State v. Charles Augustus Clayton-Jones

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.
December 17, 2020
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. 2019AP924-CR Cir. Ct. No. 2015CF262

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CHARLES AUGUSTUS CLAYTON-JONES,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Sauk
County: GUY D. REYNOLDS and WENDY J.N. KLICKO, Judges. Affirmed.

Before Fitzpatrick, P.J., Graham, 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).
No. 2019AP924-CR

¶1 PER CURIAM. Charles Clayton-Jones appeals a judgment of
conviction and an order denying his motion for postconviction relief without a
hearing.1 Because we conclude that Clayton-Jones’s claims of ineffective
assistance of counsel are, at most, premised on unsettled questions of law, we
affirm the circuit court’s denial of his postconviction motion without a hearing.

BACKGROUND

¶2 The facts in this case are not in dispute for purposes of this appeal.
In September 2006, the Sauk County Sheriff’s Department executed a search
warrant at Clayton-Jones’s house and seized a digital camera and other items. The
warrant affidavit alleged that in the summer of 2006 Clayton-Jones had sexual
contact with a ten-year-old boy. According to the affidavit, the boy reported that
Clayton-Jones had rubbed the boy’s penis with his hand “at least fifty times” and
had inserted a tan vibrator in the boy’s “butt.” The boy further reported that
Clayton-Jones had “videotaped this activity” and had shown him a video of “three
boys doing nasty stuff to each other.” The warrant authorized police to search
Clayton-Jones’s home for a “tan vibrator, pornographic movies and videotapes,
which items may constitute evidence of a crime, to wit: Exposing a Child to
Harmful Material … and First Degree Child Sexual Assault.”

¶3 As a result of those allegations, Clayton-Jones pled no contest to one
count of first-degree sexual assault of a child and was sentenced to 10 years of
initial confinement followed by 15 years of extended supervision.

1
The Honorable Guy D. Reynolds presided over trial and entered the judgment of
conviction. The Honorable Wendy J.N. Klicko entered the order denying Clayton-Jones’s motion
for postconviction relief.

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No. 2019AP924-CR

¶4 In 2008, the State charged Clayton-Jones with sexual assault for
engaging in fellatio with the same boy, also during the summer of 2006, in Sauk
County Case No. 2008CF311 (“the 2008 sexual assault case”). The circuit court
dismissed the 2008 sexual assault case on double jeopardy grounds.

¶5 In 2015, Clayton-Jones filed a motion for return of personal property
requesting that law enforcement return “all of his personal property seized by the
State with the exception of any contraband.” A Sauk County Sheriff’s Department
detective and evidence technician searched a memory card from the digital camera
to see if it contained contraband. The memory card and several other electronic
items that police had seized from Clayton-Jones’s home in 2006 had not
previously been fully searched.

¶6 The memory card contained a video that Clayton-Jones had
recorded, showing a ten-year-old boy and a six-year-old boy naked and engaging
in sexually explicit behavior.

¶7 Based on this video, the State charged Clayton-Jones with one count
of child sexual exploitation. A jury convicted him in November 2017, and he was
sentenced to five years of initial confinement followed by three years of extended
supervision, consecutive to the sentences Clayton-Jones was then serving.

¶8 Clayton-Jones filed a motion for postconviction relief, alleging that
his two trial attorneys were ineffective for not moving to suppress the contents of
the digital camera’s memory card on Fourth Amendment grounds. As pertinent
here, he argued that the 2015 search of his digital camera was unconstitutional
under Riley v. California, 573 U.S. 373 (2014), or, in the alternative, that the
search was unconstitutional because it occurred after probable cause supporting
the 2006 warrant had “dissipated.” In Riley, the United States Supreme Court held

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that law enforcement officers are generally required to obtain a warrant to search
the contents of a cell phone that has been lawfully seized incident to arrest. Id. at
401.

¶9 The circuit court denied Clayton-Jones’s postconviction motion
without a hearing. The court distinguished Riley on the ground that the cell phone
in that case was seized incident to arrest rather than pursuant to a warrant. The
court further determined that the probable cause that supported the warrant in 2006
still existed at the time of the 2015 examination of the camera’s memory card.
The court reasoned that “both items remained in the custody of law enforcement
since the time of their seizure”; that, at the time of the examination, both the
camera and the memory card were still “capable of containing pornographic
movies and videos”; and that “[t]he passage of time in no way [a]ffected that.”
This appeal follows.

DISCUSSION

I. Standard of Review

¶10 Clayton-Jones asks that we reverse the denial of his postconviction
motion and grant him an evidentiary hearing. “A hearing on a postconviction
motion is required only when the movant states sufficient material facts that, if
true, would entitle the defendant to relief.” State v. Allen, 2004 WI 106, ¶14,
274 Wis. 2d 568, 682 N.W.2d 433. “This is a question of law that we review de
novo.” Id., ¶9.

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No. 2019AP924-CR

¶11 A circuit court may deny a postconviction motion without a
Machner2 hearing if the motion fails to raise facts sufficient to entitle the movant
to relief, the movant presents only conclusory allegations, or the record
conclusively shows that the movant is not entitled to relief. See State v. Sulla,
2016 WI 46, ¶23, 369 Wis. 2d 225, 880 N.W.2d 659.

¶12 Clayton-Jones argues that his trial attorneys were ineffective for
failing to move to suppress the contents of the digital camera’s memory card.
When reviewing a claim of ineffective assistance of counsel, this court upholds the
circuit court’s factual findings unless they are clearly erroneous, and we
independently determine whether counsel was ineffective. State v. Carter,
2010 WI 40, ¶19, 324 Wis. 2d 640, 782 N.W.2d 695. Likewise, when reviewing a
decision on a motion to suppress evidence, this court upholds the circuit court’s
factual findings unless they are clearly erroneous but we independently apply
constitutional principles to the facts. State v. Matalonis, 2016 WI 7, ¶28,
366 Wis. 2d 443, 875 N.W.2d 567.

II. Ineffective Assistance of Counsel

¶13 Clayton-Jones argues that his trial attorneys were ineffective for
failing to move to suppress the contents of the digital camera’s memory card on
the ground that the search of the memory card was unconstitutional under the
Fourth Amendment to the United States Constitution and article I, section 11 of

2
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2019AP924-CR

the Wisconsin Constitution.3 He contends that the 2006 warrant did not support a
search of the camera and memory card at any time or, in the alternative, that the
probable cause supporting the 2006 warrant had dissipated by 2015, when the
memory card was examined.4

¶14 The Sixth Amendment to the United States Constitution guarantees
criminal defendants the right to effective counsel. Strickland v. Washington,
466 U.S. 668, 686 (1984). “For a claim of ineffective assistance of counsel to be
successful, a defendant must demonstrate both that (1) counsel’s representation
was deficient; and (2) the deficiency was prejudicial.” State v. Dalton, 2018 WI
85, ¶32, 383 Wis. 2d 147, 914 N.W.2d 120. “To demonstrate deficient
performance, a defendant must show that counsel’s representation fell below an
objective standard of reasonableness considering all the circumstances.” Id., ¶34.
“In determining whether counsel’s performance was deficient for failing to bring a
motion, we may assess the merits of that motion.” State v. Sanders, 2018 WI 51,
¶29, 381 Wis. 2d 522, 912 N.W.2d 16.

¶15 “In order to constitute deficient performance, the law must be settled
in the area in which trial counsel was allegedly ineffective.” State v. Hanson,
2019 WI 63, ¶28, 387 Wis. 2d 233, 928 N.W.2d 607. “When the law is unsettled,
the failure to raise an issue is objectively reasonable and therefore not deficient
performance.” State v. Jackson, 2011 WI App 63, ¶10, 333 Wis. 2d 665, 799

3
Wisconsin courts generally follow the United States Supreme Court’s interpretation of
the Fourth Amendment when interpreting the analogous provision in the Wisconsin Constitution.
See State v. Richardson, 156 Wis. 2d 128, 137, 456 N.W.2d 830 (1990). Because Clayton-Jones
does not raise any separate arguments based on the Wisconsin Constitution, for ease of reading
we reference his constitutional arguments as “Fourth Amendment” arguments.
4
The State does not argue that any exception to the warrant requirement applies here.

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No. 2019AP924-CR

N.W.2d 461. The law is unsettled “[w]hen case law can be reasonably analyzed in
two different ways,” id., or when “Wisconsin law was not clear at the time of [the
alleged deficient performance],” State v. Morales-Pedrosa, 2016 WI App 38, ¶26,
369 Wis. 2d 75, 879 N.W.2d 772.

¶16 When a defendant argues that counsel was ineffective for not raising
a certain issue, a court generally is “confined to considering the narrower issue of
whether the law was so well settled that counsel’s performance was legally
deficient.” See State v. Breitzman, 2017 WI 100, ¶56, 378 Wis. 2d 431,
904 N.W.2d 93. Where the law is unsettled, a court “need not address the merits”
of the issue that counsel failed to raise. See State v. Lemberger, 2017 WI 39,
¶¶32-35, 374 Wis. 2d 617, 893 N.W.2d 232.

¶17 For the reasons set forth below, we conclude that Clayton-Jones’s
Fourth Amendment arguments in support of his ineffective assistance claim
depend, at most, on unsettled law and that therefore the claim must fail. Thus, he
is not entitled to an evidentiary hearing. See Sulla, 369 Wis. 2d 225, ¶29 (“‘[A]n
evidentiary hearing is not mandatory if the record as a whole conclusively
demonstrates that defendant is not entitled to relief ....’” (quoting State v. Howell,
2007 WI 75, ¶77 n.51, 301 Wis. 2d 350, 734 N.W.2d 48)).

III. Scope of the 2006 Warrant and Riley

¶18 Clayton-Jones’s first argument in support of his claim of ineffective
assistance posits that counsel was ineffective for failing to move to suppress the
contents of the memory card because the 2006 warrant did not authorize a search
of the digital camera or its memory card at any time. He contends that the 2006
warrant authorized the search of “premises,” identified as a house, but did not
authorize the search or forensic analysis of electronic files. Clayton-Jones

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No. 2019AP924-CR

acknowledges that the 2006 warrant allowed law enforcement to search his house
for, among other things, “pornographic movies and videotapes.” However, he
argues that, pursuant to Riley, the warrant did not authorize the search of the
memory card.5

¶19 In Riley, police arrested the defendant during a traffic stop and then
searched his cell phone without a warrant. Riley, 573 U.S. at 378-79. The United
States Supreme Court held that, in general, “the search incident to arrest exception
does not apply to cell phones.” Id. at 401. In reaching this conclusion, the Court
discussed the “cache of sensitive personal information” available on a modern cell
phone. See id. at 395-96. The Court explained that this “broad array of private
information” supported treating cell phones differently than other types of physical
evidence for purposes of searches incident to arrest. See id. at 395-97.

¶20 In rejecting Clayton-Jones’s ineffective assistance of counsel claim,
the circuit court distinguished Riley, concluding that Riley’s reasoning was limited
to the context of warrantless searches incident to arrest. In contrast to the facts of
Riley, Clayton-Jones’s digital camera was seized pursuant to a search warrant that
allowed officers to search for “pornographic movies and videotapes.” Thus, the
court concluded that the search warrant authorized the forensic examination of the
memory card. In support of this conclusion, the court relied on three cases, the
most relevant of which is State v. Petrone, 161 Wis. 2d 530, 468 N.W.2d 676

5
Clayton-Jones argues that, “at least in the area of warrantless searches,” our supreme
court has recognized that the initial seizure of a digital object must be separated from the
subsequent analysis of it. He relies on State v. Sobczak, 2013 WI 52, 347 Wis. 2d 724, 833
N.W.2d 59, and State v. Carroll, 2010 WI 8, 322 Wis. 2d 299, 778 N.W.2d 1. Clayton-Jones
does not discuss these pre-Riley cases in any detail. We conclude that they are not instructive
here because they do not involve warranted searches and address searches of a laptop computer
and a cell phone, respectively.

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No. 2019AP924-CR

(1991), abrogated on other grounds by State v. Greve, 2004 WI 69, ¶31 & n.7,
272 Wis. 2d 444, 681 N.W.2d 479.

¶21 In Petrone, police executed a search warrant at the defendant’s home
and seized undeveloped film. Id. at 538. Police developed the film the next day at
the police station and discovered that it contained pictures of naked, underage
girls. Id. at 538-39. The defendant argued that “developing the film later at the
police station was a second, separate search for which a warrant should have been
obtained.” Id. at 544. Our supreme court rejected this argument, concluding that
“[a] search warrant does not limit officers to naked-eye inspections of objects
lawfully seized in the execution of a warrant.” Id. at 544-45. The court reasoned:
“Developing the film is simply a method of examining a lawfully seized object.
Law enforcement officers may employ various methods to examine objects
lawfully seized in the execution of a warrant.” Id. at 545. The court noted, for
example, that “blood stains or substances gathered in a lawful search may be
subjected to laboratory analysis.” Id. The court further explained that “[t]he
deputies simply used technological aids to assist them in determining whether
items within the scope of the warrant were in fact evidence of the crime alleged.”
Id.

¶22 The circuit court also relied on two cases involving the search and
seizure of blood from intoxicated drivers, United States v. Snyder, 852 F.2d 471
(9th Cir. 1988), and State v. Riedel, 2003 WI App 18, 259 Wis. 2d 921,
656 N.W.2d 789. In Snyder, the court concluded that the United States Supreme
Court, in Schmerber v. California, 384 U.S. 757 (1966), “viewed the seizure and
separate search of the blood as a single event for fourth amendment purposes” and
that the Schmerber Court “therefore necessarily viewed the right to seize the

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No. 2019AP924-CR

blood as encompassing the right to conduct a blood-alcohol test at some later
time.” Snyder, 852 F.2d at 474.

¶23 In Riedel, the defendant challenged the testing of his lawfully seized
blood, arguing that the testing was a second search that required a warrant.
Riedel, 259 Wis. 2d 921, ¶¶2, 4, 7. Relying on Petrone and Snyder, we rejected
the defendant’s argument, stating: “Snyder and Petrone stand for the proposition
that the ‘examination of evidence seized pursuant to the warrant requirement or an
exception to the warrant requirement is an essential part of the seizure and does
not require a judicially authorized warrant.’” Riedel, 259 Wis. 2d 921, ¶16
(quoting State v. VanLaarhoven, 2001 WI App 275, ¶16, 248 Wis. 2d 881,
637 N.W.2d 411).

¶24 Based on its analysis of Petrone, Snyder, and Riedel, the circuit
court concluded that Clayton-Jones’s memory card was “lawfully seized and
eventually analyzed or examined.” The State argues that the circuit court’s
reliance on these cases was appropriate and that Riley’s holding is limited not only
to searches incident to arrest, as determined by the circuit court, but also to
searches of cell phones.

¶25 Clayton-Jones disagrees that Riley is inapplicable. He first contends
that Riley’s reasoning should apply equally to cases involving warrants and that
there is no logical basis to conclude that “the same sequence of events should be
considered two searches in the absence of a warrant and one search in the presence
of [a warrant].” Second, he argues that the rationale in Riley should not be limited
to cell phones but should also include digital cameras. He argues that a digital
camera, like a cell phone, has significant storage capacity; that the photographs on
a digital camera could reveal significant details about the owner’s private life; and

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No. 2019AP924-CR

that a digital camera can reveal which camera took a picture, and when and where
the photograph was taken. He also argues that the three cases upon which the
circuit court relied are distinguishable because they are pre-Riley cases, do not
involve digital media, and therefore do not implicate the same privacy concerns as
the cell phone in Riley or the memory card here.

¶26 Notably, Clayton-Jones has not provided any case from this
jurisdiction or any other jurisdiction in which a court has expanded the Riley
Court’s rationale to either warrant searches or digital cameras.

¶27 Conversely, the State has provided case law from other jurisdictions
and unpublished opinions from this court indicating that Riley’s holding does not
extend beyond searches of cell phones and searches incident to arrest. See, e.g.,
State v. Inman, 409 P.3d 1138, 1146 (Wash. Ct. App. 2018) (stating that, in Riley,
“the Court explicitly limited this holding to cell phones seized during searches
incident to arrest”); Commonwealth v. Hernandez, No. BRCR2013-00983, 2014
WL 6092216, at *13 n.12 (Mass. Super. Ct. Aug. 26, 2014) (unpublished)
(collecting cases and stating that “subsequent cases have emphasized that Riley is
inapplicable where a cell phone is searched pursuant to a warrant”); State v.
Gallagher, No. 2017AP1403-CR, unpublished slip op. ¶¶9-12 (WI App Apr. 5,
2018) (finding no conflict between Riley and Riedel, and stating that it is not
“apparent how Riley might be applied outside the context of a search incident to
arrest”); State v. Schneller, No. 2016AP2474-CR, unpublished slip op. ¶9 (WI
App June 22, 2017) (concluding that Riedel does not conflict with Riley because
“Riley addressed the narrow issue of whether a warrant is required to search a cell
phone that is seized incident to an arrest”).

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No. 2019AP924-CR

¶28 Our research likewise reveals authority that supports the State’s
interpretation. See United States v. Vergara, 884 F.3d 1309, 1312 (11th Cir.
2018) (“In Riley, the Supreme Court addressed the constitutionality of warrantless
manual searches of cell phones following the arrest of two defendants in the
United States. And the Supreme Court expressly limited its holding to the search-
incident-to-arrest exception.” (citation omitted)); United States v. Crumble,
878 F.3d 656, 660 (8th Cir. 2018) (“Riley’s holding is limited to cell phones
seized incident to arrest.”); United States v. Cano, 973 F.3d 966, 969 n.7 (9th Cir.
2020) (“In Riley, the Court held ‘a warrant is generally required before … a search
[for information on a cell phone], even when a cell phone is seized incident to
arrest.’ The Court limited this holding only to the search incident to arrest
exception.” (citations omitted; bracketed material in original)).

¶29 Indeed, one federal case upon which the State relies, United States v.
Miller, 34 F. Supp. 3d 695 (E.D. Mich. 2014), is very similar to the instant case
and also involved a search of a digital camera pursuant to a warrant. In Miller,
police searched the defendant’s residence pursuant to a warrant that authorized a
search of the residence for suspected drugs and firearms, “‘[a]ll items used in
connection with the use, manufacturing, storage, transportation, sales and/or
concealment’” of drugs, and “‘[a]ll items establishing ownership, control,
occupancy, or possession’” of the residence described. Id. at 697. During the
execution of the warrant, police found defendant’s digital camera and, while
examining it, discovered images of young girls engaged in sexual acts. Id. The
defendant moved to suppress, arguing that the examination of the digital camera
violated his Fourth Amendment rights under Riley. Miller, 34 F. Supp. 3d at 698-
99.

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No. 2019AP924-CR

¶30 The Miller court rejected the defendant’s arguments, concluding that
Riley was distinguishable on the two grounds at issue here: first, Riley “involved
a warrantless search incident to arrest, while this case involves a warranted search
of a home” and “[a] different mode of analysis pertains to each,” and second, “the
search of [a] camera does not raise the same privacy concerns as a cell phone.”
Miller, 34 F. Supp. 3d at 699. In comparing the privacy interests in digital
cameras versus cell phones, the court further explained:

Dedicated cameras, unlike cell phones, are unlikely to be
used on a continuing, daily basis, and therefore do not boast
the extensive amount of personal information commonly
present in cell phones. Contemporary cell phones are
commonly understood to be much more than telephones.
Frequently they will record an individual’s internet
browsing history, a list of that individual’s contacts, calls,
and text messages, as well as detailed GPS data revealing
the individual’s movements. In contrast, cameras contain a
limited type of data, restricted to image and video files, that
do not touch the breadth or depth of information that a cell
phone’s data offers. Digital cameras also hold significantly
less data than many cell phones ….

... [B]ecause of its relatively limited capacities, a
search of a dedicated digital camera does not pose the same
kinds of privacy concerns as does the search of a
contemporary “smart phone.” Defendant is unable to
successfully analogize his case to Riley ....

Id. at 699-700. Accordingly, the court held that “the search of Defendant’s
camera fell within the scope of a warranted drug investigation and police did not
need specific, additional warrant authorization to search initially within the
camera.” Id. at 700.

¶31 Our review of the cases discussed above leads us to conclude that, at
most, Clayton-Jones’s arguments rest on an area of the law that is unsettled. In the
State’s favor, Petrone—concluding that a warrant authorizing the seizure of a
camera also authorizes developing the camera’s film—could be reasonably viewed

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No. 2019AP924-CR

as deciding the issue here. As stated, our supreme court explained in Petrone that
“[a] search warrant does not limit officers to naked-eye inspections of objects
lawfully seized in the execution of a warrant”; that “[d]eveloping the film is
simply a method of examining a lawfully seized object”; and that “[l]aw
enforcement officers may employ various methods to examine objects lawfully
seized in the execution of a warrant.” Petrone, 161 Wis. 2d at 544.

¶32 On the other hand, Clayton-Jones is correct that Petrone is factually
dissimilar from the instant case because Petrone involved an “old-fashioned
camera” rather than digital media as in Riley. He further argues that Petrone
conflicts with Riley to the extent that Petrone assumes that the lawful possession
of a device makes the analysis of the media in that device lawful too. In response,
however, the State makes a compelling argument, supported by non-binding
authority, that Riley does not apply because the search here was pursuant to a
warrant and did not involve a cell phone. And, as stated, Clayton-Jones has
provided no authority from Wisconsin or anywhere else in which a court has
applied Riley to either a warranted search or a search of a digital camera, which
strongly cuts against his claim. See Morales-Pedrosa, 369 Wis. 2d 75, ¶26 (law is
unsettled when “Wisconsin law was not clear at the time of” the alleged deficient
performance); Jackson, 333 Wis. 2d 665, ¶10 (law is unsettled “[w]hen case law
can be reasonably analyzed in two different ways”).

¶33 Because Clayton-Jones’s appeal raises an ineffective assistance of
counsel claim rather than a direct Fourth Amendment claim, we need not resolve
the merits of Clayton-Jones’s Fourth Amendment argument predicated on Riley.
Rather, we need only consider “the narrower issue of whether the law was so well
settled that counsel’s performance was legally deficient.” Breitzman, 378 Wis. 2d
431, ¶56. Based on our review, we conclude that the law is, at most, unsettled as

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No. 2019AP924-CR

to whether the forensic examination of the digital camera was permissible
pursuant to Petrone, or impermissible under Riley. And as previously stated,
“[w]hen the law is unsettled, the failure to raise an issue is objectively reasonable
and therefore not deficient performance.” Jackson, 333 Wis. 2d 665, ¶10.6

¶34 Thus, we reject Clayton-Jones’s argument that he received
ineffective assistance of counsel due to his counsel’s failure to bring a suppression
motion on this ground. See Strickland, 466 U.S at 697 (if defendant fails to prove
one prong of the Strickland test for ineffective assistance of counsel, a court need
not address the other prong).

IV. Dissipation Argument

¶35 Clayton-Jones’s alternative argument in support of his ineffective
assistance claim is that the probable cause supporting the 2006 warrant had
dissipated by the time of the 2015 forensic examination of the memory card. This
is so, he argues, because he could no longer be charged with the two crimes
specifically mentioned in the warrant, exposing a child to harmful material and
first-degree child sexual assault. Specifically, he contends that the “statute of

6
In his reply brief, Clayton-Jones asks us to reject the Wisconsin Supreme Court’s
“unsettled law” approach taken in cases such as State v. Hanson, 2019 WI 63, ¶28, 387 Wis. 2d
233, 928 N.W.2d 607, and State v. Breitzman, 2017 WI 100, ¶49, 378 Wis. 2d 431, 904 N.W.2d
93, and to instead adopt an approach taken by courts in Iowa and Oregon in which defense
counsel may be deemed deficient in certain circumstances, even where the law is unsettled. See
Millam v. State, 745 N.W.2d 719 (Iowa 2008); Bumgarner v. Nooth, 295 P.3d 52 (Or. Ct. App.
2012). However, we are without authority to grant this request because we are bound by the
decisions of our supreme court. See, e.g., Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d
246 (1997). Additionally, Clayton-Jones contends that the “unsettled law” rationale articulated
by our supreme court in Hanson, Breitzman, and other cases conflicts with the United States
Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 687 (1984), to the extent
that they do not allow for the approaches taken in cases such as Millam and Bumgarner.
Clayton-Jones does not persuade us that such a conflict exists.

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No. 2019AP924-CR

limitations on the crime of exposing a child to harmful material ... expired in the
summer of 2012, three years before the detective searched the camera and memory
card,” and that the circuit court’s dismissal of the 2008 sexual assault case on
double jeopardy grounds would have precluded a sexual assault charge based on
the contents of the digital camera.

¶36 The State responds that Clayton-Jones’s dissipation argument is
meritless, or at least novel, and that therefore Clayton-Jones’s trial attorneys did
not perform deficiently by not raising a dissipation argument in a suppression
motion. First, the State contends that a dissipation analysis does not apply to an
examination of evidence that occurs after the execution of a search warrant. The
State notes that the execution of the warrant in this case occurred in 2006, not in
2015, and contends that the probable cause supporting the warrant had not
dissipated by the time of what it sees as the only constitutionally significant event
for purposes of dissipation analysis: the 2006 execution of the warrant. In
support, the State relies on Petrone, which, according to the State, “views the
execution of a search warrant as the event when police seize evidence, not the later
examination of the evidence.” See Petrone, 161 Wis. 2d at 545 (concluding that
“[l]aw enforcement officers may employ various methods to examine objects
lawfully seized in the execution of a warrant” and that “[d]eveloping the film is
simply a method of examining a lawfully seized object”).

¶37 Second, even assuming the search of the memory card constituted a
second execution of the warrant as Clayton-Jones argues, the State contends that
there is no merit in, or at least that the law is uncertain regarding, Clayton-Jones’s
argument that probable cause dissipates merely because a defendant has an
affirmative defense to the criminal statutes mentioned in the search warrant. As
stated, the affirmative defenses that Clayton-Jones argues are applicable here are

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No. 2019AP924-CR

the six-year statute of limitations for exposing a child to harmful material and a
double-jeopardy bar to a charge of child sexual assault because these were the
specific offenses referred to in the warrant.7

¶38 We agree with the State that Clayton-Jones’s dissipation argument
rests on legal theories that are, at most, unsettled. We therefore conclude that
Clayton-Jones’s trial attorneys were not ineffective for failing to bring a
suppression motion based on the dissipation theory that Clayton-Jones advances
here.

¶39 We note that Clayton-Jones has not provided any authority that
applies a dissipation analysis to circumstances such as those in the instant case, in
which a search warrant is initially executed and police later conduct an
examination of an item lawfully seized during the warrant’s execution. Rather, in
all of the cases on which Clayton-Jones relies, the courts considered whether the
probable cause supporting the warrant’s issuance had dissipated prior to the initial
execution of the warrant, not whether it had dissipated prior to the later inspection
of the seized items. See State v. Edwards, 98 Wis. 2d 367, 377, 297 N.W.2d 12
(1980) (defendant may seek suppression of evidence by arguing “that the probable
cause upon which the warrant originally issued had dissipated at the time the
warrant was executed” (emphasis added)); State v. Guthrie, 627 N.W.2d 401,
422-23 (S.D. 2001) (noting that a new finding of probable cause was needed to
justify the initial seizure of a computer because six months had passed between
issuance of the warrant and seizure of the computer).

7
We observe that, although the warrant mentioned charges for first-degree child sexual
assault and exposing a child to harmful material, Clayton-Jones was actually convicted of child
sexual exploitation.

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No. 2019AP924-CR

¶40 Clayton-Jones has not provided any authority, controlling or
otherwise, to show that the forensic examination of the memory card constituted a
second “execution” of the warrant, or that, contrary to the Petrone rationale
discussed above, the forensic examination was a second search rather than part of
the initial search conducted pursuant to the 2006 warrant. Thus, it is questionable
whether the dissipation analysis even applies here.

¶41 However, even assuming that the dissipation rule applies to
examination of evidence lawfully seized pursuant to a warrant, the State argues
that an affirmative defense does not negate probable cause for a warrant, and
provides authority from other jurisdictions in support of its position. See, e.g.,
Paez v. Mulvey, 915 F.3d 1276, 1286 (11th Cir. 2019) (“So long as it is reasonable
to conclude from the body of evidence as a whole that a crime was committed, the
presence of some conflicting evidence or a possible defense will not vitiate a
finding of probable cause.”); Fridley v. Horrighs, 291 F.3d 867, 873 (6th Cir.
2002) (holding that “a police officer is not required to inquire into facts and
circumstances in an effort to discover if the suspect has an affirmative defense”
and noting that two of its prior decisions did not “hold that the probable cause
determination requires an examination of a suspect’s legal defenses”); Pickens v.
Hollowell, 59 F.3d 1203, 1207-08 (11th Cir. 1995) (concluding that “police
officers have no responsibility to determine the viability of a statute of limitations
defense when executing a valid arrest warrant” and that “[t]he existence of a
statute of limitations bar is a legal question that is appropriately evaluated by the
district attorney or by a court after a prosecution is begun, not by police officers
executing an arrest warrant”). At a minimum, the State argues, the law is
unsettled because “no binding precedent” holds that an affirmative defense negates

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No. 2019AP924-CR

probable cause to search and therefore trial counsel cannot be deemed deficient in
failing to raise this dissipation argument.

¶42 In response, Clayton-Jones does not provide any authority negating
that provided by the State. Instead, he argues that the cases the State relies on are
distinguishable because this case involves more than an affirmative defense: here,
law enforcement actually knew in 2015 that Clayton-Jones had been convicted and
that all cases against him had been resolved, which, according to Clayton-Jones,
“tells them the 2006 search warrant lacked viability.” In support, Clayton-Jones
quotes the detective’s affidavit regarding her 2015 forensic analysis of the
memory card, in which the detective stated: “[A]fter Defendant’s cases were
closed I was notified that Defendant was requesting return of all of his property.”
Clayton-Jones further argues that the cases relied on by the State are inapplicable
because they are civil cases involving qualified immunity.

¶43 As previously stated, however, because this case involves a claim of
ineffective assistance of counsel rather than a direct Fourth Amendment claim, we
need decide only whether the law was sufficiently settled that Clayton-Jones’s trial
lawyers could be deemed deficient by not raising this Fourth Amendment
argument. See Breitzman, 378 Wis. 2d 431, ¶56. Clayton-Jones has not
established that the law clearly prohibited police from examining the memory card
in 2015 because he could not be prosecuted for the two crimes referenced in the
warrant. At most, he has demonstrated that the law is unsettled on this point. As a
result, he cannot succeed on a claim of ineffective assistance of counsel. See
Hanson, 387 Wis. 2d 233, ¶28.

¶44 In sum, Clayton-Jones has failed to show that his trial attorneys were
ineffective for failing to move to suppress the evidence found on the digital

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No. 2019AP924-CR

camera’s memory card. Accordingly, the circuit court properly denied his
postconviction motion without a hearing. See Sulla, 369 Wis. 2d 225, ¶29
(“evidentiary hearing is not mandatory if the record as a whole conclusively
demonstrates that defendant is not entitled to relief”).

CONCLUSION

¶45 For the reasons stated above, we affirm the circuit court’s order
denying Clayton-Jones’s postconviction motion without a hearing.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5. (2017-18).

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