State v. Dennis E. Mutters

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 18, 2023
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2022AP734-CR Cir. Ct. No. 2019CF857

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DENNIS E. MUTTERS,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Sheboygan County:
REBECCA L. PERSICK, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Lazar, 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. 2022AP734-CR

¶1 PER CURIAM. Dennis E. Mutters appeals from a judgment
convicting him of possession of child pornography, causing a child to view sexual
activity, and child sexual exploitation. Mutters argues that the circuit court erred in
denying his motion to suppress evidence because state troopers illegally seized him,
his cell phone, and his laptop computer. We affirm.

¶2 This case stems from then fifty-three-year-old Mutters’ encounter
with a state trooper after police discovered then seventeen-year-old Olivia1 in the
sleeping cab of Mutters’ semi-truck, which was parked next to a passenger car in an
otherwise empty parking lot. The trooper conducted a brief investigation at the
scene where Mutters’ semi-truck was parked, then told Mutters and Olivia that they
were free to go. The trooper, along with back-ups, later had contact with Olivia
inside of a Kwik Trip while Mutters was sitting outside in Olivia’s car. During this
encounter, the troopers discovered that Olivia and Mutters were dating. Olivia
consented to a search of her cell phone, on which the troopers discovered several
messages and photos of a sexually explicit nature that Olivia said she had sent to
Mutters. After discovering that illegal pornographic material had been sent to
Mutters, one of the troopers secured Mutters’ cell phone and laptop and searched
Mutters’ semi-truck. Mutters was eventually arrested and charged with fifteen
offenses, including nine counts of possession of child pornography.

¶3 Mutters filed a motion to suppress all evidence obtained from the
search of his semi-truck, including evidence obtained pursuant to a search warrant
for Mutters’ cell phone and laptop. Mutters argued that the initial encounter with
the trooper in the parking lot, and subsequently at the Kwik Trip, were unlawful

1
We use a pseudonym to protect the victim’s right to privacy.

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No. 2022AP734-CR

seizures. He also asserted that the troopers did not have probable cause to search
his semi-truck or to seize Mutters’ cell phone and laptop.

¶4 The circuit court held an evidentiary hearing on Mutters’ suppression
motion. Three of the state troopers who had been involved in the encounters in the
parking lot and the Kwik Trip testified. Mutters also testified. After hearing all the
evidence and arguments of counsel, the circuit court denied Mutters’ suppression
motion.

¶5 The circuit court made several factual findings related to Mutters’
illegal seizure argument, including that: “there was no stop;” the encounter between
one of the troopers, Mutters, and Olivia at the semi-truck in the parking lot was “all
consensual” because Mutters and Olivia “were free to leave and, in fact, they did
leave, and they went to the Kwik Trip[;]” the encounter at the Kwik Trip “wasn't
reinitiated with [Mutters,]” but with Olivia; Mutters “voluntarily” went into the
Kwik Trip, allowed a trooper to use Mutters’ cell phone to talk to Olivia’s mother,
and then left “the area[;]” Olivia consented to the search of her cell phone; Mutters
had given, then revoked, consent to search his cell phone; Mutters’ cell phone was
not searched at that time; and Mutters voluntarily left the Kwik Trip and returned to
his semi-truck unaccompanied by officers. Based on these facts, the court found
that “virtually everything up until they found the pornographic images on the phone
was all done by consent with Mr. Mutters taking the phone when he want[ed] and
walking out when he want[ed].”

¶6 In denying Mutters’ suppression motion, the circuit court found many
aspects of Mutters’ testimony “inconsistent,” noting that portions of his testimony
were “contradictory” and “incredible” at times. The court specifically found
“inconsistent” and “incredible” Mutters’ testimony that he was told “he was under

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No. 2022AP734-CR

arrest” and felt compelled to give consent to a search of his semi-truck. On the flip
side, the court found the contrary testimony by the trooper “credible.” As further
support for its decision, the court also observed that Mutters “wasn't accompanied
to the truck by law enforcement” when he left the Kwik Trip after taking his cell
phone back from the trooper.

¶7 The circuit court next concluded that after the consensual search of
Olivia’s phone revealed that she had sent pornographic material to Mutters, the
troopers had probable cause to believe that Mutters was in possession of child
pornography. Thus, the court determined, it was not illegal under the circumstances
for the troopers to search Mutters’ semi-truck and to seize his cell phone and laptop
to secure them before later searching them pursuant to a warrant.

¶8 The circuit court held another hearing after Mutters filed a motion for
reconsideration and again denied Mutters’ suppression motion. As relevant to this
appeal, the court confirmed its factual finding that “there was no stop of [Mutters]
at the Kwik Trip” and that all contact between Mutters and the troopers was
“consensual.” Mutters subsequently entered a plea and was found guilty of causing
a child to view sexual activity, child sexual exploitation, and possession of child
pornography. Mutters appeals.

¶9 Mutters argues that he was illegally seized at the Kwik Trip. He
further contends that his cell phone and laptop were illegally seized. Based on his
assertions that the troopers violated his Fourth Amendment rights, he asks us to
conclude that the circuit court erred in denying his motion to suppress.

¶10 “Review of an order granting or denying a motion to suppress
evidence presents a question of constitutional fact, which [this court] review[s]
under two different standards.” State v. Hughes, 2000 WI 24, ¶15, 233 Wis. 2d

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No. 2022AP734-CR

280, 607 N.W.2d 621. “We uphold a circuit court’s findings of fact unless they are
clearly erroneous[,]” but “[w]e then independently apply the law to those facts[.]”
See id.

¶11 The Fourth Amendment of the United States Constitution and
Article 1, Section 11 of the Wisconsin Constitution both protect against
unreasonable searches and seizures by law enforcement. County of Grant v. Vogt,
2014 WI 76, ¶18, 356 Wis. 2d 343, 850 N.W.2d 253. However, these protections
“are not implicated until a government agent ‘seizes’ a person.” Id., ¶19 (citation
omitted). Furthermore, “not all personal interactions between law enforcement
officers and people constitute a seizure.” Id. The test for determining whether a
seizure occurred is whether “a reasonable person would have believed he was free
to disregard the police presence and go about his business.” State v. Young, 2006
WI 98, ¶18, 294 Wis. 2d 1, 717 N.W.2d 729. It is an objective test that considers
the totality of the circumstances. Vogt, 356 Wis. 2d 343, ¶31.

¶12 We defer to a circuit court’s finding as to whether an individual was
seized or instead “would have felt free to leave.” See id., ¶¶2, 41-42. In Vogt, our
supreme court upheld the circuit court’s determination that the defendant was not
seized when a police officer knocked on the driver’s side window of his vehicle and
asked him to roll down the window, even though the officer parked right behind
defendant’s vehicle and rapped loudly on the window. Id., ¶¶39-45. The facts in
Vogt share many similarities to the circumstances presented here, including the fact
that the circuit court explicitly found that Mutters was not seized at any time during
the encounters with the troopers and implicitly found that a reasonable person in
Mutters’ position “would have felt free to leave.” See id., ¶¶41-42.

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No. 2022AP734-CR

¶13 Our independent review of the record shows that the evidence
supports the court’s finding that all aspects of the encounters between the troopers
and Mutters were “consensual.” To summarize the court’s relevant findings recited
above, Mutters was free to leave, and did so, after the encounter in the parking lot;
Mutters voluntarily went into the Kwik Trip; and Mutters voluntarily made contact
with the troopers and showed them his cell phone before he revoked consent and
took his cell phone back. These facts all support the circuit court’s finding that
Mutters was never seized by the troopers.

¶14 As discussed above, the court also made credibility findings, deciding
that Mutters’ testimony was “inconsistent” and “incredible,” while finding the
trooper’s competing testimony credible. We defer to these credibility
determinations because “the circuit court judge is in the best position to make an
appropriate determination.” State v. Lamon, 2003 WI 78, ¶38, 262 Wis. 2d 747,
664 N.W.2d 607.

¶15 For all these reasons, we conclude that the circuit court’s findings are
not clearly erroneous. The record supports the court’s determination that Mutters
was never seized by the troopers. Thus, the court did not err in denying Mutters’
suppression motion on that ground.

¶16 Mutters’ next challenge is to the seizure of his cell phone and laptop,
although not the search of them. After seizing them, the troopers obtained a warrant
before searching their contents. The circuit court determined that the troopers had
probable cause to believe that Mutters had committed a crime after they had
searched Olivia’s cell phone, with her consent, and discovered the pornographic
materials she admitted she sent to Mutters. When police “have probable cause to
believe that a container holds contraband or evidence of a crime, but have not

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No. 2022AP734-CR

secured a warrant…the [Fourth] Amendment [allows] seizure of the property,
pending issuance of a warrant to examine its contents, if the exigencies of the
circumstances demand it….” See United States v. Place, 462 U.S. 696, 701 (1983);
see also Hughes, 233 Wis. 2d 280, ¶17 (noting “this court and the United States
Supreme Court have recognized exceptions to the warrant requirement where the
government can show both probable cause and exigent circumstances that overcome
the individual’s right to be free from government interference.”).

¶17 The troopers had probable cause to believe that Mutters’ cell phone
and laptop contained evidence of a crime—namely, possession of child
pornography. Olivia had told the troopers that she had sent Mutters pornographic
materials, including photos. A person who possesses a cell phone or laptop can
quickly and easily destroy the device itself or the data it contains. See Riley v.
California, 573 U.S. 373, 388-89 (2014). Mutters could have erased text and
Facebook messages, photos, videos, and call logs, or physically destroyed the cell
phone and laptop altogether if the troopers had not seized it. See id. The risk of
destruction is the relevant inquiry, and that risk is high when evidence is located on
a cell phone or laptop. Id. Given these exigent circumstances, the seizure of
Mutters’ cell phone and laptop was not illegal. See, e.g., State v. Deen,
No. 2020AP1399-CR, unpublished slip op. ¶¶11, 14 (WI App Aug. 24, 2021) (cited
for persuasive value) (upholding warrantless seizure of cell phone based on
suspicion it contained evidence of possession of child pornography and noting
“other courts have upheld warrantless seizures of electronic devices based on the
risk that a suspect would destroy those devices, or the evidence they contained, after
learning of law enforcement's investigation.”). Thus, we conclude that the circuit
court did not err in denying Mutters’ motion to suppress evidence found in the cell
phone and laptop.

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No. 2022AP734-CR

By the Court.—Judgment affirmed.

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

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