State v. McKinley E. Pye

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.
October 19, 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. 2019AP1905 Cir. Ct. No. 2017CF774

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MCKINLEY E. PYE,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Sheboygan County:
KENT R. HOFFMANN, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Grogan, 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. 2019AP1905

¶1 PER CURIAM. McKinley E. Pye, pro se, appeals an order granting
in part and denying in part his petition for return of property, pursuant to WIS.
STAT. § 968.20 (2015-16),1 and denying his motion for reconsideration. Pye
claims that the circuit court erred when it ordered the return of Pye’s electronic
devices after they had been wiped clean of all data at Pye’s expense because:
(1) the noncontraband data on the devices is returnable property; (2) the State did
not provide a legitimate reason for retaining the noncontraband data; and (3) the
circuit court did not weigh the cost of the motion for return of property against the
cost of wiping the devices. We affirm.

BACKGROUND

¶2 On December 4, 2017, Pye was charged with five counts of
possession of child pornography, contrary to WIS. STAT. § 948.12(1m).
According to the complaint, Pye admitted to special agents, including
Special Agent Chad Racine of the Wisconsin Department of Justice, Division of
Criminal Investigation, that Pye downloaded, viewed, and possessed digital files
showing females in a sexual nature who were obviously under the age of eighteen.
Pye estimated that “[t]hrough the years” he had viewed “hundreds of non-adult
pornographic content, which was determined through the context of the
conversation to be various forms of child exploitation material.”

¶3 Pye pled no contest to one count of possession of child pornography,
and the remaining counts were dismissed and read in at sentencing. At Pye’s

1
WISCONSIN STAT. § 968.20 was amended after Pye was charged. See 2017 Wis. Act
211, § 30 (eff. Apr. 5, 2018). This amendment does not apply to Pye’s case. Accordingly, the
relevant version of § 968.20 is the 2015-16 version of the Wisconsin Statutes. All other
references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.

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sentencing hearing, the district attorney told the circuit court that
Special Agent Racine reported recovering hundreds of files featuring clothed
prepubescent girls and very early pubescent female children. Specifically, Racine
identified fifteen contraband files that included twelve image files and three video
files showing children engaged in sexually explicit conduct. According to the
district attorney, Racine reported that the data retrieved generally showed child
pornography activity that ranged from January 2004 through August 2017. This
activity included “countless child pornography related terminology, search terms,
URLs, and titles.” The circuit court sentenced Pye to ten years in prison, with four
years of initial confinement and six years of extended supervision.

¶4 After Pye was sentenced, the district attorney addressed Pye’s
request for the return of his electronic devices. The district attorney explained the
procedure as it was outlined in an October 15, 2018 email from
Special Agent Racine. Racine told the district attorney that Pye could get his
electronic devices back if the devices underwent a forensic wiping process.
Racine told the district attorney that “[t]he wiping process is pricey (about $60 per
hour) and therefore, most elect to have the items destroyed instead.” Racine
further explained that photo extractions fall under the wiping fee, but are “only
done if practical as it’s a time consuming process.” The district attorney told
Pye’s attorney to work with Racine for the return of the electronic devices, stating
“we’re willing to provide the items if they are wiped clean and defense can make a
determination of how they would like to proceed.”

¶5 In a November 6, 2018 email, Racine further described to Pye’s
attorney how the wiping process would work. Racine explained that his agency
could wipe Pye’s hard drives so that the data is “impossible to recover[,]” but that
it did not perform “specific illegal/contraband image wiping[.]” Racine told Pye

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in a subsequent communication that if Pye did not file a motion for the return of
his electronic devices under WIS. STAT. § 968.20, the devices would be destroyed.

¶6 On June 14, 2019, Pye, pro se, moved for the return of property
under WIS. STAT. § 968.20. At a hearing on the motion, the district attorney and
Pye stipulated to several facts related to the seized evidence: (1) police officers
seized several electronic devices; some of the devices contained child
pornography, and some did not; (2) the State was willing to return the items that
did not contain child pornography; (3) any items that did contain child
pornography could only be returned after they were “wiped clear, which means all
data is erased from them”; (4) Pye sought the return of files that were family
photographs and documents and items that were not child pornography; and
(5) the State’s position was that “those items are contraband and should not be
returned.”

¶7 The district attorney then identified three devices that could be
returned after being wiped: a Samsung Tablet, a Kingston SSD associated with a
Toshiba Satellite laptop, and a Seagate Momentus hard drive associated with an
HP MediaSmart laptop (“devices”). Pye agreed that these were the devices he
wanted returned. Pye had no objection to the Samsung Tablet being wiped, but
objected to wiping the data on the Kingston SSD and Seagate Momentus hard
drive because they contained “digital property … represent[ing] a significant
portion of not only my personal life [and] photos … but also my business life,

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No. 2019AP1905

contacts, work history, [and] 20 years of data that cannot easily be replaced.”2
When asked by the circuit court, Pye agreed that child pornography was found on
the Kingston SSD and Seagate Momentus hard drive.

¶8 The district attorney argued that the devices were contraband under
WIS. STAT. § 968.13(1)(a) and Jones v. State, 226 Wis. 2d 565, 590-91, 594
N.W.2d 738 (1999), because Pye used them to look for or otherwise store child
pornography. The district attorney explained that the wiping process was
necessary “to ensure that there are no images or fragments or remnants of images
that are illegal to be returned to him.” The district attorney pointed out that as a
“practical consideration” it would take “hours and hours” for an analyst to “go
through [and] identify those that are not illegal images, save them to a separate
medium[,] and return them[.]” The district attorney concluded by asking the
circuit court to declare the devices contraband and allow them to be destroyed or,
in the alternative, wiped at Pye’s expense and returned with no content.

¶9 Pye responded that the data on the devices was property and that he
was entitled to the return of the data that was not illegal. Pye also told the circuit
court that the property was not needed as evidence based on a letter he received
from Special Agent Racine.

¶10 The circuit court granted Pye’s motion in part and denied Pye’s
motion in part. The circuit court began its oral ruling by noting that there was no

2
Later in the hearing, Pye told the circuit court that he wanted the data from three
devices without specifying which devices. On appeal, Pye references “three seized contraband
devices[,]” but does not specifically identify them. For the purposes of this appeal, we assume
Pye is referring to the Samsung Tablet, Kingston SSD associated with the Toshiba Satellite
laptop, and Seagate Momentus hard drive associated with the HP MediaSmart laptop when he
refers to the “devices.”

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No. 2019AP1905

dispute that the devices contained child pornography. It determined that the State
proved by the greater weight of the credible evidence that the devices were
contraband, as defined by WIS. STAT. § 968.13(1)(a) and Jones, because Pye used
the devices to obtain and/or possess child pornography. See Jones, 226 Wis. 2d at
590-91. The circuit court also determined that Pye chose to comingle child
pornography with other data on the devices and, for public policy reasons, would
not order their return unless they were completely wiped:

It would be unfair -- in light of him being the one who co-
mingled the child pornography with whatever else was on
these devices, it would be unfair to have the taxpayers or
the law enforcement to pay for that and that could be done
at the defendant’s own expense if he chooses to.

The circuit court gave Pye 120 days to decide whether Pye wanted to pay to have
the devices wiped before they were returned.

¶11 Pye moved for reconsideration, arguing that the noncontraband data
on the devices was returnable property and that the State did not prove that the
time involved to retrieve the noncontraband data was a legitimate reason for
retaining it. See United States v. Gladding, 775 F.3d 1149, 1152 (9th Cir. 2014)
(government must show legitimate reason for retention of property). The circuit
court denied Pye’s motion, determining that it did not make a manifest error of
law, and there was no additional evidence presented that was unavailable at the
earlier hearing. In doing so, the circuit court reaffirmed its ruling that the devices
were contraband: “[T]he entirety of the devices is the contraband. The devices
themselves are the contraband as they were used to either obtain and/or store child
pornography and therefore they were used directly in the commission of a crime
and therefore by definition are contraband.”

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No. 2019AP1905

DISCUSSION

¶12 On appeal, Pye seeks the return of the noncontraband data on the
devices. Pye argues that the circuit court erred when it ordered the computers be
wiped at Pye’s expense for three main reasons: (1) the noncontraband data are
returnable property that should be evaluated separately from the child
pornography; (2) the State did not provide a legitimate reason for retaining the
noncontraband data; and (3) the circuit court did not weigh the cost of the motion
and hearings on the return of the devices against the cost of wiping the devices.
We address each argument in turn.

A. Return of Property

¶13 WISCONSIN STAT. § 968.20(1) permits a person whose property has
been seized by law enforcement to seek return of the property in the circuit court.3

3
WISCONSIN STAT. § 968.20 (2015-16) provides:

(1) Any person claiming the right to possession of property
seized pursuant to a search warrant or seized without a search
warrant, except for an animal taken into custody
under s. 173.13 (1) or withheld from its owner
under s. 173.21 (1) (a), may apply for its return to the circuit
court for the county in which the property was seized or where
the search warrant was returned, except that a court may
commence a hearing, on its own initiative, to return property
seized under s. 968.26.

(1g) The court shall order such notice as it deems adequate to
be given the district attorney and, unless notice was provided
under s. 968.26 (7), to all persons who have or may have an
interest in the property. The court shall hold a hearing to hear all
claims to its true ownership. If the right to possession is proved
to the court’s satisfaction, it shall order the property, other than
contraband or property covered under sub. (1m) or (1r) or
s. 173.21 (4) or 968.205, returned if:

(continued)

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No. 2019AP1905

See Jones, 226 Wis. 2d at 586-87. Pursuant to this statute, the circuit court shall
order the return of the property if the person seeking return has a right to
possession of the property, the property is not contraband, and the property is not
needed as evidence. Id. Property is contraband under § 968.20 if it falls within
the definition of contraband in WIS. STAT. § 968.13(1)(a). See Jones, 226 Wis. 2d
at 587. Under § 968.13(1)(a), contraband “includes without limitation because of
enumeration … lewd, obscene or indecent written matter, pictures, sound
recordings or motion picture films[.]” Id.

¶14 The State must establish by the greater weight of the credible
evidence that the property is contraband. Jones, 226 Wis. 2d at 595. Whether the
State has met its burden of proof is a question of law that we review without
deference to the circuit court. See id. at 596. We accept the circuit court’s
findings of the credibility of the witnesses and the weight to be given to their
testimony unless they are clearly erroneous. Id. at 596, 598.

¶15 Pye claims that the State offered no authority for its policy of
declining to return the noncontraband data. He argues that when contraband and
noncontraband property, such as data on a computer, are comingled, the property
should be evaluated individually to determine which property can be returned.
Similarly, Pye claims that the devices are derivative contraband that should be
analyzed separately from the child pornography. Based on these rationales, Pye

(a) The property is not needed as evidence or, if needed,
satisfactory arrangements can be made for its return for
subsequent use as evidence; or

(b) All proceedings and investigations in which it might be
required have been completed.

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No. 2019AP1905

contends that he is entitled to the return of the noncontraband data on the devices.4
This argument fails for two reasons.

¶16 First, under WIS. STAT. § 968.13(1)(a) and Jones, contraband
property is not limited to materials that are per se illegal. Jones, 226 Wis. 2d at
590. Contraband also includes property which has been found to have a
significant connection to items which are illegal to possess. Id. at 596. As Jones
explained, “[b]ecause [§ 968.13(1)(a)] expressly covers items ‘without limitation
by enumeration,’ contraband cannot reasonably be read as limited to the class,
type or nature of the items listed in subsec[tion] (a).” Jones, 226 Wis. 2d at 588.
Therefore, contraband is not limited to items that are per se illegal to possess, but
also includes “legal items which are put to an illegal use or acquired illicitly.” Id.
at 591.

¶17 In this case, Pye does not dispute that the devices contained child
pornography. Thus, although the devices were not per se illegal to possess, they
nonetheless constituted contraband because they were “put to an illegal use” when
they were used to access or possess child pornography contrary to WIS. STAT.
§ 948.12(1m). See Jones, 226 Wis. 2d at 591. Accordingly, under WIS. STAT.
§ 968.13(1)(a) and Jones, Pye is not entitled to the return of the devices, which
necessarily includes all noncontraband data the devices may contain.

¶18 Second, when contraband and noncontraband data are comingled on
a device, the State is not required to return the noncontraband data. See United

4
Pye also contends that the noncontraband data is actionable property under WIS. STAT.
§§ 943.70(1)(h) and 711.03(10). The State does not dispute this assertion on appeal. Therefore,
for the purposes of this appeal, we assume Pye has an interest in the noncontraband data that he
would like returned.

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No. 2019AP1905

States v. Wernick, 148 F. Supp. 3d 271, 275-76 (E.D.N.Y. 2015) (noncontraband
data intertwined with contraband counterparts is forfeitable as “part and parcel of
the property used to commit the crime”); State v. Kremer, 907 N.W.2d 403, 407
(N.D. 2018) (property subject to forfeiture “includes noncontraband computer files
as well as contraband computer files contained on an electronic device”). Pye
does not dispute the circuit court’s determination that Pye comingled child
pornography with noncontraband data on the devices. Accordingly, the
noncontraband data is forfeited as “part and parcel” of the property Pye used to
commit the crime. See Wernick, 148 F. Supp. 3d at 276.

¶19 The circuit court’s determination that the devices could not be
returned to Pye unless they were wiped is consistent with the challenges and
expense associated with attempting to locate and delete digital evidence on
computers. See, e.g., State v. Gralinski, 2007 WI App 233, ¶31, 306 Wis. 2d 101,
743 N.W.2d 448 (images of child pornography can remain on computer hard drive
even if deleted); State v. Schroeder, 2000 WI App 128, ¶15, 237 Wis. 2d 575, 613
N.W.2d 911 (“When searching computer files, investigators necessarily must look
at all files and not just those with names suggestive of criminal activity, as ‘few
people keep documents of their criminal transactions in a folder marked [crime]
records.’” (citations omitted)). The cost and difficulty of attempting to locate and
delete the child pornography on Pye’s devices are borne out by the undisputed
evidence in this case:

 According to the criminal complaint, Pye told the police that
“[t]hrough the years, Pye estimated to viewing hundreds of non-
adult pornographic content, which was determined through the
context of the conversation to be various forms of child exploitation
material.”

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No. 2019AP1905

 According to Special Agent Racine’s report presented at sentencing,
a search of Pye’s devices resulted in the recovery of hundreds of
files featuring clothed prepubescent girls and very early pubescent
female children. This included fifteen contraband files containing
twelve image files and three video files depicting children in
sexually explicit conduct.

 Racine’s report stated that the data retrieved generally showed child
pornography activity that ranged from January 2004 through August
2017. According to the report, a search of Pye’s computers revealed
“countless child pornography related terminology, search terms,
URLs, and titles.”

 In the October 15, 2018 email, Racine told Pye’s lawyer that “[t]he
wiping process is pricey (about $60 per hour) and therefore, most
elect to have the items destroyed instead.” Racine further explained
that photo extractions fall under the wiping fee, but are “only done if
practical as it’s a time consuming process.”

Accordingly, based on the Record and case law, Pye is not entitled to the return of
the noncontraband data on the devices. The noncontraband data was comingled
with child pornography on the devices, which themselves were contraband
because they were “put to an illegal use” when they were used to access or possess
child pornography. See Jones, 226 Wis. 2d at 591. Jones is clear that if the
property is contraband, it “need never be returned.” Id. at 587.

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No. 2019AP1905

B. Legitimate Reason Test

¶20 Next, Pye relies on Gladding, 775 F.3d 1149, to argue that the State
did not present a legitimate reason for retaining the noncontraband data. Gladding
explained that under FED. R. CRIM. P. 41(g), property should presumptively be
returned unless there is a “legitimate reason” for its retention. Gladding, 775 F.3d
at 1152 (citation omitted). Pye thus claims that the State failed to meet its burden
of producing evidence demonstrating the time and cost associated with returning
the noncontraband data. This claim fails because Pye did not raise the legitimate
reason test until his motion for reconsideration.

¶21 To prevail on a motion for reconsideration, the movant must present
either newly discovered evidence or establish a manifest error of law or fact.
Koepsell’s Olde Popcorn Wagons, Inc. v. Koepsell’s Festival Popcorn Wagons,
Ltd., 2004 WI App 129, ¶44, 275 Wis. 2d 397, 685 N.W.2d 853. As we have
seen, the circuit court determined that Pye’s motion for reconsideration failed on
both grounds. This was not an erroneous exercise of discretion. See id., ¶6
(circuit court’s decision on a motion for reconsideration reviewed for erroneous
exercise of discretion).

¶22 Pye failed to show that the circuit court’s decision was based on a
manifest error of law or fact. “A ‘manifest error’ is not demonstrated by the
disappointment of the losing party.” Id., ¶44 (citation omitted). Rather, “[i]t is the
‘wholesale disregard, misapplication, or failure to recognize controlling
precedent.’” Id. (citation omitted). As we have seen, when denying Pye’s motion
for reconsideration, the circuit court reaffirmed its ruling that the devices were
contraband as defined by WIS. STAT. § 968.13(1)(a) and Jones. Pye’s motion did

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No. 2019AP1905

not demonstrate that the circuit court disregarded, misapplied, or failed to
recognize controlling precedent.

¶23 Pye also failed to show newly discovered evidence. A party may not
use a motion for reconsideration to introduce new evidence that could have been
presented earlier. Koepsell’s, 275 Wis. 2d 397, ¶46. In this case, Pye does not
explain why the legitimate reason test in Gladding was unknown when he filed his
initial motion for the return of property. See Koepsell’s, 275 Wis. 2d 397, ¶46.
Rather, he asks this court for leniency because he brought the initial motion for
return of property pro se. While we grant pro se litigants a degree of leeway in
presenting their arguments, we generally require even those litigants afforded
leeway by virtue of their pro se status to present to the circuit court all arguments
discoverable “with reasonable diligence.” State ex rel. Wren v. Richardson, 2019
WI 110, ¶25, 389 Wis. 2d 516, 936 N.W.2d 587. Pye was given every reasonable
opportunity to present his case to the circuit court in his original motion.
Accordingly, we will not decide issues Pye originally chose not to pursue.

C. Cost of Motion to Return Property

¶24 Finally, Pye contends that the circuit court should have weighed the
cost of the motion and hearings on the return of the devices against the cost of
wiping the devices. He argues that, given the time and resources spent on the
motion and hearings for the return of the devices, it would have been “a more
‘fair’ expense to the taxpayers … to simply have the [S]tate incur the cost for
retrieving the data and/or wiping the devices.” Pye has not provided any legal
authority, however, to support this argument. See State v. Pettit, 171 Wis. 2d 627,
646, 492 N.W.2d 633 (Ct. App. 1992) (“Arguments unsupported by references to

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No. 2019AP1905

legal authority will not be considered.”). Accordingly, we decline to address it
further.5

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5 (2019-20).

5
In his Reply brief on appeal, Pye again points to his pro se status as the reason why he
did not initially provide this court with any legal authority. Pye then cites to WIS. STAT. § 801.01
and State ex rel. Rilla v. Circuit Court for Dodge County, 76 Wis. 2d 429, 251 N.W.2d 476
(1977), to support his argument that the court should have considered the potential cost to the
taxpayers. Pye does not explain why, through reasonable diligence, he could not have discovered
these sources and cited to them in his initial brief on appeal. See State ex rel. Wren v.
Richardson, 2019 WI 110, ¶25, 389 Wis. 2d 516, 936 N.W.2d 587. Accordingly, we decline to
address this argument further. See id.; A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475,
492-93, 588 N.W.2d 285 (Ct. App. 1998) (appellate court will not address arguments raised for
the first time in reply brief).

14