July 27, 2012 – A criminal defendant argued that a Kenosha County prosecutor brought new charges to punish him for rejecting a plea deal and forcing a trial. But this “vindictive prosecution” argument didn’t fly with a state appeals court.

In State v. Cameron, 2011AP1368-CR (July 25, 2012), the District II Wisconsin Court of Appeals upheld Troy Cameron’s convictions for possessing child pornography, rejecting the vindictive prosecution argument and upholding a trial court’s denial of his motion to suppress evidence.

In 2003, while Cameron was in jail for domestic violence, Cameron’s girlfriend found child pornography in the couple’s home, called police, and let them take the evidence. Eventually, the state charged Cameron with 14 counts of possessing child pornography.

After Cameron rejected a plea offer, the state filed 14 more counts based on evidence uncovered from Cameron’s computer hard drive. Ultimately, he was charged on 26 counts.

Cameron filed a motion to dismiss 14 counts based on vindictive prosecution, citing a letter in which the prosecutor told Cameron’s attorney that “’[s]ince Cameron would not plead to the charged counts, and since we now have additional evidence, I have charged the new case.”

He also argued the prosecutor purposely waived charges against his girlfriend for theft to preserve her credibility as a witness in the case against Cameron. With a motion to suppress, Cameron also challenged his girlfriend’s authority to consent to a search of his belongings.

The trial court rejected Cameron’s motions, and a jury found him guilty on 14 of the 26 counts.

In rejecting Cameron’s claim against the prosecutor, the appeals court noted that “the filing of these charges, even though filed after Cameron decided not to plead, does not alone establish presumptive or actual vindictiveness,” and Cameron’s objective evidence was lacking.

“In short, we agree with the trial court that there is no objective evidence that the prosecutor acted in order to punish Cameron for standing on his legal rights,” wrote Judge Lisa Neubauer for a three-judge appeals court panel.

The appeals court also downed Cameron’s suppression claim. He argued that his girlfriend did not have authority to consent to a search of his duffel bag inside the house, and police did not have a warrant to search the bag. But the appeals court viewed it as a “private” search, noting that Cameron’s girlfriend searched the bag and voluntarily gave it to police.

“[T]he Fourth Amendment protects individuals against unlawful intrusions made by the government, not against those made by private parties,” Judge Neubauer wrote. “In other words, the Fourth Amendment is not implicated when articles discovered in a private search are turned over to the government.”

Joe Forward is the legal writer for the State Bar of Wisconsin.