State v. Tyler J. Clark

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.
February 6, 2025
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. 2023AP290-CR Cir. Ct. No. 2019CF1612

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

TYLER J. CLARK,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Dane County:
CHRIS TAYLOR, Judge. Affirmed.

Before Kloppenburg, P.J., Blanchard, and Nashold, 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).

¶1 PER CURIAM. Tyler Clark appeals a conviction for possession of
child pornography, challenging the circuit court’s denial of his two motions to
No. 2023AP290-CR

suppress. Clark raises two overarching arguments. First, he challenges the
constitutionality of a search warrant, arguing that a provision in the warrant that
permitted police to compel him to make his biometric information available
violated his Fifth Amendment privilege against compelled self-incrimination and
that the warrant violated his Fourth Amendment rights because it lacked
particularity and was overbroad. Second, Clark contends that the court erred in
failing to suppress a statement that he made after he invoked his right to counsel,
specifically, his recitation of the passcode to his cellphone in the presence of
police.1 For the reasons that follow, we reject Clark’s arguments and affirm.

BACKGROUND

¶2 In 2019, the City of Madison Police Department received
information from the National Center for Missing and Exploited Children
(NCMEC) that NCMEC had received information from Tumblr linking Clark to
child pornography on a Tumblr account.2 After reviewing the images provided by
Tumblr to NCMEC and discovering that the Internet Protocol (IP) address
associated with the account was in Clark’s father’s name at a residence in which
Clark resided with his parents, police obtained a search warrant. Pertinent here,
the warrant authorized police to search Clark’s residence, Clark’s person, Clark’s
vehicle, and the vehicles belonging to Clark’s parents, with whom Clark then
resided. The warrant also contained a provision authorizing police to access

1
Although Clark’s motion in the circuit court and his discussion on appeal refer to the
suppression of “statements,” the only statement specifically mentioned is the statement reciting
his passcode.
2
Tumblr is a social media platform that allows users to post images and videos and to
engage in direct messaging conversations with other users.

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biometric information of persons related to any mobile devices identified during
the warrant’s execution:

During the execution of the search warrant, law
enforcement personnel are authorized to press the fingers
(including thumbs) of individuals found to have ownership,
access to, or possession of mobile devices, to the Touch ID
sensor of such device(s), for the purpose of attempting to
unlock the devices in order to search its contents.
Additionally, law enforcement personnel are authorized to
position device(s) in such a way that the device has the
ability to recognize the facial characteristics of the owner
o[r] person in possession of said device(s) in the event that
“facial recognition software” is utilized in the process of
unlocking the device.

¶3 In addition, the warrant authorized police to search for and seize:
“[i]mages or visual depictions representing the possible exploitation, sexual
assault and enticement of children” and “[a]ny documents in whatever format,
including digital/electronic data and written or printed material evidencing, or
tending to evidence, the possible exploitation, sexual assault and/or enticement of
children.” The warrant further described all of the items subject to search and
seizure as “things [that] may constitute evidence of a crime, to wit[:] Possession
of Child Pornography committed in violation of [WIS. STAT. §] 948.12(1m) ….”

¶4 According to the criminal complaint filed against Clark, police
detained Clark as he was leaving his residence and executed the search warrant.
Police seized Clark’s cellphone, and it was turned over to a digital forensic analyst
at the Wisconsin Department of Justice Department of Criminal Investigation
(DCI). Using the passcode to the cellphone that Clark provided, the analyst
located a video file containing several images of child pornography, which were
consistent with the images provided to law enforcement through Tumblr. The
State charged Clark with three counts of possession of child pornography.

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No. 2023AP290-CR

¶5 Clark filed two motions to suppress. In one motion, Clark
challenged the search warrant itself. Clark argued that the warrant violated his
Fifth Amendment right against compelled self-incrimination because it allowed
police to compel him to provide biometric information, specifically, fingerprints
and a facial recognition scan. In this motion Clark also challenged the warrant on
Fourth Amendment grounds, arguing that it lacked particularity and was
overbroad because it “authorized the seizure of ‘any and all’ materials, ‘any
document in whatever format ... tending to evi[nce] the possible exploitation,
sexual assault[] and/or enticement of children’” and also authorized the search of
both Clark’s and his parents’ vehicles.

¶6 Clark’s other motion requested suppression of a statement that he
made after invoking his right to counsel, namely, his recitation of the passcode to
his cellphone in the presence of police. Clark argued that after Clark invoked his
right to counsel, a detective stopped the interrogation and said that he would not
ask any more questions, but then, a short time later, the detective told Clark that
the search warrant authorized police-compelled fingerprint or facial recognition to
unlock Clark’s cellphone. Although the detective told Clark that Clark did not
have to provide his passcode, when police allowed Clark to use his cellphone to
contact his boss, Clark said his passcode out loud as he typed it, and police heard
it. Clark argued that he made this statement after he invoked his right to counsel
while he was in custody, that the statement was involuntary and the result of
police coercion, and that the statement should therefore be suppressed, consistent
with the Fifth and Sixth Amendments and due process.

¶7 The circuit court held a suppression hearing at which City of
Madison Police Department officers testified to the following. Detective Mark
Hull investigated internet crimes against children. Hull investigated Clark for

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No. 2023AP290-CR

possession of child pornography as a result of cyber tips that police received
regarding alleged pornographic images posted on Tumblr that were linked to
Clark’s email account and to an IP address belonging to Clark’s father at a
residence where Clark lived with his parents.

¶8 Based on this information, Hull obtained a warrant to search Clark’s
residence, including for electronic devices. While executing the search warrant,
police took Clark into custody. Officer Shane Olson handcuffed Clark, took
Clark’s cellphone from him to turn over to the detectives, and put Clark in the
back of Olson’s squad car. Detective Bradley Ware assisted Hull by sitting in on a
subsequent interview with Clark, taking notes, and holding Clark’s phone.

¶9 Hull and Ware moved Clark from Olson’s squad car to an unmarked
detective car, with Hull and Clark sitting in the back seat and Ware sitting in the
front seat. Hull read Clark his Miranda rights,3 told Clark that it was his choice
whether to talk to Hull, and had Olson remove Clark’s handcuffs. Hull
interviewed Clark for about 15-20 minutes before Clark invoked his right to
counsel.4 During the interview, Hull asked Clark if he would provide a passcode
to his cellphone and Clark responded that he “[did not] feel comfortable sharing
that.” Clark made a similar statement when Hull asked Clark for the passcode to
Clark’s computer.

¶10 As soon as Clark invoked his right to counsel, Hull stopped the
interview, told Clark that Hull was not going to ask Clark any more questions, and

3
See Miranda v. Arizona, 384 U.S. 436, 479 (1966).
4
The interview in Olson’s squad car was recorded and a transcript created.

5
No. 2023AP290-CR

informed Clark that police would leave a copy of the search warrant at Clark’s
residence and that Hull would recontact Clark later to give Clark a copy of the
search warrant. Hull then moved Clark back to Olson’s squad car while police
searched Clark’s residence. Clark was not handcuffed while in Olson’s squad car.
Olson did not interrogate Clark, but Olson made “small talk” with Clark until Hull
and Ware returned about 15 minutes later and had a second contact with Clark. It
was Hull’s understanding at the time that, during this second contact with Clark,
Hull could not lawfully interrogate Clark because Clark had invoked his right to
counsel. However, Hull believed that he could check on Clark, give him a copy of
the warrant, and summarize the nature of the investigation and the search warrant
to Clark, “without interrogating” him. Hull also intended to execute the part of the
warrant that allowed him to compel Clark to unlock his cellphone by use of facial
recognition, although Hull did not end up executing this provision.5

¶11 During the second contact, Hull showed Clark the search warrant
and told Clark that it allowed police to compel Clark to unlock his cellphone by
providing a fingerprint or through facial recognition. During these particular
interactions Hull and Ware were standing outside of Olson’s squad car, about
three feet away from Clark as he sat in the back seat, with Ware standing behind
Hull, and the back passenger door open. When Clark asked Hull if Clark had to
give the officers his passcode, Hull responded, “No, you don’t.” After Hull told
Clark that he did not have to provide his passcode, Clark asked Hull if he could
have his cellphone back to contact his boss. Hull gave Clark his cellphone but

5
The suppression hearing testimony did not reveal what specific unlocking functions, if
any, Clark’s cellphone model had. The testimony from the DCI analyst was that she did not
recall if Clark’s cellphone model allowed unlocking through a fingerprint but that she believed it
had the capacity to be unlocked through facial recognition.

6
No. 2023AP290-CR

stayed close to Clark to ensure that Clark did not damage or destroy the cellphone,
which Hull considered to be “critical evidence in this case.” Hull did not stand
close to Clark for the purpose of observing Clark enter his passcode. Hull
believed that Clark would open his cellphone using facial recognition. Hull “had
no belief” that Clark was going “to say a passcode” and did not specifically ask
Clark for his passcode.

¶12 When Hull returned Clark’s cellphone to him, Clark entered his
passcode and, as he was doing so, said the passcode “out loud.” After Clark said
his passcode out loud, Hull repeated it incorrectly; Clark corrected Hull, saying his
passcode out loud again; Hull repeated it again; and Ware, who was standing
outside the squad car behind Hull, heard it and wrote it down. After Clark had
already said the passcode out loud twice, Hull said something like, “What?” in
apparent reference to the passcode.

¶13 After Clark texted his boss, Hull took back Clark’s cellphone and
gave it to Ware, who delivered it to the DCI analyst. Clark was later arrested for
possession of child pornography.

¶14 Police never executed the biometric information portion of the
search warrant by making compelled use of either fingerprint access or facial
recognition for any device.

¶15 The warrant authorized a search not only of Clark’s vehicle, but also
of vehicles registered to his parents, because police did not know what vehicles
Clark had access to or used. Further, although Clark was the primary suspect in
the child pornography investigation, the provisions of the search warrant that
authorized police to compel use of biometric information from anyone at the
residence were necessary because there could have been “someone else that is in

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No. 2023AP290-CR

this house” who was involved in the possession of child pornography, particularly
because the IP address connected to Clark’s Tumblr account was in Clark’s
father’s name. Clark and his parents lived together in this residence, and it was
possible that anyone using that IP address could have downloaded the child
pornography.

¶16 The circuit court denied Clark’s motions to suppress. As to Clark’s
Fifth Amendment challenge to the warrant, the court determined that the court did
not have to reach the constitutionality of the biometrics provision because police
did not execute that provision or obtain any evidence based on it. Moreover, the
court concluded that the biometrics provision could be severed from the remainder
of the warrant. The court also rejected Clark’s Fourth Amendment challenge. The
court determined that the warrant properly allowed police to search Clark’s
computer and cellphone and other computers and devices at the address because,
although Clark was the primary suspect, it was not “clear as to whether others in
the residence could have been engaging in this activity, given that the IP address is
associated with an address and there could be other people living there.” Further,
the court noted that all of the incriminating evidence was found on Clark’s
cellphone.6

6
The circuit court also suggested that incriminating evidence may also have been found
on Clark’s computer, but this appears to have been based solely on the prosecutor’s equivocal
statement at the hearing that “there may be a computer, but it would be Mr. Clark’s computer,”
when the court asked whether it was true that all of the incriminating evidence was found on
Clark’s cellphone. Defense counsel agreed that the incriminating evidence all came from Clark’s
devices. On appeal, the parties do not discuss any device other than Clark’s cellphone and as a
result we treat the contents of Clark’s cellphone as the only digital evidence that Clark seeks to
suppress.

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No. 2023AP290-CR

¶17 Regarding Clark’s parents’ vehicles, the circuit court found that no
incriminating evidence was seized from the vehicles and concluded that Clark did
not have standing to challenge the search of the vehicles. The court also rejected
Clark’s overbreadth challenge to the warrant’s authorization for seizure of images,
visual depictions, and any documents evidencing “the possible exploitation, sexual
assault [and/or] enticement of children,” concluding that this language accurately
describes child pornography.

¶18 The circuit court also denied Clark’s motion alleging that police
obtained his passcode in violation of his constitutional rights. As to his Fifth and
Sixth Amendment claims, the court determined that although Clark was in custody
when he said his passcode out loud within the hearing of police, at that time he
was not being interrogated by the police nor was his statement coerced. The court
also concluded that police did not engage in the functional equivalent of an
interrogation. The court credited Hull’s testimony that he renewed contact with
Clark in order to summarize the contents of the warrant, including the biometric
provision. The court further credited Hull’s testimony that he did not ask Clark to
provide his passcode, and found that Hull “explicitly told Mr. Clark he did not
need to provide the passcode.” The court found that Clark “asked several times if
he had to provide [the passcode] and he was told no.” The court also credited the
testimony, summarized above, that when Clark entered his passcode, he said it out
loud, Hull repeated it incorrectly, and “Clark rerepeated his passcode because
[Hull] had switched a number.” Additionally, the court determined that Clark’s
saying his passcode out loud was “spontaneous” and voluntary on his part, and
that there was no evidence that Clark was coerced into providing his passcode.
The court found that although Hull said, “What?” this occurred “after the passcode

9
No. 2023AP290-CR

information was provided.” For these reasons, the court denied both of Clark’s
motions to suppress.

¶19 Clark subsequently pled guilty to one count of possession of child
pornography, with the other two counts dismissed and read in. He was sentenced
and a judgment of conviction was entered. Clark appeals.

DISCUSSION

I. Standard of Review

¶20 Clark argues that the circuit court erred in denying his motions to
suppress. When reviewing a decision on a motion to suppress evidence, we
uphold the circuit court’s factual findings unless they are clearly erroneous, but we
independently apply constitutional principles to the facts. State v. Lonkoski, 2013
WI 30, ¶21, 346 Wis. 2d 523, 828 N.W.2d 552. We also review a circuit court’s
credibility determinations under the clearly erroneous standard. State v. Jenkins,
2007 WI 96, ¶33, 303 Wis. 2d 157, 736 N.W.2d 24.

II. Validity of the Warrant

¶21 Clark challenges the validity of the warrant. He contends that the
warrant’s biometrics provision violated his Fifth Amendment right against
compelled self-incrimination and that the warrant violated the Fourth Amendment
because it was overbroad and lacked particularity.

A. Fifth Amendment Challenge to the Warrant

¶22 Under the Fifth Amendment, a person may not be compelled in any
criminal case to be a witness against himself or herself. U.S. CONST. amend. V.
“To qualify for the Fifth Amendment privilege, a communication must be

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No. 2023AP290-CR

testimonial, incriminating, and compelled.” Hiibel v. Sixth Jud. Dist. Ct. of Nev.,
542 U.S. 177, 189 (2004); see also State v. Mark, 2006 WI 78, ¶16, 292 Wis. 2d
1, 718 N.W.2d 90.

¶23 Clark argues that the warrant’s biometrics provision violated his
Fifth Amendment rights because it allowed police to compel “testimonial
information” from him. We first note that, in making this argument, Clark
repeatedly and incorrectly states that the warrant allowed police to compel him to
provide the passcode to his cellphone.7 The warrant contained no such
authorization. As stated, the warrant’s biometrics provision authorized police,
during the execution of the warrant, “to press the fingers (including thumbs) of
individuals found to have ownership, access to, or possession of mobile devices, to
the Touch ID sensor of such device(s), for the purpose of attempting to unlock the
devices in order to search [their] contents.” It also authorized police to “position
[the] device(s) in such a way that the device has the ability to recognize the facial
characteristics of the owner o[r] person in possession of said device(s) in the event
that ‘facial recognition software’ is utilized in the process of unlocking the
device.” The warrant did not compel individuals to provide passcodes to unlock
mobile devices. Thus, to the extent that Clark’s argument is predicated on the
incorrect assertion that the warrant authorized police to compel him to provide a
passcode, his argument fails.

¶24 Moreover, any challenge to the biometrics provision itself fails. In
rejecting Clark’s Fifth Amendment challenge, the circuit court determined that it
did not have to address the constitutionality of the biometrics provision because

7
The State makes this same error on appeal.

11
No. 2023AP290-CR

the provision was never executed, and that, even if the provision were
unconstitutional, it was severable from the remainder of the warrant and therefore
would not invalidate the remainder of the warrant. See State v. Sveum, 2010 WI
92, ¶34, 328 Wis. 2d 369, 787 N.W.2d 317 (severability doctrine “permits
reviewing courts to excise the defective portions of an otherwise valid warrant” so
that items seized pursuant to the valid parts of the warrant may be admitted).
These are the same positions that the State advances on appeal.8

¶25 As to the circuit court’s conclusion that the biometrics provision is
severable, we note that, although Clark discusses severability in the context of his
Fourth Amendment overbreadth and lack of particularity argument, he does not
specifically address severability as to his Fifth Amendment challenge.
Accordingly, we could deem Clark to have conceded that the court correctly
determined that the severability doctrine applies with respect to his Fifth
Amendment challenge. See Schlieper v. DNR, 188 Wis. 2d 318, 322, 525 N.W.2d
99 (Ct. App. 1994) (appellant concedes issue when “appellant ignores the ground
upon which the trial court ruled and raises issues on appeal that do not undertake
to refute the trial court’s ruling”). However, to the extent that Clark means to
extend his severability arguments to his Fifth Amendment challenge, we reject
these arguments for the reasons we explain below in discussing Clark’s Fourth
Amendment challenge.

8
The State also argues that being compelled to provide fingerprints or facial
identification does not implicate the Fifth Amendment because it does not compel the provision
of “testimonial” information. Because we reject Clark’s challenge to the biometrics provision on
other grounds, we do not address this argument. See Barrows v. American Fam. Ins. Co., 2014
WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508 (2013) (“An appellate court need not address
every issue raised by the parties when one issue is dispositive.”).

12
No. 2023AP290-CR

¶26 Clark’s only specific response to the circuit court’s ruling (and the
State’s argument) on his Fifth Amendment challenge to the biometrics provision is
his unsupported assertion that “[i]t makes no difference in the Fifth Amendment
analysis that law enforcement did not execute the warrant’s [biometrics]
provision.” In making this assertion, it may be that Clark also intends to address
the court’s severability determination. Regardless, we reject any argument
predicated on this assertion as undeveloped. See State v. Pettit, 171 Wis. 2d 627,
646, 492 N.W.2d 633 (Ct. App. 1992) (we need not address undeveloped
arguments). Further, Clark’s blanket statement is contrary to case law. See State
v. Marten, 165 Wis. 2d 70, 77, 477 N.W.2d 304 (Ct. App. 1991) (court declined to
address whether probable cause supported a warrant provision authorizing search
of outbuildings because warrant was not executed as to outbuildings, no evidence
was seized from them, and outbuilding provision was severable from remainder of
warrant).

¶27 To the extent that Clark may mean to make a more limited argument
that the failure of police to execute the biometrics provision “makes no difference”
under the facts of this particular case, we also reject this argument. Clark may
intend to suggest that, because Hull read or showed the biometrics provision to
Clark prior to Clark saying his passcode out loud, Clark’s recitation of the
passcode was necessarily compelled by the biometrics provision or by Hull’s
pointing out that provision to Clark, thereby violating Clark’s Fifth Amendment
rights. However, Clark presents no authority or persuasive argument supporting
the proposition that police merely reading or showing him the biometrics
provision rendered the provision unconstitutional. To the extent that Clark intends
to argue that Hull’s reading the provision to Clark compelled Clark’s recitation of
the passcode, as we discuss more fully in addressing Clark’s Fifth and Sixth

13
No. 2023AP290-CR

Amendment challenges below, Clark fails to show a nexus between the two
actions. As noted, the circuit court found that Clark’s recitation of his passcode
was “spontaneous” and that Clark had previously asked Hull more than once if
Clark had to give his passcode and was told that he did not. The court also
determined that there was no evidence that Clark was coerced into giving his
passcode. As we point out below, Clark does not show, or even argue, that the
court’s findings of fact are clearly erroneous, nor does he show that the court’s
legal conclusions are in error.

¶28 In sum, because the biometrics provision was not executed and can
be severed from the remainder of the warrant, and because Clark fails to offer any
legal or factual support that would undermine the circuit court’s ruling, we reject
Clark’s Fifth Amendment challenge to the warrant.

B. Fourth Amendment Challenge to the Warrant

¶29 The warrant clause of the Fourth Amendment to the United States
Constitution provides three requirements for a valid search warrant: “(1) prior
authorization by a neutral, detached magistrate; (2) a demonstration upon oath or
affirmation that there is probable cause to believe that evidence sought will aid in
a particular conviction for a particular offense; and (3) a particularized description
of the place to be searched and items to be seized.” Sveum, 328 Wis. 2d 369,¶20;
see also WIS. STAT. § 968.12(1). The issuing court must “determine whether,
under the totality of the circumstances, given all the facts and circumstances set
forth in the affidavit, ‘there is a fair probability that contraband or evidence of a
crime will be found in a particular place.’” Sveum, 328 Wis. 2d 369, ¶24 (quoted
source omitted). A reviewing court affords “great deference to the warrant-issuing
judge’s determination of probable cause and that determination will stand unless

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No. 2023AP290-CR

the defendant establishes that the facts are clearly insufficient to support a finding
of probable cause.” State v. Higginbotham, 162 Wis. 2d 978, 989, 471 N.W.2d
24 (1991).

¶30 The Fourth Amendment requires that a warrant state with
particularity the place to be searched and the items to be seized. Sveum, 328
Wis. 2d 369, ¶20. The particularity requirement ensures that the warrant
“‘enable[s] the searcher to reasonably ascertain and identify the things which are
authorized to be seized.’” Id., ¶27 (quoted source omitted). Under this standard,
the warrant is required to describe the place and items with only “as much
particularity and specificity as the circumstances and the nature of [the] activity
under investigation permit[].” State v. Petrone, 161 Wis. 2d 530, 541, 468
N.W.2d 676 (1991), overruled on other grounds, State v. Greve, 2004 WI 69,
¶31 n.7, 272 Wis. 2d 444, 681 N.W.2d 479.

¶31 Clark argues that the warrant violated the Fourth Amendment
because it lacked particularity and was overly broad in the following four respects.
First, he argues, it permitted police to improperly compel use of biometric
information from individuals in the residence other than Clark in order to access
their digital devices. Second, it allowed police to improperly search Clark’s
parents’ vehicles. Third, “it allowed police to seize items for which there was no
probable cause,” specifically, by including the “necessary or helpful” language
that we discuss below. Fourth, it authorized a search for and seizure of any
evidence of “possible exploitation, sexual assault and/or enticement of children,”
which, according to Clark, allowed police to search for evidence “far beyond
simply child pornography.” Clark’s arguments are without merit.

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No. 2023AP290-CR

¶32 Regarding Clark’s first argument, as discussed above, the biometrics
provision was not executed as to Clark or anyone else in the residence, and no
incriminating evidence was obtained as a result of the compelled use of anyone’s
biometric information. Just as the biometrics provision may be severed from the
remainder of the warrant in the context of Clark’s Fifth Amendment challenge,
discussed above, so too may it be severed in the context of Clark’s Fourth
Amendment challenge, as case law makes clear.

¶33 For example, in Marten, a search warrant authorized police to search
defendant Marten’s residence, yard, and outbuildings for marijuana and drug
paraphernalia. Marten, 165 Wis. 2d at 72-73. Marten argued that the warrant was
fatally overbroad because there was not probable cause to support a search of his
yard or outbuildings. Id. at 76. This court concluded that the complaint submitted
in support of the warrant established probable cause to believe that marijuana
would be found in Marten’s residence. Id. at 75. However, we declined to decide
whether there was probable cause to search the yard and outbuildings because
“there [was] no evidence that these areas were ever searched, and it [did] not
appear that any evidence was found in them.” Id. at 77. As a result, we concluded
that “the portion of the warrant authorizing a search of the yard and outbuildings
may be severed from the portion authorizing the search of Marten’s home” and
that “[t]he items seized from the house remain unaffected and may be properly
admitted in evidence.” Id. Consistent with Marten, we reject Clark’s contention
that the warrant lacked particularity and was overly broad because it authorized
police to access the biometric information of others in the residence besides Clark.

¶34 In the same vein, the reasoning in Marten also resolves Clark’s
challenge to the warrant provision that authorized police to search Clark’s parents’
vehicles. There was no evidence, nor does Clark argue, that these vehicles were

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No. 2023AP290-CR

ever searched or that any incriminating evidence was found in them. Thus, as in
Marten, because “there [was] no evidence that these areas were ever searched, and
it [did] not appear that any evidence was found in them,” we apply the severability
doctrine to uphold the provisions of the warrant under which the incriminating
evidence at issue was lawfully seized. Id. at 77.9

¶35 Clark argues that the severability doctrine does not apply for two
reasons. First, relying on State v. Noll, 116 Wis. 2d 443, 343 N.W.2d 391 (1984),
Clark argues that the warrant here contained descriptions that were too general and
generic, analogous to a warrant provision in Noll, which described “various long-
play photograph record albums, and miscellaneous vases and glassware items”
that the Noll court deemed constitutionally defective for lack of particularity. See
Noll, 116 Wis. 2d at 451. Specifically, Clark refers to the following descriptions
in the warrant here: “computer hardware devices” and “all such equipment that
can collect, analyze, create, display, [convert,] conceal, record or transmit
electronic, magnetic, optical[, or similar computer or electronic impulses or data].”
We first observe that, rather than addressing the circuit court’s ruling on
severability, this appears to be an additional argument on lack of particularity. In
any event, Clark fails to develop an argument explaining why there was not a
“‘fair probability’” that evidence of child pornography would be found in these
locations, which is all that was required. See Sveum, 328 Wis. 2d 369, ¶24

9
The State alternatively argues that Clark lacked standing to challenge warrant
provisions related to his parents and that such provisions were permissible given that, at the time
the warrant was sought, the officers had information that other people resided at Clark’s residence
and that the IP address associated with the possible child pornography was in Clark’s father’s
name. Because we resolve this issue on other grounds, we need not address these arguments. See
Barrows, 352 Wis. 2d 436, ¶9.

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No. 2023AP290-CR

(quoted source omitted). Accordingly, we reject this argument. See Pettit, 171
Wis. 2d at 646 (we need not address undeveloped arguments).

¶36 Second, purporting to rely on United States v. Naugle, 997 F.2d 819
(10th Cir. 1993), as persuasive authority, Clark asserts that the severability
doctrine can apply only when the greater part of the warrant is valid and that here,
“there was no valid portion to the warrant.” But once again, Clark does not
develop a reasoned argument in support of his assertion and we reject it on this
basis. Pettit, 171 Wis. 2d at 646.

¶37 Turning to Clark’s third argument, that the warrant allowed police to
seize items for which there was no probable cause, this rests on a misinterpretation
of the warrant. According to Clark, the warrant “states that information identified
by the [forensic] analyst as ‘necessary or helpful’ to understand everything else
that was seized is also authorized.” Clark argues that this language “allows for the
seizure of anything at the discretion of officers” and “gives carte blanche
permission to police officers to seize anything they believe mildly helpful in
showing Clark was engaged in anything wrong without specifying what it was
they were to look for and seize.” Clark’s assertions are based on an inaccurate
interpretation of the warrant’s “necessary or helpful” language. This language is
contained in a provision that authorizes law enforcement to conduct a forensic
examination of the devices described in, and seized pursuant to, the warrant. Once
these devices are seized, the provision at issue authorizes police to

[c]onduct a full or partial forensic examination/analysis of
the devices or the contents of the devices using accepted
computer forensic examination tools and techniques, for the
purpose of locating, documenting, preserving and/or
determining the presence or absence on or in the device of,
but not limited to, the following:

….

18
No. 2023AP290-CR

i. Contextual information identifiable by the analyst
and necessary or helpful to understand the evidence
otherwise described in [the attached warrant affidavit].

Thus, the “necessary or helpful” language pertains only to items that are seized
and describes the purposes for which a forensic analysis may occur. Contrary to
Clark’s assertion, this does not authorize police to “seize anything they believe
mildly helpful in showing Clark was engaged in anything wrong without
specifying what it was they were to look for and seize.” Further, in making this
assertion, Clark ignores the statement in the warrant describing the items subject
to search and seizure as “things [that] may constitute evidence of a crime, to wit[:]
Possession of Child Pornography committed in violation of [WIS. STAT.
§] 948.12(1m).” Accordingly, we reject Clark’s assertions as unsupported by the
language of the warrant authorizing a forensic examination for particular purposes
of the devices seized.

¶38 Clark’s fourth overbreadth argument is based on the warrant
provision authorizing police to search for and seize evidence of “possible
exploitation, sexual assault and/or enticement of children.”10 According to Clark,
this allowed police to search for evidence “far beyond simply child pornography”
because “[c]hild pornography is a narrow subset of child exploitation related
crimes.” According to Clark, the provision therefore “allows officers to rummage
for whatever they desire.” We agree with the circuit court’s assessment that the
description at issue adequately describes child pornography, particularly in

10
Clark argues that, by failing to respond to this specific argument in the circuit court,
the State conceded it. As noted, the court addressed and rejected this particular argument.
Moreover, the State responds to the merits of this argument on appeal (as well as to Clark’s
argument that the State conceded the issue). Thus, even if in responding to Clark’s particularity
argument in the circuit court the State did not address this particular aspect, we decline to apply
any rule of concession or forfeiture.

19
No. 2023AP290-CR

conjunction with the warrant’s further description of the items subject to seizure as
“things [that] may constitute evidence of a crime, to wit[:] Possession of Child
Pornography committed in violation of [WIS. STAT. § ] 948.12(1m).” We
conclude that this language sufficiently “‘enable[s] the searcher to reasonably
ascertain and identify the things which are authorized to be seized’” and therefore
satisfies the particularity requirement. See Sveum, 328 Wis. 2d 369, ¶27 (quoted
source omitted).11

III. Fifth and Sixth Amendment Challenge Regarding Clark’s Statement

¶39 Clark argues that Hull violated his Fifth Amendment right against
compelled self-incrimination and his Sixth Amendment right to counsel by
“continuing interrogation after Clark [in]voked his right to counsel” and by
“compel[ling] Clark’s statement reciting his passcode.”

¶40 Miranda warnings inform a suspect who is in custody both of the
suspect’s Fifth Amendment right against compelled self-incrimination, which
includes the right to remain silent, and the Sixth Amendment right to have a
lawyer present during interrogation. Miranda v. Arizona, 384 U.S. 436, 479
(1966); State v. Santiago, 206 Wis. 2d 3, 19, 556 N.W.2d 687 (1996). The Sixth
Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy
the right ... to have the Assistance of Counsel for his defence.” U.S. CONST.
amend. VI.

11
The State also argues that any error in denying suppression of evidence seized pursuant
to the warrant was harmless and that if the warrant was partially invalid, the exclusionary rule
does not apply because officers relied on the search warrant in good faith. Because we resolve
the warrant issues on other grounds, we need not address these arguments. See Barrows, 352
Wis. 2d 436, ¶9.

20
No. 2023AP290-CR

¶41 Once an accused invokes the right to counsel during a custodial
interview, any custodial interrogation must cease until counsel has been made
available to the accused, “unless the accused himself [or herself] initiates further
communication, exchanges, or conversations with the police.” Edwards v.
Arizona, 451 U.S. 477, 484-85 (1981). A custodial interrogation is “express
questioning or its functional equivalent.” See Rhode Island v. Innis, 446 U.S.
291, 300-01 (1980). Express questioning “does not encompass every inquiry
directed to the suspect”; instead, it “covers only those questions ‘designed to elicit
incriminatory admissions.’” State v. Harris, 2017 WI 31, ¶16, 374 Wis. 2d 271,
892 N.W.2d 663 (quoted source omitted). The “functional equivalent” of a police
interrogation includes any “‘words or actions ... (other than those normally
attendant to arrest and custody) that the police should know are reasonably likely
to elicit an incriminating response from the suspect.’” Id., ¶19 (quoted source
omitted).

¶42 Whether an officer’s words or actions constitute the functional
equivalent of an interrogation turns on an objective foreseeability test: if an
objective observer could foresee that the officer’s conduct or words would elicit an
incriminating response and “‘reasonably have had the force of a question on the
suspect, then the conduct or words would constitute interrogation.’” Id., ¶22
(quoted source omitted). Courts must consider “the entire context within which
the dialogue took place.” Id., ¶23. To be considered an interrogation or its
functional equivalent of express questioning, the officer’s statements or conduct
“must exert a compulsive force on the suspect.” Id., ¶30. ‘“Interrogation’ ‘must
reflect a measure of compulsion above and beyond that inherent in custody
itself.’” State v. Hambly, 2008 WI 10, ¶46, 307 Wis. 2d 98, 745 N.W.2d 48
(quoted source omitted). For example, police verbally summarizing to a suspect

21
No. 2023AP290-CR

incriminating evidence against the suspect is not necessarily compulsive enough to
constitute the functional equivalent of express questioning. Id., ¶57.

¶43 Whether the officer “should have known” that the suspect “would
suddenly be moved to make a self-incriminating response” depends on the facts;
merely because an officer’s comments might strike a “responsive chord” with a
suspect or the suspect was subjected to “subtle compulsion,” is not enough to
create the functional equivalent of interrogation. Innis, 446 U.S. at 303.
“‘Volunteered statements of any kind are not barred by the Fifth Amendment.’”
Arizona v. Mauro, 481 U.S. 520, 529 (1987) (quoted source omitted). Even if the
officer may hope that the suspect will incriminate himself or herself, this does not
by itself render the officer’s words and actions the functional equivalent of an
“interrogation.” Id.

¶44 Clark’s Fifth and Sixth Amendment challenge rests solely on his
assertion that, contrary to the circuit court’s conclusion, when police reinitiated
contact with Clark, they engaged in the functional equivalent of interrogation. He
argues that their conduct was reasonably likely to elicit an incriminating response,
and that therefore Clark’s recitation of his passcode was compelled. See Harris,
374 Wis. 2d 271, ¶19 (“functional equivalent” of a police interrogation includes
any “words or actions … that the police should know are reasonably likely to elicit
an incriminating response from the suspect”). Clark offers the following four
grounds for this proposition.

¶45 First, Clark quotes the circuit court’s finding crediting Hull’s
testimony that Hull reinitiated contact with Clark “‘to explain the warrant and to
explain the biometric provision.’” Clark argues that the court failed to address
Hull’s testimony that another reason that Hull reinitiated contact with Clark was to

22
No. 2023AP290-CR

execute the facial recognition provision. It is true that, in making its initial ruling,
the court did not mention this other motive testified to by Hull. However, after
Clark raised this issue in a motion for reconsideration, the court addressed it,
concluding that “Hull’s ‘intent’ to attempt to execute this portion of the warrant
does not change the fact, as I recognize in my original decision, that the biometric
data collection portion of the warrant was never actually executed.” On appeal
Clark fails to develop an argument that either Hull’s other motivation or the
court’s failure to initially address it has any bearing on the court’s ultimate ruling
that Clark’s recitation of his passcode was voluntary, particularly given that Hull
never executed the facial recognition provision. See Pettit, 171 Wis. 2d at 646.

¶46 Second, Clark argues that Hull’s testimony that he did not tell Clark
that Clark had to provide his passcode was “unreliable.” In support of this
assertion, Clark states, “Hull was there to unlock the iPhone, by his own assertion.
That extended to providing the passcode—providing a thumbprint or Face ID
constitutes providing a passcode of an iPhone device.” As an initial matter, Clark
fails to provide any factual or logical support for the assertion that a passcode is
indistinguishable from a thumbprint or facial identification. Further, this argument
is irrelevant in light of the fact that Hull never compelled any biometric
information. Finally, as noted, the circuit court found that Hull did not ask Clark
for his passcode and that Clark’s recitation of the passcode was “spontaneous.”
Clark does not argue that these findings are clearly erroneous.

¶47 Third, Clark contends that Hull’s testimony that he did not expect
Clark to recite his passcode was “unreasonable” because Hull should have known
that Clark would incriminate himself. He further argues that, regardless of Hull’s
subjective belief, “It is evident that putting a warrant in someone’s face, reading
from the section compelling biometric information, and pointing to the judge’s

23
No. 2023AP290-CR

signature would have been ‘reasonably likely to elicit an incriminating response
from the suspect.’” In making this argument, Clark fails to explain the nexus
between Hull’s actions and Clark’s recitation of his passcode, particularly given
the context in which Clark’s recitation occurred. As noted, Clark did so after he
was explicitly told more than once that he did not have to provide a passcode and
after he had previously declined to do so when asked during his prior contact with
Hull. In addition, Clark’s recitation of his passcode occurred in the context of his
request to contact his employer, being permitted to do so, and saying his passcode
out loud as he was typing it in. Clark also fails to support his assertion with any
case law or developed argument. Pettit, 171 Wis. 2d at 646 (undeveloped legal
arguments and “[a]rguments unsupported by references to legal authority will not
be considered”).

¶48 Fourth, Clark argues that the evidence from the suppression hearing
showed that at the time he said his passcode out loud in the presence of police he
“was upset, likely nauseated,”12 had never had contact with law enforcement
before, was in a squad car, had just been released from handcuffs, and had two to
three officers around him. However, Clark does not explain why these facts, when
considered in the context of all of the circumstances here, establish that police
compelled Clark to provide his passcode. Again, police did not ask him to do so
and explicitly told him more than once that he did not have to.

12
Detective Hull testified at the suppression hearing that during his questioning of Clark,
before Clark invoked his right to counsel, Clark made a statement about “‘trying to keep his
fucking breakfast down.’” Hull was also questioned by defense counsel about whether Clark was
“burping repeatedly,” and Hull testified that he could not recall.

24
No. 2023AP290-CR

¶49 Based on the circuit court’s findings of fact not shown to be clearly
erroneous, and Clark’s failure to make a persuasive argument to the contrary, we
agree with the court’s determination that police were not interrogating Clark, nor
was there the “functional equivalent” of an interrogation, when Clark stated his
passcode.

IV. Due Process Challenge Regarding Voluntariness of Clark’s Statement

¶50 Clark argues that his statement providing his passcode was an
involuntary statement because it was procured by coercive police conduct, in
violation of his right to due process.

¶51 The Due Process Clause of the Fourteenth Amendment of the United
States Constitution and Article I, Section 8 of the Wisconsin Constitution require
that a criminal defendant’s statements be voluntarily made before the statements
may be admitted into evidence in a criminal case. State v. Vice, 2021 WI 63, ¶28,
397 Wis. 2d 682, 961 N.W.2d 1. “When a defendant raises a voluntariness
challenge, the State must prove by a preponderance of the evidence that the
statements made by the defendant were voluntary.” State v. Kruckenberg, 2024
WI App 45, ¶36, 413 Wis. 2d 226, 11 N.W.2d 131. A defendant’s statements are
voluntary if those statements “‘are the product of a free and unconstrained will,
reflecting deliberateness of choice, as opposed to the result of a conspicuously
unequal confrontation in which the pressures brought to bear on the defendant by
representatives of the State exceeded the defendant’s ability to resist.’” Id.
(quoted source omitted).

¶52 “Whether a defendant’s statements were voluntary involves the
application of constitutional principles to historical facts.” Id., ¶37. “We defer to
the circuit court’s findings regarding the factual circumstances that surrounded the

25
No. 2023AP290-CR

making of the statements unless those findings are clearly erroneous.” Id.
“However, the application of constitutional principles to those facts is a question
of law that we review independently.” Id.

¶53 The well-established test for voluntariness considers the totality of
the circumstances in balancing “the personal characteristics of the defendant
against pressures imposed by law enforcement officers to determine if the
pressures exceeded the defendant’s ability to resist.” State v. Lemoine, 2013 WI
5, ¶3, 345 Wis. 2d 171, 827 N.W.2d 589.

¶54 Although “some coercive or improper police conduct must exist in
order to sustain a finding of involuntariness,” State v. Hoppe, 2003 WI 43, ¶46,
261 Wis. 2d 294, 661 N.W.2d 407, “[o]ur supreme court recognizes that police
pressures ‘that are not coercive in one set of circumstances may be coercive in
another set of circumstances if the defendant’s condition renders him or her
uncommonly susceptible to police pressures,’” Kruckenberg, 413 Wis. 2d 226,
¶40 (quoted source omitted).

¶55 In arguing that his statement was coerced and involuntary, Clark
points to several facts, including that: police approached Clark while he was
exiting his home; Clark was handcuffed at one point and placed in various squad
cars; he was upset during police questioning and “presumably nauseated”; he was
25 years old, was living with his parents, and had no prior law enforcement
contact; he invoked his right to an attorney; and he was later shown the warrant
and informed of the biometrics provision.13 Clark does not develop an argument,
13
Clark also asserts, without support to the record, that he had been “arrested” at the
time he recited his passcode aloud. If this is intended as an argument or an element of an
argument, we reject it as undeveloped.

26
No. 2023AP290-CR

supported by legal authority, that as a result of these facts, the recitation of his
passcode was the product of a “conspicuously unequal confrontation in which the
pressures brought to bear on the [him] by representatives of the State exceeded
[his] ability to resist.” Id., ¶36.

¶56 Indeed, the primary basis for Clark’s involuntariness argument
appears to be that Hull’s recontacting Clark after Clark invoked his right to
counsel and Hull’s showing and summarizing the biometrics provision to Clark
somehow compelled Clark’s recitation of his passcode. We reject Clark’s
argument for the same reasons stated above. Clark in effect ignores the circuit
court’s findings of fact, which provide the context in which Clark recited his
passcode, and which we have summarized above. Clark does not argue that the
court’s findings are clearly erroneous, and he provides no authority to support his
assertion that coercion exists under these circumstances. As a result, he fails to
provide a basis for us to disturb the court’s conclusions that “there was no
interrogation” and no “evidence of coercion,” and that Clark’s recitation of his
passcode was voluntary.14

CONCLUSION

¶57 For the reasons stated, we affirm the circuit court’s denial of Clark’s
motions to suppress.

14
The State also argues that we may affirm the circuit court’s denial of Clark’s motion to
suppress his statement based on the inevitable discovery and harmless error doctrines. Because
we affirm the court’s ruling on other grounds, we need not address these arguments. See
Barrows, 352 Wis. 2d 436, ¶9.

27
No. 2023AP290-CR

By the Court.—Judgment affirmed.

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

28