In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐1323
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
DAVID G. WENZEL,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 15‐cr‐63‐bbc — Barbara B. Crabb, Judge.
____________________
ARGUED APRIL 11, 2017 — DECIDED APRIL 27, 2017
____________________
Before WOOD, Chief Judge, and FLAUM and EASTERBROOK,
Circuit Judges.
FLAUM, Circuit Judge. David G. Wenzel appeals the denial
of his motion to suppress evidence gathered as the result of
search warrants executed on his home. For the following rea‐
sons, we affirm.
2 No. 16‐1323
I. Background
Wenzel occasionally looked after young children at his
Wisconsin home. On March 25, 2015, one mother dropped off
her son in Wenzel’s care. When the mother returned to pick
up her son, she went into the house to use the restroom. Inside
the restroom, she noticed a red light coming from inside a
grated vent and pointing towards the toilet. She pried off the
vent cover and pulled out a video camera wrapped in black
electrical tape. The mother reported this information to the
Rock County Sheriff’s Department. Law‐enforcement officers
checked Wenzel’s criminal history and discovered that he was
on the sex‐offender registry and had been convicted in 1997
of first‐degree sexual assault.
On March 26, 2015, a Rock County detective applied for a
warrant to search Wenzel’s residence. The supporting affida‐
vit described Wenzel’s property and listed several categories
of items the detective believed could be found in connection
with hidden‐camera recordings.1 The affidavit included facts
1 The items authorized by the search included:
Video tapes, camera hardware, film, video recording de‐
vices, DVDs, cellular phones, digital storage devices, pho‐
tographs, photo equipment, Pornographic materials,
computers, (central processing units), computer attach‐
ments, computer monitors, computer scanners, computer
hard drives, and any other computer components used to
generate computer discs or other inscribable media, and
any other storage media such as computer discs, thumb
drives, tapes, CD ROMS, or CD writeables, and books,
materials, and manuals relating to computer operation or
software operation, and any software or passwords nec‐
essary to examine the computer’s readable records, text
No. 16‐1323 3
the detective believed would establish probable cause that
Wenzel had violated Wis. Stat. § 942.09, “Representations de‐
picting nudity,” which prohibits certain clandestine record‐
ings of others.2 The affidavit detailed the detective’s many
years of law‐enforcement training and experience, including
previous investigations of child‐sex offenses and violations of
§ 942.09; the mother’s firsthand account of discovering the
video camera in Wenzel’s bathroom; the detective’s awareness
that hidden cameras such as Wenzel’s could connect to vari‐
ous recording devices and that such recordings were often
shared on the Internet or stored on hard drives; and Wenzel’s
criminal history and sex‐offender‐registry status. The affida‐
vit requested permission to search Wenzel’s property for re‐
cording‐related items.
The same day, the Rock County Circuit Court issued a
warrant authorizing the search, and officers conducted the
search later that day. On April 2, 2015, law‐enforcement offic‐
ers requested a follow‐on search warrant for evidence of child
pornography, supported by evidence gathered during the
March 26 search.
messaging, Internet chat, E‐mail, web camera images, to
include the contents of any above listed item, or anything
else that would constitute evidence of a crime, to wit:
Representations Depicting Nudity, in violation of Wis‐
consin Statute 942.09 … .
2
Section 942.09 generally prohibits capturing, reproducing, pos‐
sessing, distributing, or exhibiting “an intimate representation without the
consent of the person depicted under circumstances in which he or she
has a reasonable expectation of privacy, if the [defendant] knows or has
reason to know that the person who is depicted does not consent to the
capture of the intimate representation.” Wis. Stat. § 942.09(2).
4 No. 16‐1323
On the basis of evidence collected from those searches, on
May 13, 2015, the government charged Wenzel with two
counts of unlawfully creating child pornography in violation
of 18 U.S.C. § 2251(a). On August 17, 2015, Wenzel moved to
suppress evidence from the March 26 search and all deriva‐
tive evidence. The magistrate judge, on September 23, 2015,
recommended denying Wenzel’s motion and finding that the
warrant was supported by probable cause, was not overly
broad, and in any case was subject to the good‐faith exception.
On October 9, 2015, the district court adopted the recommen‐
dation.
Wenzel pleaded guilty on December 28, 2015, pursuant to
a written plea agreement that reserved his right to appeal the
denial of the motion to suppress. On February 5, 2016, the dis‐
trict court sentenced Wenzel to twenty‐five years’ incarcera‐
tion and twenty years’ supervised release. This appeal fol‐
lowed.
II. Discussion
When reviewing a district court’s decision on a motion to
suppress, we review the court’s factual findings for clear error
and its legal conclusions de novo. United States v. Kelly, 772
F.3d 1072, 1077 (7th Cir. 2014) (citation omitted).
A. Probable Cause
Wenzel first argues that the March 26 warrant was not
supported by probable cause.3 This Court affords “great def‐
erence to the decision of the judge issuing the warrant, and
3 Wenzel does not directly challenge the April 2 warrant, but argues
that the evidence from both searches should be suppressed if the March
26 warrant is determined to be unconstitutional.
No. 16‐1323 5
we will uphold a finding of probable cause so long as the is‐
suing judge had a substantial basis to conclude that the search
was reasonably likely to uncover evidence of wrongdoing.”
United States v. Aljabari, 626 F.3d 940, 944 (7th Cir. 2010) (cita‐
tions and internal quotation marks omitted); see also Illinois v.
Gates, 462 U.S. 213, 236 (1983). Probable cause for a search ex‐
ists when known facts and circumstances would cause a rea‐
sonable person to believe that evidence of a crime will be
found. Ornelas v. United States, 517 U.S. 690, 696 (1996) (cita‐
tions omitted). Courts employ common sense in reading the
supporting affidavit as a whole. See United States v. Quinta‐
nilla, 218 F.3d 674, 677 (7th Cir. 2000) (citation omitted).
The warrant in this case was issued based on an affidavit
supported by an informant’s tip. In such circumstances, courts
consider the totality of the circumstances to determine
whether that information establishes probable cause for the
search, including the following factors:
(1) the extent to which the police have corrobo‐
rated the informant’s statements;
(2) the degree to which the informant has ac‐
quired firsthand knowledge of the events;
(3) the amount of detail provided;
(4) the amount of time between the date of the
events and the application for the search war‐
rant; and
(5) whether the informant personally appeared
before the judge issuing the warrant.
United States v. Gregory, 795 F.3d 735, 741 (7th Cir. 2015) (citing
United States v. Koerth, 312 F.3d 862, 866 (7th Cir. 2002)).
6 No. 16‐1323
The mother who found Wenzel’s hidden camera did not
personally testify before the judge who issued the March 26
warrant. However, the other relevant factors were sufficient
to support a finding of probable cause that Wenzel had vio‐
lated Wis. Stat. § 942.09. The mother provided a detailed, first‐
hand account of the incident in which she had found a hidden
camera wrapped in black electrical tape, placed inside a cov‐
ered vent, and pointed towards the toilet. She also told the
officers that she had left her child at Wenzel’s home to be su‐
pervised by Wenzel. The incident took place on March 25,
2015; and the affidavit, based on the mother’s statement, was
submitted the next day. And in the meantime, law‐enforce‐
ment officers searched Wenzel’s criminal history and learned
that he was on the sex‐offense registry and had been con‐
victed of a first‐degree sexual offense. Together, these facts
were sufficient to give rise to probable cause that Wenzel had
violated Wis. Stat. § 942.09.
B. Overbreadth
Wenzel next argues that the warrant was overbroad in two
ways: It encompassed too many items, and authorized a
search of too much of Wenzel’s property. The Fourth Amend‐
ment requires a warrant to “particularly describ[e] the place
to be searched, and the … things to be seized.” U.S. Const.
amend. IV. Accordingly, “the scope of a lawful search is de‐
fined by the object of the search and the places in which there
is probable cause to believe that it may be found.” Maryland v.
Garrison, 480 U.S. 79, 84 (1987) (internal quotation marks omit‐
ted). To satisfy this requirement, “a warrant must explicate
the items to be seized only as precisely as the circumstances
and the nature of the alleged crime permit.” United States v.
No. 16‐1323 7
Vitek Supply Corp., 144 F.3d 476, 481 (7th Cir. 1998) (citation
omitted).
Wenzel’s main argument is that the detectives who inter‐
viewed the mother should have asked her approximately
twenty‐nine additional questions and narrowed the scope of
the warrant affidavit accordingly. However, courts do not ask
whether a warrant could have been more precise; rather, we
ask whether a warrant was sufficiently precise to satisfy con‐
stitutional requirements. In this case, the warrant listed sev‐
eral concrete categories of items, all of which related to the
capturing, storage, or dissemination of recorded images, or to
law‐enforcement officers’ ability to effectively retrieve stored
images. There is nothing constitutionally problematic in au‐
thorizing a search for all such items when there was probable
cause to believe that a suspect was clandestinely recording
people who used his bathroom, in violation of state laws pro‐
hibiting such recordings.
At oral argument, Wenzel asserted that the warrant, which
authorized searching outbuildings and vehicles on Wenzel’s
property, was also too broad in geographic scope. However,
he did not develop such an argument in his opening brief on
appeal, and so forfeited it. See Wedemeyer v. CSX Transp., Inc.,
850 F.3d 889, 897 (7th Cir. 2017) (citation omitted). Regardless,
the recording‐related items authorized to be seized—ranging
in size from computers to thumb drives—could plausibly
have been found in outbuildings such as sheds, or in Wenzel’s
vehicle. Unlike searching for a stolen lawnmower in a bed‐
room, see Garrison, 480 U.S. at 84 (citing United States v. Ross,
456 U.S. 798, 824 (1982)), the warrant in this case did not au‐
thorize a search for items that could not plausibly be found in
8 No. 16‐1323
the authorized locations. In sum, the warrant’s scope was suf‐
ficiently tailored to the nature of the crime being investigated.
C. Good‐Faith Exception
The government argues that the good‐faith exception
would apply as an alternative ground for denying Wenzel’s
motion to suppress. See United States v. Leon, 468 U.S. 897, 926
(1984). The magistrate judge agreed that the exception would
apply and the district court adopted this recommendation.
Because we hold that the warrant was not unconstitutional,
we need not reach the issue of whether the good‐faith excep‐
tion would apply. We note, however, that Wenzel did not
challenge this alternate ruling on appeal, and he advanced no
arguments that the state‐court judge “abandoned his de‐
tached and neutral role” when he issued the warrant, or that
“the officers were dishonest or reckless in preparing their af‐
fidavit or could not have harbored an objectively reasonable
belief in the existence of probable cause.” Id.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the
district court.