2021 WI APP 30

COURT OF APPEALS OF WISCONSIN

PUBLISHED OPINION

Case No.: 2019AP826-CR

Complete Title of Case: 

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

KEVIN M. JERECZEK,

 DEFENDANT-APPELLANT.

Opinion Filed: April 6, 2021

Submitted on Briefs: March 17, 2020

Oral Argument: 

JUDGES: Stark, P.J., Hruz and Seidl, JJ.

Concurred:

Dissented:

Appellant

ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the 

briefs of Erica L. Bauer, Appleton. 

Respondent

ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the 

brief of Joshua L. Kaul, attorney general, and Sarah L. Burgundy, 

assistant attorney general. 
2021 WI App 30

COURT OF APPEALS

DECISION

DATED AND FILED

April 6, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 and 

RULE 809.62. 

Appeal No. 2019AP826-CR Cir. Ct. No. 2016CF906

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

KEVIN M. JERECZEK,

 DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Brown County: 

JOHN ZAKOWSKI, Judge. Reversed and cause remanded with directions.

Before Stark, P.J., Hruz and Seidl, JJ. 

¶1 HRUZ, J. Kevin Jereczek appeals a judgment convicting him of a 

single count of possession of child pornography as a party to the crime. Jereczek 

argues the circuit court erroneously denied his suppression motion, in which he 

alleged that law enforcement had exceeded the scope of consent he had given to 
No. 2019AP826-CR

2

search their family computer. Specifically, Jereczek and the State stipulated that he 

had told officers they could search only his son’s user account on the computer.

¶2 We conclude law enforcement exceeded the scope of that consent 

when they began their forensic examination of the computer’s hard drive by 

examining the drive’s recycle bin container, which aggregated the deleted files of 

all of the computer’s users, including Jereczek. When a person limits his or her 

consent to search to a particular user account on an electronic device, a reasonable 

person would interpret that consent as being limited to only those files accessible 

from that account’s user interface. In other words, and contrary to the State’s 

argument, Jereczek’s consent did not authorize a search of all files in any shared 

areas in the computer where data associated with the son’s user profile might be 

found. It authorized a search of only those areas and files visible when one operates 

within a particular user’s account—here, the son’s. 

¶3 The law enforcement analyst in this case testified that a particular 

user, while operating within his or her own account, cannot view the deleted files of 

another user. The analyst also testified that he knew he was likely to encounter the 

files of other users in the computer’s recycle bin while using his forensic software 

to search the computer. The search of the entire recycle bin was therefore unlawful, 

and the evidence derived from that search should have been suppressed. We reverse 

and remand for the circuit court to grant Jereczek’s suppression motion and for 

further proceedings consistent with this opinion. 

BACKGROUND

¶4 A criminal complaint and an Information charged Jereczek with 

eleven counts of possession of child pornography as a party to the crime. The 

complaint alleged that Jereczek’s son was a suspect in a sexual assault investigation, 
No. 2019AP826-CR

3

and police believed that the family computer the son used may have had 

pornography on it related to the assault. Police met with Jereczek, who gave a 

desktop computer to police for forensic analysis with the instruction that police were 

to limit their analysis to the son’s user account. 

¶5 As described in more detail below, police discovered images 

appearing to be child pornography when they began their forensic review of the 

computer’s hard drive—specifically, of its recycle bin. Based on these findings, 

police obtained a warrant to search the entire hard drive. Jereczek filed a motion to 

suppress the images discovered during the initial forensic analysis and during the 

subsequent warrant search, asserting that the scope of the initial search exceeded the 

consent Jereczek had given insomuch as it included the review of files outside of 

the son’s user account. 

¶6 At the hearing on Jereczek’s motion, he and the State reached a 

stipulation regarding the scope of consent he had given to search the computer.1 

Specifically, the parties agreed that Jereczek had given limited consent that allowed 

police to search only his son’s user account. The evidentiary portion of the hearing 

was held to ascertain whether the initial, pre-warrant forensic analysis of the hard 

drive occurred within the scope of that consent. The only witness to testify was 

Tyler Behling, the computer forensic crime analyst who had analyzed the hard drive 

for the Brown County Sheriff’s Department. 

¶7 Behling testified he had received the computer from an officer with 

instructions to locate images of child pornography on the son’s user account. 

Behling removed the hard drive, which had the Windows 7 operating system 

 

1

 Police had audio recorded the conversation in which Jereczek provided consent to search 

the computer. 
No. 2019AP826-CR

4

installed, and connected it to a “write blocker” to prevent modifying the data on the 

hard drive disc. He also used software called EnCase to examine the contents of the 

file system on the drive. Behling testified that the software shows law enforcement 

the file system and data structure of the hard drive, and it “allows us an overview of 

the entire contents of the disc.” 

¶8 Behling explained that he began his search in the computer’s recycle 

bin container, at which time he discovered that it contained child pornography that 

had been deleted from two user accounts.2 Based upon this discovery, Behling 

applied for a search warrant for the entire contents of the hard drive. According to 

Behling, the recycle bin is “a container to temporar[ily] hold files that a user would 

delete.” The recycle bin is a shared container on the hard drive into which any user 

on a multi-user operating system is able to place discarded files. 

¶9 Behling provided further details about how a recycle bin functions. If 

a user logged into a particular account deletes a file (thereby placing the file in the 

recycle bin), that user would be able to view the deleted file from his or her account, 

but other users logged into different accounts would not be able to see it. Because 

Behling’s forensic software read data directly from the hard drive disc and did not 

use the operating system’s user interface, Behling could view the aggregate files 

placed in the recycle bin by all of the computer’s users. In other words, under the 

approach Behling used, the files appearing in the recycle bin were not separated by 

user account. Behling was aware when he accessed the recycle bin that he would 

likely find files deleted by other user accounts. 

 

2

 One user profile belonged to Jereczek, and one belonged to his son. 
No. 2019AP826-CR

5

¶10 When Behling initially discovered that there were files containing 

child pornography in the recycle bin, he did not know the user account or accounts 

from which they had come. He used other software to examine registry data—

which is external to any user account—to identify “artifacts about the user account,” 

including the groups to which the user belongs, the user’s security identifier, and 

the user’s last log-in date. Using a globally unique identifier associated with each 

of the deleted files, Behling was able to connect the deleted images to particular 

user accounts, at which point he applied for the warrant. Behling stated that prior 

to obtaining the warrant, he did not believe he had accessed any particular user 

account. 

¶11 Behling also provided additional testimony about the scope of consent 

provided in relation to his forensic examination. Behling was aware that Windows 

by default includes multiple user accounts, that there were in fact multiple user 

accounts on the operating system, and that he was supposed to limit his analysis to 

the son’s user account. Behling testified there are “difficulties” with targeting a 

specific user profile when conducting a forensic search of a multi-user device, and 

for this reason he would typically “just start with a warrant” for such devices. 

Nonetheless, Behling stated that he did not explain to the referring detective any of 

his concerns regarding his technical ability to adhere to the scope of consent. 

¶12 Moreover, Behling conceded that he could have limited his search of 

the hard drive in a way that was consistent with the scope of consent. Although he 

initially testified it was impractical to restrict a search to a particular user’s profile, 

he subsequently clarified that it was “not impossible” to do so, “but your exam 

would not be complete.” Instead, using the EnCase software, Behling could select 

to view all the user data under a single user profile. This type of analysis would be 

confined to the user’s “home profile path,” which is the file structure for each profile 
No. 2019AP826-CR

6

and includes “downloads, your documents, music, pictures, that type of material.” 

But Behling testified that such an analysis would exclude the recycle bin, something 

he “would never exclude” when looking for evidence of child pornography. 

¶13 The circuit court denied the suppression motion. It began its decision 

by emphasizing some of Behling’s testimony—in particular, that Behling usually 

started his analysis with the recycle bin because, in his experience, people would 

often delete illegal files after viewing them. The court also emphasized Behling’s 

testimony that he would never exclude the recycle bin from a search for child 

pornography and that he would eventually look at the files located there. After 

highlighting Behling’s testimony regarding the difficulties with limiting a forensic 

search to a particular user account, the court determined Behling did not exceed the 

scope of consent.3

¶14 Specifically, the circuit court concluded that even if Behling had 

started with the user data on the son’s account, Behling “would have followed the 

information into the recycle bin where he would have seen the multiple child porn 

images from the multiple user accounts.”4 The court applied the “inevitable 

discovery” doctrine as articulated in Nix v. Williams, 467 U.S. 431 (1984), and State 

v. Weber, 163 Wis. 2d 116, 471 N.W.2d 187 (1991), to conclude that Behling 

“would have eventually discovered the evidence of the crime in the recycle bin and 

then asked for a search warrant.” 

 

3

 The circuit court wrote that law enforcement “did not exceed the scope of the warrant.” 

We presume this was an inadvertent misstatement, as law enforcement’s compliance with the scope 

of Jereczek’s consent—not the scope of the warrant—was the only issue presented for resolution. 

4

 The circuit court did not explain what information derived from the son’s user account 

would have led law enforcement to the recycle bin. 
No. 2019AP826-CR

7

¶15 Following the suppression ruling, Jereczek entered a no-contest plea 

to a single count of possession of child pornography as a party to the crime. The 

remaining counts were dismissed outright. The parties agreed to jointly recommend 

a sentence consisting of three years’ initial confinement and five years’ extended 

supervision. The court accepted that recommendation. Jereczek now appeals, 

challenging the denial of his suppression motion under WIS. STAT. § 971.31(10) 

(2019-20).5 

DISCUSSION

¶16 The Fourth Amendment to the United States Constitution and article I, 

section 11 of the Wisconsin Constitution prohibit unreasonable searches and 

seizures.6 The protections extend to places and things in which a person has a 

reasonable expectation of privacy. State v. Tentoni, 2015 WI App 77, ¶7, 365 

Wis. 2d 211, 871 N.W.2d 285. Jereczek argues—and the State does not dispute—

that he had a reasonable expectation of privacy in the computer he and his son used. 

¶17 Warrantless searches are presumed to be unreasonable under the 

Fourth Amendment. State v. Matejka, 2001 WI 5, ¶17, 241 Wis. 2d 52, 621 N.W.2d 

891; see also Birchfield v. North Dakota, 136 S. Ct. 2160, 2173 (2016). “Consent 

is an exception to the warrant requirement.” State v. Abbott, 2020 WI App 25, ¶14, 

392 Wis. 2d 232, 944 N.W.2d 8. The consent exception is premised on the notion 

that it is reasonable for police to conduct a search if they have been permitted to do 

 

5

 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise 

noted.

6

 The protections under these provisions of the federal and state constitutions are usually 

interpreted coextensively. State v. Artic, 2010 WI 83, ¶28, 327 Wis. 2d 392, 786 N.W.2d 430. 
No. 2019AP826-CR

8

so by the person whose expectation of privacy is implicated. Florida v. Jimeno, 

500 U.S. 248, 250-51 (1991) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 

(1973)). Here, the parties stipulated that Jereczek provided consent to search the 

computer, but he limited that consent to his son’s user account.7

¶18 “The scope of consent to search may be limited by the terms of its 

authorization.” Matejka, 241 Wis. 2d 52, ¶37 (citing Walter v. United States, 447 

U.S. 649, 656 (1980)). When a person explicitly limits the scope of the 

consent-based search, courts will give effect to those limitations. See id.; see also 

Jimeno, 500 U.S. at 252. The scope of consent is measured by the breadth of the 

actual consent given, and courts determine whether the search remained within the 

boundaries of that consent by looking at the totality of the circumstances. United 

States v. Correa, 908 F.3d 208, 215 (7th Cir. 2018). 

¶19 More specifically, “[t]he standard for measuring the scope of a 

suspect’s consent under the Fourth Amendment is that of ‘objective’ 

reasonableness—what would the typical reasonable person have understood by the 

exchange between the officer and the suspect?” Jimeno, 500 U.S. at 251 (citations 

omitted). Importantly, when a defendant challenges the scope of consent, the State 

bears the burden of establishing by clear and convincing evidence that the 

warrantless search was reasonable and in compliance with the Fourth Amendment. 

Matejka, 241 Wis. 2d 52, ¶17. 

¶20 When reviewing a suppression motion, we apply a two-step standard 

of review. State v. Lonkoski, 2013 WI 30, ¶21, 346 Wis. 2d 523, 828 N.W.2d 552. 

We will uphold a circuit court’s factual findings unless they are clearly erroneous. 

 

7

 The parties do not present any issue related to Jereczek’s authority to consent to a search 

of his son’s user account on the computer. 
No. 2019AP826-CR

9

Id. We review de novo the application of those facts to the relevant constitutional 

principles. Id.

¶21 We conclude Behling plainly violated the scope of Jereczek’s consent, 

which gave police authority to search only his son’s user account. Despite this clear 

limitation, Behling began his search of the computer in the recycle bin, a location 

where he knew he was likely to find—and did find—not just files deleted from the 

son’s user account, but the deleted files of the computer’s other users as well. 

Indeed, further investigative efforts were necessary to determine precisely from 

which account each item of child pornography in the recycle bin had come. A search 

of the shared recycle bin container was therefore not a search of “the son’s account,” 

and it exceeded the scope of the consent that Jereczek had given law enforcement.

¶22 Our conclusion in this regard gives effect to what a reasonable person 

would have understood the consent limitation to mean. See Jimeno, 500 U.S. at 

251. Objectively speaking, when a person thinks of a particular user account on a 

computer, he or she is not likely thinking about where specific items of data are 

stored on the physical hard drive disc. Rather, the commonly understood meaning 

of a user account is an interface through which a user can access his or her own files, 

folders and personalization options.8 This is the type of information Behling 

testified constitutes the user’s “home profile path” on the hard drive—i.e., the user’s 

“downloads, ... documents, music, pictures, that type of material.” A search of a 

user account, therefore, is functionally a limited search of a particular area of a 

computer—i.e., everything accessible by that user account. Moreover, even Behling 

 

8

 See Gilberto Perera, How to Create a New User Account in Windows 7, LIFEWIRE

(updated Mar. 14, 2021), https://www.lifewire.com/create-user-account-in-windows-7-3506832.
No. 2019AP826-CR

10

did not regard the aggregate recycle bin as part of a user account, as he testified he 

did not believe he accessed a user account prior to obtaining a warrant. 

¶23 The recycle bin, to be sure, was accessible from the son’s user 

account, but only in a limited manner. Behling testified that when a particular user 

deletes a file from his or her account, that user would be able to see the deleted file, 

but other users logged into different accounts would not.9 On this record, there is 

no basis to conclude that Jereczek reasonably believed the consent he provided 

would allow law enforcement to access data from other user accounts, whether 

located in the recycle bin or elsewhere on the hard drive disk. Moreover, Jereczek 

authorized police to search within the recycle bin only to the extent the search was 

of data from the son’s user account. Behling’s review of the recycle bin’s aggregate 

contents from all users exceeded the explicit limitations Jereczek placed on the 

search. 

¶24 The State’s argument is, essentially, that the limitation Jereczek 

imposed “authorized [Behling] to access data associated with his son’s user profile.” 

(Emphasis added.) In the State’s view, this consent meant Behling “could access 

and search any area of Jereczek’s hard drive where his son’s user profile data could 

be found, including shared common areas of the computer.” (Emphasis added.) As 

we have explained, interpreting the scope of consent in this fashion relies on an 

overly technical understanding of how data is stored on a hard drive disk and how 

that data is accessed by law enforcement’s forensic software. It is not what a typical 

reasonable person would have understood, nor is it necessarily consistent with the 

 

9

 Notably, Behling did not attempt to access the son’s user account by more traditional 

means (e.g., by logging into the Windows user interface with the son’s account credentials). Doing 

so would have, according to Behling’s testimony, allowed him to view the files the son had placed 

in the recycle bin without exposing other users’ data to Behling’s review.
No. 2019AP826-CR

11

specific limitation Jereczek imposed. The State’s assertion that it is entitled to 

search anywhere that the son’s user data could be stored is therefore not objectively 

reasonable.

¶25 Nonetheless, in terms of authority, the State relies on case law that 

concerns container searches in vehicles and the plain view doctrine. “The scope of 

a search is generally defined by its expressed object.” Jimeno, 500 U.S. at 251. For 

example, when an officer asks for permission to search a vehicle for narcotics, it is 

implied that the officer is requesting permission to access any containers within the 

vehicle where narcotics might be stored. See id. From this principle, the State 

reasons that Jereczek was surely authorizing a search “in any areas where that data 

[i.e., any child pornography his son possessed] might be found.” Moreover, the 

State contends that because Behling was authorized to search the recycle bin 

container, any child pornography—from any user—he discovered during that search 

was considered an item in plain view under State v. Schroeder, 2000 WI App 128, 

¶¶12-16, 237 Wis. 2d 575, 613 N.W.2d 911. 

¶26 As alluded to above, the State’s argument proceeds from a faulty 

premise divorced from the context of electronic devices. By stipulation, the consent 

Jereczek provided was limited to his son’s user account—not to, in the State’s 

formulation, any “data associated with his son’s user profile.” We perceive the latter 

scope of consent to be much broader, and law enforcement certainly could have 

sought that degree of authorization. Having failed to do so, though, police were not 

entitled to search other areas of the hard drive merely because it was convenient for 

them to do so, or because they believed evidence they desired might be located 
No. 2019AP826-CR

12

there.10 Furthermore, police never attempted to clarify the scope of Jereczek’s 

consent with him, which is problematic in this context given that the State carried 

the burden of establishing by clear and convincing evidence that the warrantless 

search was reasonable and in compliance with the Fourth Amendment. See 

Matejka, 241 Wis. 2d 52, ¶17. 

¶27 The State’s arguments appear to be animated, to some extent, by the 

technical difficulties associated with adhering to the scope of consent Jereczek 

provided, given the limitations of law enforcement’s forensic software. The State 

emphasizes that Behling could not search the recycle bin for data tied to the son’s 

user profile without previewing all of the files from all users in that container. The 

State argues that forgoing a search of the recycle bin based on this technical 

limitation would have rendered the law enforcement search incomplete. 

¶28 Once again, the State misapprehends the scope of consent. Nothing 

in the consent Jereczek supplied suggested that law enforcement had authority to 

search anywhere on the hard drive based on whether they regarded their search as 

“complete”—i.e., until they had satisfied themselves that they had reviewed every 

piece of data connected to the son’s account. As in Jimeno, the terms of the search’s 

authorization in this case were simple—police could search the son’s user account, 

 

10

 Jereczek and the State argue about whether some of the circuit court’s findings of fact 

are consistent with Behling’s testimony. We do not regard any of the court’s factual findings as 

clearly erroneous, as the court essentially accepted Behling’s testimony about how he performed 

the search and why he began in the computer’s recycle bin. Behling’s testimony was undisputed, 

and we perceive the court to have accepted his testimony as credible. As we explain, however, the 

court’s observations about how complete the search would have been without an examination of 

the recycle bin, whether Behling would have eventually examined the recycle bin’s contents, and 

whether law enforcement acted in good faith are largely immaterial to the issues on appeal, which 

concern only the scope of the consent to search and whether the State met its burden of showing 

that law enforcement adhered to those restrictions. 
No. 2019AP826-CR

13

but no more. See Jimeno, 500 U.S. at 251. Unlike Jimeno, the terms of the 

authorization here were insufficient to get police everywhere they wanted to go.11 

¶29 Nor do technical difficulties in adhering to the scope of consent justify 

a broader search. Behling was aware it would be difficult, although not impossible, 

to tailor his search to the contents of only one user profile. Indeed, he testified he 

would usually seek a warrant initially for single-user searches of computers with 

multiple user accounts. But Behling did not inform the referring detective that he 

thought it was necessary to view data from other accounts during his review, nor 

did he seek to clarify the scope of consent with Jereczek himself. Law enforcement 

cannot rely on technical limitations of their forensic software to expand the scope 

of consent beyond those areas that are reasonably implied by the terms of the 

consent. 

¶30 Because the search of the recycle bin container on the shared 

computer’s hard drive was unlawful, the circuit court should have granted 

Jereczek’s suppression motion and excluded the initial item of child pornography 

associated with Jereczek’s account and all derivative evidence. The State, 

 

11

 The parties offer various attempts at analogies to other cases and contexts regarding 

consent to search or limited-scope warrant-based searches of physical locations in support of their 

respective arguments regarding Behling’s search of the computer hard drive. While we have 

divined some of our own such analogies, and while we tend to agree more with those advanced by 

Jereczek, we believe it is more productive to provide the analysis as we have written, without resort 

to analogies from other cases about searches of physical premises. 

We do note, however, that none of the cases to which the State cites regarding searches of 

computer data involved the type of limited consent at issue here. Instead, they involved consent to 

generally search an entire computer for particular types of information. See, e.g., State v. 

Schroeder, 2000 WI App 128, ¶¶12-16, 237 Wis. 2d 575, 613 N.W.2d 911 (applying the plain view

doctrine and concluding that police did not violate the Fourth Amendment when they found child 

pornography on a computer while lawfully searching it, pursuant to a search warrant, for evidence 

of online harassment).
No. 2019AP826-CR

14

alternatively, suggests that it could “possibly demonstrate inevitable discovery” of 

some or all of the relevant items of evidence. It requests that we remand for further 

factual finding on whether the inevitable discovery exception to the exclusionary 

rule applies. 

¶31 We are disinclined to remand with specific directions that the circuit 

court hold an evidentiary hearing on the inevitable discovery issue. The State does 

not appear to have argued inevitable discovery as a basis for admitting the evidence 

at any point before the court. Rather, that doctrine appears to have been applied on 

the court’s own initiative.12 We remand generally with directions that the circuit 

court grant Jereczek’s suppression motion. On remand, the court may also conduct 

further proceedings consistent with this opinion. If the State wishes to file a motion 

seeking to admit some or all of the evidence at issue based on the notion that it 

would have been inevitably discovered by lawful means, it may do so on remand.

By the Court.—Judgment reversed and cause remanded with 

directions.

 

12

 As the State notes, the inevitable discovery doctrine presumes that the evidence is 

tainted by an illegal act. See State v. Jackson, 2016 WI 56, ¶¶47-48, 369 Wis. 2d 673, 882 N.W.2d 

422. The State’s primary argument below appears to have been that the search here was consistent 

with the scope of consent Jereczek provided, and that there was no way for law enforcement to 

effectuate the search without examining the recycle bin container on the hard drive.