¶ 12. The Noonans contend this meaning of the annuity contracts is supported by Wis. Stat. § 632.62— the statute governing these policies. They start with § 632.62(l)(b), which states that, with exceptions not applicable here, mutual insurance companies may issue only "participating policies." Then, § 632.62(2) provides:

Every participating policy shall by its terms give its holder full right to participate annually in the part of the surplus accumulations from the participating business of the insurer that are to be distributed.

The surplus accumulation to be distributed is determined according to § 632.62(4)(b):

Every insurer doing a participating business shall annually ascertain the surplus over required reserves and other liabilities. After setting aside such contingency reserves as may be considered necessary and be lawful, such reasonable nondistributable surplus as is needed to permit orderly growth, making provision for the payment of reasonable dividends upon capital stock and such sums as are required by prior contracts to be held on account of deferred dividend policies, the remaining surplus shall be equitably apportioned and returned as a dividend to the participating policyholders or certificate holders entitled to share therein.

¶ 13. The Noonans assert they are participating policyholders. By the terms of the statute, they claim they are entitled to an equitable apportionment of the annual remaining surplus. This is also what they contend they are promised by their policies: "This policy will share in the divisible surplus of the Company" and the "share shall be determined annually and credited as a dividend." Yet they received their dividend from a short-term bond account only, rather than from an equitable apportionment made after the annual divisible surplus was determined.

¶ 14. Northwestern does not deny that the annuity policyholders have a right to share in the divisible surplus. However, it maintains that the returns on short-term bonds are a share of the divisible surplus. Northwestern contends that it is following the statutory mandate. Instead of apportioning after the divisible surplus is determined, it merely decides beforehand the amount to which annuity policyholders are entitled. Northwestern argues that making the apportionment beforehand is no different than making it after the divisible surplus is determined.

¶ 15. Northwestern claims the breach of contract claim is really about how it apportions its divisible surplus, not about the determination of the divisible surplus. It contends that its apportionment is protected by the business judgment rule. In Einhorn v. Culea, 2000 WI 65, ¶ 19, 235 Wis. 2d 646, 612 N.W.2d 78, the supreme court held that judicial review of internal corporate business decisions is unavailable for informed good faith decisions made in the honest belief that the actions taken were in the corporation's best interests. The Noonans respond that the business judgment rule is a defense, not something that can be considered on a motion to dismiss a complaint.

¶ 16. We conclude that whether the business judgment rule applies at this stage is irrelevant. In our view, the Noonans' breach of contract claim is not simply about apportionment of the divisible surplus. Rather, it is founded on Northwestern's decision to predetermine the source of the annuities' dividend — the short-term bond fund — irrespective of the overall divisible surplus.

¶ 17. The annuity contracts and the statute are unambiguous. Northwestern does not argue otherwise. The contracts state that annuity policyholders "will share in the divisible surplus of the Company" and the "share shall be determined annually and credited as a dividend." Wisconsin Stat. § 632.62(4)(b) mandates how the divisible surplus is to be determined. Every year Northwestern must (1) ascertain the surplus over required reserves and liabilities and (2) subtract necessary contingency reserves, funds for orderly growth, dividends for capital stock and sums required by prior contracts. Id. After the surplus is determined, then and only then must Northwestern decide how to equitably apportion the surplus. Id. Here, Northwestern made the allocation to annuity policyholders before it determined the surplus. This is contrary to the terms of the annuity contracts and the statute. Thus, the Noonans have alleged sufficient facts to state a claim that Northwestern breached the annuity contracts.

B. Breach of Fiduciary Duty

¶ 18. The Noonans claim Northwestern breached its fiduciary duty by (1) preventing the annuity policyholders from sharing in the divisible surplus and (2) failing to disclose the 1985 change to the policyholders. The parties dispute whether Northwestern even owes the Noonans a fiduciary duty in the first place.

¶ 19. Northwestern contends that it does not owe policyholders a fiduciary duty because the relationship between it and the policyholders is that of debtor and creditor. See In re Metro. Life Derivative Litig., 935 F. Supp. 286, 293 (S.D.N.Y. 1996) ("the relationship between a mutual insurer and a policyholder 'is not of a fiduciary nature' but is instead that of a debtor and creditor.") (citation omitted); see also Fidelity & Cas. Co. v. Metropolitan Life Ins. Co., 248 N.Y.S.2d 559, 623 (N.Y.S. 1963) ("As an incident of membership in [a mutual insurance company], the policyholder acquires certain specified proprietary interests therein, but, apart from these, the relationship is not of a fiduciary nature . . . and the relationship between the company and its policyholder is essentially that of debtor and creditor Thus, Northwestern argues the contracts alone define the rights and responsibilities of the parties and any remedy must lie in contract. See Andrews v. Equitable Life Assur. Soc. 124 F.2d 788, 789 (7th Cir. 1941) ("Whatever rights a member of a mutual company has are delineated by the terms of the contract, and come from it alone."); see also Fidelity & Casualty, 248 N.Y.S.2d at 623 (the relationship between the company and the policyholder is "measured by the contractual terms of the policy.").

¶ 20. In addition, annuities do not usually involve a fiduciary relationship. For example, 44 C.J.S. Annuities § 34 (2003) (citation omitted), states that "[t]he relationship of an insurer and an annuitant is not a fiduciary one." Further, 1 Appleman, Insurance Law and Practice § 81 (1981), states, "An annuity contract ordinarily creates a debtor-creditor relationship, and not a trust relationship. ... A company, it has been held, does not stand in a fiduciary relationship to a legally competent annuitant."

¶ 21. However, there is also conflicting authority that would suggest a fiduciary duty does exist. For example, 44 C.J.S. Insurance § 114(c) (1993), states:

The officers and directors of a mutual insurance company stand in a fiduciary relation to the company and its members, and occupy a position of trust. Officers and agents owe reasonable protection to the rights of the members, and they may render themselves liable to the company or its members for gross neglect of duty or for willful wrong in the management of the company and its business. (Citations omitted.)

Further, according to Couch:

Although there is no formal trust relationship, there is a duty imposed upon the company to act in good faith and to observe the rights of the members. This duty is often figuratively described as a duty of trust. Thus, it is said that the funds of a benefit society are trust funds for the members which have been created by their contributions.

3 Lee R. Russ and Thomas F. Segalla, Couch on Insurance § 39:37 (3d ed. 2000) (citation omitted).

¶ 22. Based on our review of the Noonans' complaint and the applicable law in Wisconsin, we conclude that Northwestern does owe annuity policyholders a fiduciary duty. Ordinarily, the relationship between the parties to an annuity contract might be defined solely by the contract, as Northwestern argues. See Andrews, 124 F.2d at 789. That no doubt is due to the nature of a normal annuity. Typically, an annuity is no more than a contract. A person pays a certain sum for the annuity. In return, the issuer of the annuity agrees to pay the annuitant periodic payments, usually for life.

¶ 23. The Noonans' annuities, however, involve more. In addition to the periodic payments of a typical annuity, the complaint alleges that the Noonans' policies provide that they will share in Northwestern's divisible surplus. Furthermore, as we noted earlier, Wis. Stat. § 632.62(4)(b) defines how Northwestern is to determine its annual surplus. The statute then requires that the surplus be "equitably apportioned and returned as a dividend to the participating policyholders . . . ." In other words, Northwestern occupies a position of trust not just to determine the surplus, but to equitably apportion the surplus among all participating policyholders.

¶ 24. "A fiduciary relationship arises from a formal commitment to act for the benefit of another (for example, a trustee) or from special circumstances from which the law will assume an obligation to act for another's benefit." Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Boeck, 127 Wis. 2d 127, 136, 377 N.W.2d 605 (1985). "Manifest in the existence of a fiduciary relationship is that there exists an inequality, dependence ... knowledge of facts involved, or other conditions giving to one an advantage over the other." Production Credit Ass'n v. Croft, 143 Wis. 2d 746, 755-56, 423 N.W.2d 544 (Ct. App. 1988).

¶ 25. Here, the Noonans invested in annuities through Northwestern, and Northwestern has an obligation to act for the Noonans' and other annuity policyholders' benefit. The policyholders are dependent upon Northwestern's investment decisions and are thus in an inferior position to Northwestern. Consequently, Northwestern owes the policyholders a fiduciary duty.

¶ 26. The Noonans' complaint alleges Northwestern breached its fiduciary duty. They claim Northwestern changed the method for calculating dividends, paying them based on a short-term bond account rather than the overall divisible surplus. We interpret this to be a way of contending Northwestern was not "equitably allocating" the surplus. See Lane v. Sharp Packaging Sys., 2001 WI App 250, ¶ 15, 248 Wis. 2d 380, 635 N.W.2d 896 (we liberally construe pleadings when deciding a motion to dismiss). This is sufficient to state a claim for breach of fiduciary duty.

¶ 27. The Noonans also contend Northwestern's individual officers and directors owe annuity policyholders a fiduciary duty. The circuit court concluded that because Northwestern owed no fiduciary duty, there can be no duty by the individual members of the board. Northwestern simply reiterates what the court concluded. Here, as we have concluded, the Noonans have pled sufficient facts that Northwestern owes them a fiduciary duty and that it breached that duty. We also note the authority cited earlier that officers and directors of a mutual insurance company owe a fiduciary duty. See 44 C.J.S. Insurance § 114(c). Therefore, we conclude the Noonans have stated a claim against the individual officers and directors as well.

C. Other issues

¶ 28. Northwestern argues that even if we reverse the trial court on the breach of contract and breach of fiduciary duty claims, the complaint should be dismissed for three other reasons.

1. Primary Jurisdiction

¶ 29. Northwestern contends that the primary jurisdiction doctrine requires the Noonans' claims to be resolved by the Office of the Commissioner of Insurance. The primary jurisdiction doctrine states:

If the issue presented to the court involves exclusively factual issues within the peculiar expertise of the commission, the obviously better course woüld be to decline jurisdiction and to refer the matter to the agency. On the other hand, if statutory interpretation or issues of law are significant, the court may properly choose in its discretion to entertain the proceedings.

Wisconsin Collectors Ass'n, Inc. v. Thorp Fin. Corp., 32 Wis. 2d 36, 45, 145 N.W.2d 33 (1966). Northwestern argues this case involves "highly technical actuarial formulas by which dividends are determined and collected." We disagree. The manner in which dividends are to be determined is provided by Wis. Stat. § 632.62(4)(b). The Noonans claim Northwestern violated this statute. Thus, this case involves statutory and contract interpretation, which fall within the province of the court.

¶ 30. Furthermore, resolution of this argument would require us to look outside the pleadings. Our review of a motion to dismiss is limited to the allegations in the complaint. See Lane, 248 Wis. 2d 380, ¶ 15 (on a motion to dismiss we are concerned only with the legal sufficiency of the complaint).

2, Statute of Limitations

¶ 31. Northwestern argues the statute of limitations bars the contract claim. Wisconsin Stat. § 893.43 states that the statute of limitations for a breach of contract action is six years. Northwestern claims that any breach occurred in 1985 when the change was made. Therefore, Northwestern argues the statute of limitations had run well before the Noonans filed this action.

¶ 32. The Noonans contend the claim is subject to the continuing violation rule. We agree. The continuing violation rule states, "if the promisor has a continuing duty to perform, generally a new claim accrues for each separate breach. The injured party may assert a claim for damages from the date of the first breach within the period of limitation." Jensen v. Janesville Sand & Gravel Co., 141 Wis. 2d 521, 527, 415 N.W.2d 559 (Ct. App. 1987) (quoting Segall v. Hurwitz, 114 Wis. 2d 471, 491, 339 N.W.2d 333 (Ct. App. 1983)). Thus, if Northwestern breached the contracts, a breach occurred every year it failed to follow Wis. Stat. § 632.62(4)(b) to determine the annuity policyholders' share of the divisible surplus. Because the statute of limitations is six years, the continuing violation rule allows an action for Northwestern's breach of the contracts over the six years prior to filing of this action.

3. Economic Loss

¶ 33. Northwestern contends the economic loss doctrine bars the breach of fiduciary duty claim. The economic loss doctrine states that when a party to a contract suffers only economic loss, the exclusive remedy lies in contract. See Digicorp, Inc. v. Ameritech Co., 2003 WI 54, ¶ 34, 262 Wis. 2d 32, 662 N.W.2d 652.

¶ 34. However, the economic loss doctrine, when it applies, bars recovery in tort for damages resulting from a product not performing as intended, including damages to the product itself or economic losses caused by the defective product. Selzer v. Brunsell Bros., Ltd., 2002 WI App 232, ¶ 33, 257 Wis. 2d 809, 652 N.W.2d 806. The Noonans do not allege a product failed to perform as intended. Nor does Northwestern develop an argument for why the doctrine should be expanded to apply here. See, e.g., Van Lare v. Vogt, Inc., 2004 WI 110, ¶ 2, 274 Wis. 2d 631, 683 N.W. 2d 46 (the economic loss doctrine bars a claim for strict responsibility misrepresentation in a commercial real estate contract). Thus, the economic loss doctrine does not bar the breach of fiduciary duty claim.

By the Court — Judgment and order reversed.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       The parties agreed at oral argument that statutory law is part of the contracts.

       Northwestern made this argument regarding the timing of the apportionment during oral argument. The Noonans did not dispute the timing.

       The Noonans also claim Northwestern violated its fiduciary duty by failing to notify them of the change. Because we are satisfied the alleged change itself states a claim, we express no opinion whether lack of notice is a breach.


author: WEDEMEYER, EJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Robert A. Ragsdale, Defendant-Appellant.

    Court of Appeals

      No. 03-2795-CR.

      Submitted on briefs June 2, 2004.

    Decided July 7, 2004.

    2004 WI App 178
    (Also reported in 687 N.W.2d 785.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Timothy T. Kay of Kay & Kay Law Firm, Brookfield.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general by Shannon Wittenberger, assistant attorney general.
    Before Wedemeyer, EJ., Fine and Curley, JJ.

       Petition to review denied 10-19-2004.

   WEDEMEYER, EJ.

¶ 1. Robert A. Ragsdale appeals from a judgment entered after he pled guilty to one count of felon in possession of a firearm, contrary to Wis. Stat. § 941.29(2) (2001-02). Ragsdale claims the trial court erred in denying his motion to suppress. Because the trial court did not err in denying Ragsdale's suppression motion, we affirm.

BACKGROUND

¶ 2. On August 5, 2001, at approximately 7:30 p.m., Milwaukee police officers arrived at Ragsdale's home to investigate a report that Ragsdale had pointed a shotgun at, and threatened to shoot, his neighbor. The police knocked on Ragsdale's door. Ragsdale denied that he had a gun and invited the police into the living room of his residence. According to police, Ragsdale then consented to allow the police to search for the reported weapon as long as he was present. Ragsdale accompanied Folice Officer Charles Doerrer into a bedroom of the residence and Sergeant Richard Stein remained in the living room with Ragsdale's three-year-old son.

¶ 3. During that time, Stein asked the three-year-old boy whether there were any guns in the house. The boy responded affirmatively and proceeded to pull open a heat register located near the baseboard of the living room. This action plainly exposed a shotgun. When the boy started to reach for the gun, the officer stopped him, fearing for the child's safety. The officers retrieved the shotgun, which was loaded.

¶ 4. Ragsdale was then arrested and charged. He pled not guilty and filed a motion seeking to suppress the evidence. He alleged that he did not give the police consent to enter or search his residence. He argued that if in fact consent was given, it was under coercion or duress. He claimed that the search to discover the gun, including questioning his minor son out of his presence, was unconstitutional.

¶ 5. A hearing on the motion was conducted. The trial court ruled that the officer's version of events was more credible, that no coercion occurred, that Ragsdale consented to entry and search and, therefore, there was no reason to grant the suppression motion. Ragsdale then pled guilty. Judgment was entered. He now appeals.

DISCUSSION

¶ 6. Ragsdale contends that the police questioning of his three-year-old son while he was not present constituted an invalid search leading to the discovery of the gun. He argues that because the search was unconstitutional, the trial court should have granted his motion seeking to suppress the gun. We are not persuaded.

¶ 7. A motion to suppress evidence raises a constitutional question, which presents a mixed question of fact and law. To the extent the trial court's decision involves findings of evidentiary or historical facts, those findings will not he overturned unless they are clearly erroneous. State v. Krier, 165 Wis. 2d 673, 676, 478 N.W.2d 63 (Ct. App. 1991). The application of constitutional and statutory principles to the facts found by the trial court, however, presents a matter for independent appellate review. Id.

¶ 8. Here, it is not disputed that Ragsdale consented to police entry and search of his residence in response to the gun complaint. The dispute is whether the questioning of Ragsdale's son, after Ragsdale left the three-year-old boy alone with Stein in the living room, violated the scope of Ragsdale's consent by deceit or trickery, thereby invalidating the consent to search. See Village of Little Chute v. Walitalo, 2002 WI App 211, ¶ 11, 256 Wis. 2d 1032, 650 N.W.2d 891 ("police cannot use deceit or trickery" to obtain voluntary consent to search); see also State v. Wintlend, 2002 WI App 314, ¶ 3, 258 Wis. 2d 875, 655 N.W.2d 745 (noting the Walitalo reference to "trickery or deceit").

¶ 9. Under the Fourth Amendment, a "search" occurs when law enforcement officials infringe on an expectation of privacy that society considers reasonable. State v. Garcia, 195 Wis. 2d 68, 73, 535 N.W.2d 124 (Ct. App. 1995). The Fourth Amendment, however, does not proscribe all state-initiated searches and seizures; rather, it prohibits only those that are unreasonable. Florida v. Jimeno, 500 U.S. 248, 250 (1991). For a search pursuant to consent to be constitutionally permissible, the consent must be voluntary under the totality of the circumstances and not the product of coercion. State v. Rodgers, 119 Wis. 2d 102, 114, 349 N.W.2d 453 (1984).

¶ 10. Here, Ragsdale contends that questioning his three-year-old son outside of his presence violated the scope of his consent and amounted to coercion. We disagree. Ragsdale consented to permit the search of his home as long as he was present. Ragsdale took one of the officers into the bedroom, leaving the other officer in the living room with his three-year-old son. One who consents to a search "may of course delimit as he chooses the scope of the search to which he consents." Jimeno, 500 U.S. at 252. Ragsdale did not make any attempt to prevent Stein from speaking with his son. He did not tell Stein not to talk to the boy. He did not take the boy with him into the other room. Quite the opposite, he left Stein alone with the boy without any restrictions or conditions at all. Such conduct suggests that Ragsdale did not assert any reasonable expectation of privacy prohibiting Stein from speaking with his son.

¶ 11. Moreover, we are not convinced that Stein's question to the three-year-old even constituted a search. Rather, the question constituted on-the-scene questioning of a potential witness in an ongoing investigation. Ragsdale has not provided, nor are we able to find, any authority prohibiting Stein from speaking with the boy about whether a gun was in the house. Ragsdale limited the scope of his consent to searching the premises only with Ragsdale present. He did not limit the police officers from speaking to his son while he was present. If Stein had asked the boy to show him where the gun was or to get the gun, our conclusion might be quite different because such questions might implicate the scope of Ragsdale's consent. Stein, however, did not conduct any search outside of Ragsdale's presence.

¶ 12. We also are unable to ascertain any indication that Stein's question involved coercion, trickery or deceit, which, if present, may invalidate the consent to search by rendering the consent involuntary. See Walitalo, 2002 WI App 211, ¶ 11. To coerce involves "pressure, threats, or intimidation." American Heritage Dictionary 367 (3d ed. 1992). There is nothing in the record suggesting that Stein pressured or threatened the boy to tell him if there was a gun in the home. There is nothing to suggest that the police officers concocted an underhanded plan for one of them to remain with the son in an attempt to elicit incriminating information to locate the weapon.

¶ 13. Deceit involves using dishonesty or trickery to obtain information. See American Heritage Dictionary at 482. Again, there is nothing in the record indicating that Stein's question to the boy was dishonest or that Stein tricked the boy into talking to him or giving him information, thereby violating the scope of Ragsdale's consent. Rather, the record clearly demonstrates that Stein's question was simple and straightforward: "Are there any guns in here?" Because we have found no evidence of trickery, deceit or coercion, there is no basis to conclude that the scope of Ragsdale's consent was violated on that ground.

¶ 14. Moreover, the questioning of the boy here presents a situation analogous to the safety exceptions set forth in New York v. Quarles, 467 U.S. 649, 654-60 (1984), and its progeny. Quarles set forth a public safety exception to the requirement for Miranda warnings. Id. The Supreme Court held that police were not required to give Miranda warnings to a person whom they reasonably suspect may have access to a weapon before they ask questions designed to locate the weapon and neutralize its danger. Id. at 657. Wisconsin extended the exception to include both a private safety situation and the safety of the police. See State v. Kunkel, 137 Wis. 2d 172, 189, 404 N.W.2d 69 (Ct. App. 1987) (rescue doctrine); State v. Camacho, 170 Wis. 2d 53, 72, 487 N.W.2d 67 (Ct. App. 1992) (Quarles exception applies to safety of police involved), rev'd on other grounds, 176 Wis. 2d 860, 501 N.W.2d 380 (1993). The public policy supporting the safety exceptions rests in the logic that the need to protect life and neutralize volatile situations outweighs the need for the Miranda rules. Camacho, 170 Wis. 2d at 71-72.

¶ 15. Although the instant case does not involve a Miranda challenge, the reasoning underlying the exception still applies. Like Quarles, where the suspect hid the gun, the police here were confronted with a situation where, moments before they arrived, Rags-dale had pointed a shotgun at his neighbor threatening to shoot. They were told by the victim that Ragsdale was in his home, probably trying to hide the gun. When the police went to question Ragsdale, they discovered the young child. Thus, they conducted a search and investigation to determine whether a weapon was present. These circumstances clearly present a public and private safety concern — both for the safety of the victim neighbor and the minor child. It was not unreasonable or improper for Stein to ask the child if there were any guns in the house. This questioning did not constitute a search, did not exceed the scope of Ragsdale's consent, and did not constitute coercion, deceit or trickery.

¶ 16. What happened after Stein's question was solely at the child's own volition. The child proceeded to pull open a heating vent, plainly exposing a shotgun. When the child started to reach for the gun, Stein intervened. At the point in time that the child moved the vent, the gun was in plain view. When contraband is in plain view, police have a basis to seize it. State v. Guy, 172 Wis. 2d 86, 101-02, 492 N.W.2d 311 (1992).

¶ 17. If evidence is discovered in plain view, there is no reason to suppress its introduction at trial. For the plain view doctrine to apply, three requirements must be satisfied. Id. First, the evidence must be in plain view. Second, the police officer must have a lawful right of access to the object. Third, the incriminating character of the object must be immediately apparent, meaning the police must show they had probable cause to believe the object was evidence or contraband. Id. at 101 (citation omitted). Here, all three requirements were met. It is undisputed that Stein had a lawful right of access to the object as he was legally inside the residence. Ragsdale left Stein in the living room with his son without restricting any conversation. Stein did not ask the boy to get the gun or show him where the gun was. Rather, the boy acted on his own volition, resulting in the gun being brought into plain view. Finally, given the purpose of the police being called to the home — that Ragsdale had pointed a shotgun at his neighbor — there certainly was probable cause to believe that the gun was evidence. Consequently, because the plain view doctrine applies, the trial court did not err in denying the motion to suppress.

By the Court. — Judgment affirmed.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       Ragsdale's suppression argument during the hearing in the trial court centered on Ragsdale's contention that he did not give the police consent to enter or search his house. The trial court ruled that Ragsdale did consent to police entry and search subject to the condition that Ragsdale was with police during the search. In his appeal brief, Ragsdale does not challenge the trial court's findings that he consented to police entry and a warrantless search. Rather, Ragsdale contends only that the consent to search was conditioned upon Ragsdale being present, that Ragsdale was not present during Stein's questioning of his three-year-old son, that Stein's questioning amounted to trickery and/or deceit and, as a result, renders the discovery of the shotgun an invalid, unconstitutional search. Accordingly, we address only the issue Ragsdale raises in this appeal, and ¿firm the trial court's findings that Ragsdale consented to police entry and search of his residence.

        Miranda v. Arizona, 384 U.S. 436 (1966).