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moneyWhen individuals are involved in criminal activity, the assets related to that criminal activity can often be seized by law enforcement involved in the investigation of the crime. This can include things such as vehicles used to commit a crime, homes or other locations used to stage a crime, and even the money that is collected as a result of the criminal activity.  The seizure of these types of items and property is known as civil forfeiture.

In Cruz-Hernandez v. Fund of $271,080, the Cruz-Hernandez brothers were identified as potential participants in a drug trafficking scheme after a home invasion was reported at the house where they lived. When police arrived at the house, they found a handgun and a small amount of marijuana inside the premises. A drug dog also alerted them to potential drugs inside a vehicle that was parked outside the house. After police obtained a warrant to search the vehicle, they found $271,080 in cash inside but no drugs. Since no drugs were found, the police did not bring charges against the Cruz-Hernandez brothers. However, they did institute a civil forfeiture action to seize the large amount of cash that was discovered. They alleged that the money clearly had been used or would be used to facilitate drug trafficking.

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computerWhen an individual has engaged in the interstate transfer of child pornography, they may open themselves up to both state and federal criminal charges. While a defendant cannot be charged twice for the same crime, a defendant can be sentenced for different crimes that have somewhat overlapping elements. When a defendant is convicted of multiple related crimes, a sentencing judge must determine whether the sentences imposed will be served separately or concurrently (meaning they will be served at the same time). A recent case before the Seventh Circuit Court of Appeals looks at when a judge is required to impose a sentence concurrently and when a judge has the liberty to increase the severity of the punishment by requiring a defendant to serve sentences one after another.

In United States of America v. Schrode, Mr. Schrode was convicted of sexually assaulting his step-daughter, who was four years old at the time. He was sentenced to 18 years imprisonment by the Illinois state courts.  Later that year, the FBI executed a search warrant on his home, believing that Mr. Schrode also possessed child pornography. He was found to have possessed child pornography and transmitted it to other users. A short time afterward, Mr. Schrode’s wife discovered that some of the pornography he possessed included images of his step-daughter and of his sexually assaulting his step-daughter. As a result, he was indicted on four federal charges:  (1) receiving child pornography; (2) producing child pornography of his step-daughter in February 2013; (3) producing child pornography of his step-daughter in March 2013; and (4) possessing child pornography. He pled guilty to all four charges.

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home computerIn order to conduct a constitutional search and seizure of an individual’s property, the Fourth Amendment requires that law enforcement has either probable cause to conduct such a search or consent from the individual who owns the property. Unique issues arise when property is jointly owned by two or more individuals, such as when a landlord and a tenant are both technically owners of an apartment, or when a car is owned by two different individuals. A recent case before the Seventh Circuit considers whether an individual with “authority” over property, but not ownership, can consent to a search that ultimately results in criminal charges against the owner.

In United States v. Wright, police responded to a domestic dispute between Mr. Wright and his ex-girlfriend, Ms. Hamilton. During the investigation of the dispute, Ms. Hamilton referred to Mr. Wright as a “pedophile.” On the next day, investigators specializing in crimes against children contacted Ms. Hamilton to follow up on this comment. Ms. Hamilton explained that Mr. Wright had visited a website called “Jailbait,” which investigators knew often featured images of underage children. The investigators asked Ms. Hamilton if she used the computer that Mr. Wright used, which she did, and they asked for her consent to search it. She agreed. When investigators viewed the computer hard drive, they found child pornography on the computer. Wright was charged with possession of child pornography, and he moved to suppress evidence from the computer search, which he said was obtained without the necessary consent from him. The trial court disagreed, finding that since Hamilton and her children regularly used the computer for family activities, Hamilton had common authority over the computer and could give valid consent for the computer to be searched.

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houseIn recent years, corrections officials have become convinced, despite conflicting studies,  that sex offenders are prone to particularly high rates of recidivism.  In an effort to address concerns that certain circumstances, such as homelessness, accelerate recidivism, many counties have enacted regulations and administrative ordinances imposing various requirements on sex offenders upon their release from prison. For instance, sex offenders may be required to return to their county of residence rather than allowed to move to a new location after prison, and they may be prevented from residing near schools or daycare facilities.  In Brown County, Wisconsin, local officials enacted an ordinance providing that sex offenders who cannot find an approved home that meets these various types of requirements must continue to remain in jail, or prison, during the evenings until a suitable home is located.

While such restrictions are a result of justifiable concerns, they also raise important questions for due process and the liberty rights of offenders. In Werner v. Wall, Mr. Werner raised a constitutional challenge to Brown County’s ordinance, arguing that incarcerating him after his mandatory release date, and until he found a proper home, was a violation of his Eighth Amendment and Fourteenth Amendment rights.  At trial, the individual defendants that he sued, including various correctional officials, moved for summary judgment against his claims, holding that they were barred by qualified immunity. The district court agreed.  Mr. Werner appealed.

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gavelWhen an individual is found guilty of committing a crime, a sentence is not usually automatically imposed. Instead, a separate hearing is scheduled for sentencing and other matters. Leading up to the sentencing hearing, the government will create what is known as a pre-sentencing report, which sets forth the applicable sentencing factors to be considered by the judge and provides a recommendation for what the sentence should be.  While this pre-sentencing report (PSR) focuses primarily on the jail time to be imposed, it also addresses other factors, such as conditions of probation or supervised release, or fines that must be paid. A recent case before the Seventh Circuit looks at PSRs for those convicted of child pornography-related offenses and when objections to PSRs can be made.

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cell phone

When investigating claims of marijuana cultivation or production, police officers typically rely on a wide variety of sources of information to determine whether they have probable cause to execute a search warrant on a certain property or person. Some of those sources are considered inherently more reliable than others. For instance, an eyewitness who reports observing an incident is generally considered to be more reliable than an individual who reports overhearing a conversation possibly related to the incident.  Likewise, known informants with a consistent history of assisting the police are given more weight in a probable cause determination than anonymous informants with little to risk in supplying faulty information. A recent case before the Wisconsin Court of Appeal looks at when, if ever, anonymous tips may reasonably provide probable cause for a search warrant to be executed.

In State v. Linde, Mr. Linde’s home was searched on suspicion of manufacturing of THC and cultivation of marijuana plants. In 2010, Mr. Linde was arrested for growing marijuana plants and possessing paraphernalia at a cabin he owned in Oconto County, Wisconsin.  In 2011, almost a year later, police received an anonymous call that Mr. Linde was again growing marijuana at his residence in Forest County, Wisconsin. The caller did not leave identifying information and stated only that during a recent trip to the residence, he had observed marijuana plants growing there.

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agreementWhen facing criminal charges, defendants always have a choice of whether to plead guilty or not guilty. Often, that choice will be influenced by a plea agreement that the prosecution may have offered to the defendant. In a plea agreement, the prosecutor may try to persuade the defendant to avoid the risk of trial by agreeing to plead guilty with the understanding that the state will recommend a reduced sentence in exchange for the guilty plea. This saves the state the time and expense of trial, and it ensures that the defendant is punished, while protecting the defendant from the possibility of maximum jail time. However, just because the defendant and the prosecution agree to a plea deal does not mean that the court has to accept it. In a recent case before the Seventh Circuit, the court affirmed the rejection of a plea agreement when the district court determined that the sentence agreed to was not sufficiently strict.

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flip phoneIn a time of rapidly changing technology, it can often be difficult for state legislatures and courts to keep up with the various means that sexual predators use to communicate with and lure their victims. Without broad and flexible definitions, state criminal statutes and court decisions can quickly become dated and inapplicable to the current and preferred communication methods.  A recent case before the Supreme Court of Wisconsin looks at how concepts such as “computerized communication systems” can be applied flexibly to allow for the continued prosecution of sexual predators.

In State of Wisconsin v. McKellips, Mr. McKellip was a high school basketball coach hired to coach the girls varsity basketball team at Athens High School. C.H. was one of the players selected for the varsity team. Mr. McKellips began his relationship with C.H. by praising her basketball skills to her mother and calling her on the phone to discuss practices, team strategy, and other basketball issues. While most of these calls were relatively normal, Mr. McKellip ended one call by stating “I love you.” Soon, Mr. McKellip began to call C.H. on her cell phone on a more regular basis. When her parents learned of this, they admonished C.H., telling her to tell Mr. McKellip to call on the home phone.  When C.H. told Mr. McKellip this, he bought her a flip cell phone to use so that he could call and text her. C.H. and Mr. McKellip continued a texting and calling relationship, which eventually progressed into a sexual relationship. This continued until C.H.’s parents discovered the secret cell phone, and she admitted what had been happening.

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restitutionTime spent in prison is not the only punishment that can be applied to defendants who are found guilty of committing a crime.  Defendants may also be required to relinquish certain rights, such as the right to own a firearm, or may be forced to attend classes, such as a DUI class, related to their crime. Additionally, defendants may be required to pay restitution to the victims of their crime, as a small means of attempting to remedy the crime that has occurred.  In child pornography cases, it is often difficult to implement restitution because the victims of the crime may be unidentifiable minors. Recently, however, a child pornography case before the Seventh Circuit dealt with restitution for a widely identified child pornography victim who had been greatly harmed by the sharing of images that involved her.

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subwayAs has been widely reported in news media throughout the country this past year, Jared Fogle, the well-recognized spokesman for Subway sandwiches, was arrested and indicted on child pornography charges. Fogle had previously gained notoriety for his Subway diet, which allegedly helped him to lose a significant amount of weight and led to his frequent appearances on Subway radio and television advertisements.  Fogle’s criminal indictment caught many by surprise, yet his name quickly disappeared from the media. Recently, however, Fogle’s charges and conviction were reviewed by the Seventh Circuit as Fogle sought to appeal various aspects of the trial court proceedings.

In 2015, Fogle’s close friend Russell Taylor was put under surveillance by federal law enforcement after they received a tip that he was soliciting sex from minors.  During the process of investigating Taylor, Fogle quickly became a second subject of concern after it was discovered that he knew about the child pornography that Taylor possessed and had met many of the child victims whom Taylor solicited.  Upon the execution of a warrant to search Fogle’s home, the police discovered that Fogle had his own child pornography collection and that he had actively solicited sex from minors as well.  Fogle was arrested and charged with various criminal counts, including distributing and receiving child pornography, conspiracy to distribute and receive child pornography, and attempting to engage in sexual conduct with a minor. Fogle pled guilty in exchange for the government agreeing not to recommend more than 151 months in prison time.  At sentencing, Fogle requested 60 months, and the government recommended 151 months.  The judge, however, chose to go above the recommended sentencing guidelines for Fogle’s crimes and sentenced him to 188 months for each count, with each sentence to be served concurrently.  Fogle appealed.

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