State v. Robert C. Stryker

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 1, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP692-CR Cir. Ct. No. 2014CF1068

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ROBERT C. STRYKER,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Waukesha County: RALPH M. RAMIREZ and JENNIFER R. DOROW, Judges.
Affirmed.

Before Gundrum, P.J., Neubauer and Kornblum, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2021AP692-CR

¶1 PER CURIAM. Robert C. Stryker appeals a judgment of conviction
for one count of possession of child pornography. He also appeals an order
denying his postconviction motion, in which he alleged that the circuit court
erroneously denied his motion to suppress evidence discovered on his laptop
computer by police after his wife allowed them to search it. He contends his wife
did not have authority to consent to the search. He also contends that his trial
counsel was constitutionally ineffective for failing to seek suppression of a
document discovered on his laptop on the grounds that it was privileged under the
social worker-patient privilege codified in WIS. STAT. § 905.04 (2019-20).1 We
conclude the circuit court properly denied Stryker’s suppression motion and his
postconviction motion. We affirm.

BACKGROUND

¶2 In August 2014, Stryker’s neighbors reported to City of Waukesha
Police that Stryker, then forty-one years old, had tried to kiss their sixteen-year-old
daughter. Stryker’s wife, AS, learned of this incident on August 27 and sent a text
to Stryker telling him to take his belongings and leave their home. Stryker
removed some personal property from their home but left a laptop computer that
he used in the basement. Two days later, Detective Kenny Stucker went to the
home to speak with AS.

¶3 AS told Stucker that Stryker had admitted to her in 2010 that he had
an addiction to child pornography and that he had removed hard drives from his
computer and smashed them after visiting a website monitored by the police. AS

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2021AP692-CR

also told Stucker that Stryker had recently admitted to viewing child pornography
within the past two years during a family counseling session the Strykers attended
after AS filed for divorce in July 2014.

¶4 In response to a question from Stucker, AS indicated there were
multiple computers in the home, including the laptop. The laptop was located in
the children’s play area of the basement. It was not in a locked container and was
accessible to anyone in the home. According to AS, Stryker used the laptop and
AS would sometimes help the children use it to watch Netflix. AS did not use the
laptop except when helping the children with it or when she and Stryker would
review their finances. She had her own computer but could have used the laptop
at any time if she wanted. AS had “complete access” to any files on the laptop and
there were no limitations imposed on her use of the laptop.

¶5 AS retrieved the laptop for Stucker from the basement and turned it
on at his request. She did not have to use a password to get into the computer.
Stucker then reviewed a form with AS, which she signed, authorizing him to take
the computer, “forensically download” its contents, and search them. The form
granted Stucker “permission … to conduct a complete search of [AS’s] …
premises, property, and buildings” and specifically identified the laptop, two
computer hard drives, and another personal computer as items to be searched. It
further gave Stucker permission to take from AS’s home “any letters, papers,
materials … or any other types of property or objects which they desire as
evidence for criminal prosecution in the case or cases under investigation.”
Stucker took the laptop, personal computer, and hard drives and turned them over
to Detective David Feyen to be searched.

3
No. 2021AP692-CR

¶6 Feyen made an image of the laptop’s hard drive and loaded the
image onto a “blank completely wiped hard drive, which was identical in size.”
He then performed a forensic examination of the laptop and located sixty-four
thumbcache images depicting potential child pornography, including five
pornographic images of prepubescent girls. Like the laptop itself, the images were
not password protected, although they were “hidden” and could only be viewed
with specialized software. When asked about his characterization of the
thumbcache files as “hidden,” Feyen explained that “Windows protects us from
destroying the Windows operating system by deleting files that are necessary to
operate the system. So Windows by default hides thumbcaches and other file
systems that it needs to operate so we can’t access them.”

¶7 Feyen also used the image copy of the hard drive to “back the
computer up in time and find documents that had been previously deleted.” One
such document he located was a Microsoft Word document entitled
“Inventory.doc” that required a password to open. At the suppression hearing,
Feyen testified that the password to open the document “was passed on to me by
[AS].” He stated that AS gave the police “a list of generic passwords used by the
family for multiple things, and I was able to enter that password and bypass the
pop-up box.” He did not remember exactly when AS provided the password list,
however, nor the officer to whom she provided it. Feyen testified that he did not
use “password cracker” software to access the document.

¶8 The Inventory document contains descriptions of Stryker’s
“struggles with child pornography addiction,” his efforts to seek treatment,
attending support meetings, and obtain a sponsor. The file ends with the words “I
am fully committed to proceeding in recovery. This personal sexual inventory is
one of these initial steps.” At Stryker’s sentencing hearing, his trial counsel stated

4
No. 2021AP692-CR

that Stryker’s therapist asked Stryker to prepare the document as part of his
treatment process.

¶9 Stryker was charged with five counts of possession of child
pornography based on the images found on the laptop.

PROCEDURAL HISTORY

¶10 Stryker’s trial counsel moved to suppress the five images and the
password-protected Inventory document on the grounds that AS did not have the
authority to permit police to search the laptop.

¶11 The circuit court denied Stryker’s motion at a hearing held on
June 24, 2015.2 After summarizing relevant portions of the testimony of AS and
Stucker and Feyen, the court concluded that AS had consented to a forensic search
of the entire laptop to locate child pornography. The court found that AS had
“unfettered access” to the laptop after Stryker voluntarily left it at the home, that
the children had previously used it, and that there had been “mutual use” and
“joint control” of the laptop by Stryker and AS. Based on these factual findings,
the court concluded that AS had authority to consent to a search of the laptop, that
she did so voluntarily, and that the search was “specific to the allegations” of
possession of child pornography that the police were investigating. The court did
not make a specific finding about whether AS had actual or apparent authority.

¶12 Regarding the Inventory document, the circuit court found that
although the document was the only password-protected file on the laptop, it was
“protected by a family password, one known to [AS] and, therefore, not

2
Judge Kathryn W. Foster denied the motion.

5
No. 2021AP692-CR

particularly protected under all of the circumstances.” The court further found that
AS provided an officer with list of common family passwords, one of which Feyen
used to open the document. Based on these findings, the court concluded that AS
had authority to consent to a search of the document as well.

¶13 After a new judge took over the case, Stryker filed a motion for
reconsideration which was heard on December 18, 2015.3 Feyen testified a second
time regarding the Inventory document at the hearing. He testified that he found
the document while searching the laptop for files that had been previously deleted.
He again reiterated that he did not use password cracking software to open the
document. Feyen stated that when the computer asked for a password, he
telephoned AS and asked about any passwords that were used in the home. He
testified further that the password that opened the document “had something to do
with the Brewers, as in the Milwaukee Brewers” but did not recall how many
characters in length it was or the exact characters that comprised the password.
Finally, Feyen confirmed that he did not use a “variation” of one of the family’s
passwords to open the document.

¶14 Stryker’s counsel argued that the search for the Inventory document
was unlawful because Stryker had used a password to limit access to the document
and had deleted it from the laptop. Counsel also emphasized that AS did not know
of the document’s existence when she consented to the search and that Stryker had
“almost exclusive access to” the laptop.

¶15 The circuit court denied the motion for reconsideration after
concluding that AS had actual authority to consent to the search of the laptop and

3
Judge Ralph M. Ramirez ruled on the motion for reconsideration.

6
No. 2021AP692-CR

its files.4 The court found that all members of the Stryker family had access to the
laptop. The court again emphasized that a password supplied by AS had opened
the Inventory document, not a variation of one of the family’s passwords: “It’s
not that [Feyen] was told it has something to do with the Brewers, and then he
added Brewers123 or Brewers123 with an exclamation point.” AS had the ability
to access anything on the laptop and thus the scope of her authority extended to all
of its contents.

¶16 Stryker later pled guilty to one count of possession of child
pornography.5 After sentencing, Stryker filed a motion for postconviction relief
asserting that (1) the five images and Inventory document should have been
suppressed; (2) his trial counsel was ineffective for not further cross-examining
Feyen about alleged discrepancies in his testimony at the two hearings; and (3) his
trial counsel was ineffective because he had not argued that the Inventory
document was privileged under WIS. STAT. § 905.04.

¶17 At the Machner hearing, Stryker’s trial counsel testified that he had
not considered raising a privilege argument regarding the Inventory document.6
Trial counsel further explained that he considered the document to be a

4
The circuit court inaccurately described the motion before it as a motion to suppress
rather than a motion for reconsideration. The court also stated that it had reviewed the transcript
of the suppression hearing but not Judge Foster’s oral ruling which it was being asked to
reconsider. We note this discrepancy because a defendant moving to reconsider a previous ruling
carries a heavier burden than on a motion to suppress. State v. White, 2008 WI App 96, ¶8, 312
Wis. 2d 799, 754 N.W.2d 214 (“To prevail on a motion for reconsideration, a party must either
present newly discovered evidence or establish a manifest error of law or fact.”). We understand
from the circuit court’s conclusion that AS had actual authority to consent to the search of the
laptop that Stryker could not satisfy the heavier burden applicable on reconsideration.
5
Judge Ramirez entered the judgment of conviction following Stryker’s plea.
6
Judge Jennifer R. Dorow ruled on Stryker’s two postconviction motions.

7
No. 2021AP692-CR

“confession” of Stryker’s “history leading up to becoming sexually attracted to
children.” In discussing his conversations with Stryker about the document, trial
counsel explained that Stryker “had been seeing a counselor at Pathways
Counseling that lead him to producing this document.” Specifically, Stryker
explained to his trial counsel that “he had typed it up and it was something he was
supposed to do as part of his therapy.” But trial counsel could not “testify to
whether this was like a back and forth between him and the therapist or anything
like that. I don’t remember.”

¶18 Setting the Inventory document aside, trial counsel testified that both
he and Stryker did not believe “this was a particularly strong case to go to trial.”
Trial counsel had hired an expert to examine the laptop but the expert could not
“say [there was] no evidence of accessing child pornography.” In addition,
Stryker faced numerous other issues, including (1) his history of destroying
computer hard drives; (2) his prior statements to AS about his interest in child
pornography; (3) his attempt to kiss the neighbors’ minor daughter; and
(4) another criminal proceeding in which Stryker was charged with sexually
assaulting a child.7

¶19 The circuit court denied Stryker’s postconviction motion. As to the
suppression issue, the circuit court concluded that neither of the judges who had
examined that issue before Stryker’s plea had erroneously exercised their
discretion in denying Stryker’s motions. With respect to the Inventory document
in particular, the court reiterated that there was no evidence that Feyen used a

7
Stryker was convicted of the sexual assault charge after a jury trial and we affirmed the
conviction on appeal. State v. Stryker, No. 2020AP1482, unpublished slip op. (WI App Dec. 29,
2021).

8
No. 2021AP692-CR

“password cracker” rather than receiving a shared password from AS. For
example, the court noted that there was no evidence to show that the password
which opened the document was not one of the family’s commonly-used
passwords.

¶20 Regarding the ineffective assistance of counsel claims, the court
reviewed trial counsel’s multiple attempts to suppress the items found on the
laptop, describing his efforts as “thorough.” Turning to Feyen’s testimony, the
court declined to disturb the prior courts’ implicit findings that he was credible.
The court also found that trial counsel’s efforts did not prejudice Stryker because
trial counsel was able to (1) secure a plea that resulted in the dismissal of four of
the five originally charged counts of possession of child pornography and
(2) negotiate away the mandatory minimum sentence. The circuit court also
concluded that the ineffective assistance claim based on privilege was not
adequately developed because Stryker had simply assumed without analysis that
the Inventory document was privileged.

¶21 Stryker’s postconviction counsel filed a notice of appeal but we
subsequently allowed counsel to withdraw and Stryker to file a new
postconviction motion pro se. In his new motion, Stryker raised three claims,
including his ineffective assistance claim premised on his trial counsel’s failure to
argue that the Inventory document was privileged under WIS. STAT. § 905.04.
With this second motion, Stryker filed an affidavit from a social worker stating
that Stryker had entered treatment in 2010 and remained in treatment for
approximately two years. The affidavit stated further that “[a]s part of his
treatment under my care, [Stryker] prepared and provided me with a 9-page
printout describing his very personal history, including his sexual history” which

9
No. 2021AP692-CR

the social worker believed to be the same as the Inventory document found on the
laptop.8

¶22 Stryker also filed a “Motion to Destroy Confidential Information”
contained in the Inventory document and two motions seeking to seal or redact
portions of certain hearing transcripts and other materials discussing the Inventory
document.

¶23 The circuit court denied Stryker’s second postconviction motion.
The circuit court deemed the counselor’s affidavit sufficient to suggest grounds for
an ineffective assistance claim but concluded that Stryker had not followed it up
with testimony or other evidence to actually prove the document was privileged:

[Stryker] makes a claim that that document is privileged
information under 905.03 [sic]. In support of this,
Mr. Stryker does provide an affidavit from … Roger
Northway, a licensed counselor from an organization called
Pathways Counseling.

As I stated earlier, though, affidavits and assertions in
affidavits, those are part of the prima facie standards the
Courts look at to determine whether there’s even a
cognizable claim to get you in the door to that Machner
hearing.

So what I don’t have before this Court is, frankly, just as
important as what I do have. Because I do not have
testimony from Mr. Northway or anyone from his
organization about that document and whether it truly does
fall under the social worker—patient privilege.

I didn’t even have any testimony by Mr. Stryker or any
treatment provider regarding the origin of that document,
why that document was created, when that document was
created, the purpose for that document, the audience for
that document.
8
The state and Stryker agreed that the circuit court could consider the record of the
evidentiary hearing held in connection with Stryker’s first postconviction motion when deciding
his second motion.

10
No. 2021AP692-CR

These are assertions, and for this Court to make a finding
that it is a privileged document would require this Court to
engage in speculation.

¶24 The court also described as speculative Stryker’s assertion that he
was prejudiced because absent the items found on the laptop he would not have
pled guilty. The circuit court incorporated by reference its findings from its prior
ruling denying Stryker’s first postconviction motion, which were based in part on
Stryker’s trial counsel’s testimony regarding the weaknesses in Stryker’s case and
his success in negotiating a plea which resulted in the dismissal of four of the five
counts and elimination of the mandatory minimum sentence.

¶25 The circuit court also denied Stryker’s motions to seal and to destroy
confidential information except that it did agree to seal the Inventory document.
Stryker appeals.

DISCUSSION

Consent to Search

¶26 Stryker challenges the circuit court’s denial of his motion to
suppress. This challenge presents a question of constitutional fact, which we
review under two different standards. State v. Tullberg, 2014 WI 134, ¶27, 359
Wis. 2d 421, 857 N.W.2d 120. We uphold the circuit court’s findings of fact
unless they are clearly erroneous. Id. We then apply the law to those facts de
novo. Id.

¶27 The Fourth Amendment to the United States Constitution and article
I, section 11 of the Wisconsin Constitution guarantee “[t]he right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures.” We generally have applied our state constitutional

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No. 2021AP692-CR

protections in the same way as the United States Supreme Court has applied the
protections under the Fourth Amendment. State v. Sobczak, 2013 WI 52, ¶11 n.4,
347 Wis. 2d 724, 833 N.W.2d 59.

¶28 Warrantless searches are presumed to be unreasonable but “that
presumption may be overcome under certain circumstances.” State v. Torres,
2018 WI App 23, ¶15, 381 Wis. 2d 268, 911 N.W.2d 388 (citation omitted). One
such circumstance is when the police “receive[] consent for the search by an
authorized individual.” Id. Consent for a search may be given by someone who is
not the subject of the search—a third party. Id., ¶17 (citation omitted). Consent to
a search of another’s property may be given where the third party shares “common
authority over or other sufficient relationship to the premises or effects sought to
be inspected.” Id. (citing United States v. Matlock, 415 U.S. 164, 171 (1974)).
Whether a third party has the common authority to consent to a search rests “on
mutual use of the property by persons generally having joint access or control for
most purposes.” Matlock, 415 U.S. at 171 n.7. “We look to the sufficiency of the
consenting individual's relationship to the premises to determine mutual use by
persons generally having joint access or control for most purposes.” Torres, 381
Wis. 2d 268, ¶17 (citation omitted). “The authority of the third party may be
either actual or apparent, as long as, in the case of apparent authority, reliance on
the authority is reasonable.” Id., ¶19. Common authority to consent to a search
must be proven by the State through clear and convincing evidence. State v.
Abbott, 2020 WI App 25, ¶15, 392 Wis. 2d 232, 944 N.W.2d 8.

¶29 In analyzing whether a third party has authority to consent to the
search of the contents of a computer, “courts typically examine several factors—
whether the consenting party in fact used the computer, whether it was located in a
common area accessible to other occupants of the premises, and—often most

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No. 2021AP692-CR

importantly—whether the defendant’s files were password protected.” United
States v. Clutter, 674 F.3d 980, 984 (8th Cir. 2012); see also Sobczak, 347
Wis. 2d 724, ¶31 (third party had authority to consent to search of laptop where
defendant had given third party permission to use it without limitation, third party
used computer in common area of defendant’s house, and no files inspected were
password protected); State v. Ramage, 2010 WI App 77, 325 Wis. 2d 483, 784
N.W.2d 746 (upholding seizure of two computers pursuant to consent from
defendant’s roommate where defendant allowed roommate to use both computers
and neither required password to access).

¶30 The record here supports the conclusion that AS had actual authority
to consent to the search of the laptop. The laptop was located in the children’s
play area of the basement of AS’s home, which she had shared with Stryker.
Stryker had recently moved some of his belongings out of the house but had left
the laptop in the basement. The laptop was not password protected and was not
stored in a locked container. Although Stryker was the primary user of the laptop,
AS had used it to help their children start Netflix movies. AS and Stryker also
used the laptop to work on the family budget together. Stryker had never
prohibited AS from using the laptop and she had “complete access” to any files
stored on it. These facts establish that AS and Stryker each used the laptop and
had “joint access or control” over it “for most purposes.” State v. Sobczak, 347
Wis. 2d 724, ¶31.

¶31 Stryker’s arguments to the contrary are not persuasive. First, he
“effectively concede[s]” that AS had authority to consent to a search of the laptop
but contends that she lacked authority to consent to searches of the thumbcache
images because they were “hidden” and could not be accessed without special
software. Stryker cites no Wisconsin authority for the proposition that, where a

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No. 2021AP692-CR

computer is at issue, the relevant unit of search is each file stored on the computer
as opposed to the computer itself. But even if it were appropriate to examine a
third party’s authority to consent on a file-by-file basis, AS’s lack of access to the
thumbcache images did not result from any efforts on Stryker’s part. There is no
evidence that Stryker encrypted those files and Feyen testified that they were not
password protected. We decline Stryker’s invitation to graft an intent on his part
to exclude others from accessing the thumbcache files onto the normal functioning
of the laptop’s operating system.

¶32 Stryker next contends that AS lacked authority to consent to a search
of the Inventory document, which was password protected. “[I]gnorance of a
computer password may demonstrate a lack of authority under some
circumstances. Like a lock on a briefcase or storage trunk, password protection on
a computer demonstrates the owner's affirmative intent to limit access to its
contents.” United States v. Wright, 838 F.3d 880, 886 (7th Cir. 2016). Here,
however, the circuit court found that AS provided the police with a list of “generic
passwords used within the household on their multiple computers,” and that one of
them opened the document. By using a password known to others in the home,
Stryker “assumed the risk that the other[s] would allow the police” to open the
document. United States v. Thomas, 818 F.3d 1230, 1242 (11th Cir. 2016).9

¶33 Stryker contends that the circuit court’s finding that Feyen opened
the document with one of the family’s generic passwords was clearly erroneous
because Feyen provided “contradictory accounts” of how he accessed the

9
This also distinguishes the present case from a case Stryker cites repeatedly, Trulock v.
Freeh, 275 F.3d 391, 403 (4th Cir. 2001), in which an assistant was found not to have authority
to consent to a search of her superior’s password-protected files on a computer they both used
because the assistant did not know her superior’s passwords.

14
No. 2021AP692-CR

document at the suppression hearing and the hearing on Stryker’s motion for
reconsideration. A finding of fact is “clearly erroneous” if it is “against the great
weight and clear preponderance of the evidence.” State v. Dumstrey, 2016 WI 3,
¶13, 366 Wis. 2d 64, 873 N.W.2d 502.

¶34 At the suppression hearing, Feyen testified that he “believed” the
password to open the document came from AS though he did not obtain it directly
from her. However, when asked if one of the passwords AS provided worked or if
he “had to use a variation of one of the ones she provided,” Feyen responded, “I
don’t remember how it happened.” At the hearing on Stryker’s motion to
reconsider, Feyen testified that he had in fact contacted AS to obtain the family
passwords and that he did not use a “variation” of one of those passwords to open
the document. Though there is some inconsistency between Feyen’s lack of
definitive recall on these points at the first hearing and his more definitive
recollection at the second hearing, we cannot say that the circuit court’s finding
that a family password was used to open the document is contrary to the great
weight and clear preponderance of the evidence. Dumstrey, 366 Wis. 2d 64, ¶13.
Notably, Stryker points to no testimony or evidence in the record which tends to
show that one of his family’s generic passwords was not the correct password for
the document. The record before the circuit court contained evidence to support
its finding, which is enough for us to sustain it. State v. Wiskerchen, 2019 WI 1,
¶30, 385 Wis. 2d 120, 921 N.W.2d 730 (“We search the record not for evidence
opposing the circuit court’s decision, but for evidence supporting it.”).

¶35 Stryker also emphasizes that the Inventory document was deleted
and had to be restored by Feyen in order to be opened, which in his view proves
that AS could not access (and thus did not have authority over) it. As with the
thumbcache images, however, the fact that AS may not have been able to pull up

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No. 2021AP692-CR

the document on the laptop does not mean that she lacked common authority over
the laptop and therefore the ability to validly consent to a search of its contents.

¶36 Finally, Stryker contends that he had a reasonable expectation of
privacy in the Inventory document even if AS knew the password that opened it
due to the “extremely personal” nature of its contents. While we do not disagree
with that characterization of the document, the fact remains that (1) the document
was retrieved from a laptop that was used by other members of Stryker’s family;
(2) Stryker left the laptop in an area of his home where it was accessible to
anyone; (3) AS had unfettered access to the laptop and its contents; and (4) Stryker
attached a password to the document that was known to AS. These circumstances
are sufficient to confer actual authority on AS to consent to the search that
uncovered the document regardless of its personal nature.

Ineffective Assistance

¶37 Stryker also appeals the circuit court’s denial of his ineffective
assistance claim based on the social worker privilege statute. “To prevail on an
ineffective assistance claim, a defendant must establish both that counsel
performed deficiently and that the deficient performance prejudiced the defense.”
State v. Jacobsen, 2014 WI App 13, ¶13, 352 Wis. 2d 409, 842 N.W.2d 365
(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Both the showing
of deficient performance and prejudice are necessary to proving a claim of
ineffective assistance, so if a defendant fails to make a sufficient showing of one,
the other does not need to be addressed. Id., ¶13. As with Stryker’s Fourth
Amendment claim, we uphold the circuit court’s factual findings unless they are
clearly erroneous. State v. Reinwand, 2019 WI 25, ¶18, 385 Wis. 2d 700, 924
N.W.2d 184 (citation omitted). Whether counsel’s performance was deficient and

16
No. 2021AP692-CR

whether a defendant was prejudiced present questions of law that this court
reviews independently. Id. (citation omitted).

¶38 To prove defective performance, the defendant must show that
counsel “made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id., ¶40 (citation omitted).
The defendant “must point to specific acts or omissions by counsel that are
‘outside the wide range of professionally competent assistance.’” Jacobsen, 352
Wis. 2d 409, ¶13 (quoting Strickland, 466 U.S. at 690). An attorney does not
perform deficiently by failing to make a losing argument. Id., ¶49.

¶39 In order to show that his trial counsel rendered ineffective assistance,
Stryker must first establish that the Inventory document was in fact privileged
under WIS. STAT. § 905.04. That statute states in relevant part that a patient “has a
privilege to refuse to disclose and to prevent any other person from disclosing
confidential communications made or information obtained or disseminated for
purposes of diagnosis or treatment of the patient’s physical, mental or emotional
condition, among the patient … [and] the patient’s social worker.” Sec. 905.04(2).
“The plain language of subsection (2) extends the … privilege to either
‘communications made or information obtained or disseminated’ during
professional contacts.” Crawford ex rel. Goodyear v. Care Concepts, Inc., 2001
WI 45, ¶20, 243 Wis. 2d 119, 625 N.W.2d 876. The statute is strictly construed
and Stryker had the burden of establishing that the Inventory document was
protected by the privilege. Id., ¶14; Braverman v. Columbia Hosp., Inc., 2001
WI App 106, ¶13, 244 Wis. 2d 98, 629 N.W.2d 66.

¶40 We agree with the circuit court that Stryker failed to prove that the
Inventory document was privileged under WIS. STAT. § 905.04(2). Neither

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No. 2021AP692-CR

Stryker, the social worker, nor anyone else testified as to the circumstances
surrounding the creation of the document, its purpose, or what steps were taken to
preserve its confidentiality. The affidavit from the social worker suggests that a
document was created as part of Stryker’s treatment, but that is not sufficient, by
itself, to establish that the document met all of the requirements for protection
under § 905.04(2). Because the document was not shown to be privileged,
Stryker’s trial counsel was not ineffective in not moving to suppress it on that
ground.10

CONCLUSION

¶41 We affirm the district court’s conclusion that the warrantless search
of Stryker’s laptop for child pornography was constitutionally permissible because
AS provided valid consent for the search. AS’s authority to permit the search
extended to the Inventory document as she provided the password used to access
it. We further agree that the circuit court correctly denied Stryker’s claim of
ineffective assistance because he failed to show that the Inventory document was
protected by the social worker privilege in WIS. STAT. § 905.04(2).

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

10
Stryker also appeals the circuit court’s denial of his “Motion to Destroy Confidential
Information” in which he sought an order “requiring destruction of all paper and electronic copies
of his confidential information contained in the [Inventory document] upon the court’s finding
that [it] was a confidential communication between Mr. Stryker and his licensed clinical social
worker pursuant to WIS. STAT. § 905.04(2).” Because we agree with the circuit court that Stryker
did not carry his burden to prove that the statute applied to the document, the court did not err in
denying Stryker’s motion.

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No. 2021AP692-CR

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