In the

United States Court of Appeals

For the Seventh Circuit

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No. 07-3357

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PAUL R. GRIESBACH,

Defendant-Appellant.

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Appeal from the United States District Court

for the Western District of Wisconsin.

No. 07-CR-044-C—Barbara B. Crabb, Chief Judge.

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ARGUED AUGUST 5, 2008—DECIDED SEPTEMBER 2, 2008

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Before POSNER, COFFEY, and MANION, Circuit Judges.

POSNER, Circuit Judge. The defendant was convicted of

knowingly possessing child pornography, in violation of

18 U.S.C. § 2252(a)(4)(B), and was sentenced to 10 years

in prison. The appeal challenges the denial of his motion

to suppress pornographic images found on his computer. The ground of the motion was absence of probable

cause to support the warrant to search the computer’s
2 No. 07-3357

files in which the images on which his conviction is

based were found.

The warrant, issued by a Wisconsin state judge, was

based on the affidavit of a state police officer who was

investigating the defendant’s possible violation of a

Wisconsin statute that makes it a crime to possess images

of a “child engaged in sexually explicit conduct,” defined

to include “lewd exhibition of intimate parts.” Wis. Stat.

§§ 948.12(1), 948.01(7). The Supreme Court of Wisconsin

has explained that to satisfy this definition “the photograph must visibly display the child’s genitals or pubic

area. Mere nudity is not enough . . . . [T]he child [must be]

posed as a sex object . . . . The photograph is lewd in its

‘unnatural’ or ‘unusual’ focus on the juvenile’s genitalia,

regardless of the child’s intention to engage in sexual

activity.” State v. Petrone, 468 N.W.2d 676, 688 (Wis. 1991);

see also United States v. Lowe, 516 F.3d 580, 586 (7th Cir.

2008).

The affidavit described three images that the police

investigator had found on the Internet and traced to the

defendant. The first “depicts a prepubescent female

posing by a body of water. She has her top pulled up to

expose her breasts.” The second “depicts a female who

appears to be under the age of 18 posing naked. She is

standing to expose her full body.” The third “depicts a

naked female exposing her vagina. The female is lying

on her back and her vagina is the primary focus of the

image. The female appears to be under the age of 18. The

image is from identified child pornography series ‘Chelsea’

where law enforcement has identified the child victim.”
No. 07-3357 3

The government distinguishes between “child erotica”

and “child pornography,” places the first two images

described in the affidavit in the first box, and so defends

the finding of probable cause solely on the basis of the

third image. Although there is non-erotic photography

of nude children, one might have doubted that “child

erotica” was a legitimate photographic genre. But perhaps

it is; for there is a vein of high-culture child-erotic art,

illustrated in literature by Vladimir Nabokov’s famous

novel Lolita and in the visual arts by the erotic paintings

of prepubescent girls by the distinguished modern artist

Balthus (Balthasar K»ossowski de Rola), such as The

Guitar Lesson (1934). In any event, the Wisconsin legislature (as well as the U.S. Congress, as we are about to

see) has decided to draw the line between child erotica

and child pornography, and the government concedes

that if the affidavit failed to establish probable cause

to believe that the third image was pornographic, the

warrant was unconstitutional.

We note that it would have made no difference had the

warrant been sought in federal court to obtain evidence

of violation of the federal child pornography statute

under which the defendant was convicted. The federal

statute is identical to the Wisconsin statute so far as

the issues in this case are concerned. It criminalizes

possession of images depicting a minor “engaged in

sexually explicit conduct,” defined to include “lascivious

exhibition of the genitals or pubic area.” 18 U.S.C.

§§ 2252(a)(4), 2256(2)(B)(iii). And under the federal law as

under the state law, more than nudity is required to

make an image lascivious; the focus of the image must
4 No. 07-3357

be on the genitals or the image must be otherwise sexually

suggestive. United States v. Soderstrand, 412 F.3d 1146,

1151 (10th Cir. 2005); United States v. Kemmerling, 285 F.3d

644, 645-46 (8th Cir. 2002); United States v. Grimes, 244 F.3d

375, 380 (5th Cir. 2001); United States v. Knox, 32 F.3d 733,

743-44 (3d Cir. 1994).

The failure of the state investigator to submit the

image itself with her affidavit to the state judge is the

strangest thing about this case—unless it is the statement

by the federal government’s lawyer that it is the policy

of his office not to submit pornographic images to a

judge when seeking a search warrant, for fear of “disseminating pornography.” That position is hard to understand,

since in any prosecution for child pornography the essential evidence is the pornography rather than a

verbal description of it, and it becomes part of the

official record of the case. It is true that the Adam Walsh

Child Protection and Safety Act, 18 U.S.C. § 3509(m)(1),

provides that “in any [federal] criminal proceeding, any

property or material that constitutes child pornography

(as defined by section 2256 of this title) shall remain in

the care, custody, and control of either the Government or

the court.” See United States v. Shrake, 515 F.3d 743, 744-47

(7th Cir. 2008). But neither that nor any other statute

of which we are aware forbids submitting child pornography to a judge in support of a request for a search

warrant, since, like other evidence in a case, it would

remain in the court’s control.

A picture may be worth a thousand words, but the

affidavit’s 20-word description of the third image (“a
No. 07-3357 5

naked female exposing her vagina. The female is lying

on her back and her vagina is the primary focus”) is not

worth even one picture. The judge to whom the

affidavit was submitted should have asked to see the

image. Still, we think the verbal description was sufficient

to justify an inference that a search of the defendant’s

computer files would turn up pornographic images, as

it did. When the “primary focus” in a photograph of a

naked girl (apparently a teenager, since only the girl in

the first photograph is described as prepubescent) is her

vagina, and the photo is part of a known “child pornography series,” there is probable cause to believe that it is

a pornographic image—that the subject of the photo is

being presented to the viewer as a sex object—and that a

search of the computer from which the image had been

uploaded to the Internet (where it was noticed by Yahoo

and eventually reported to the Wisconsin authorities,

touching off the investigation that led to the search)

will yield additional such images. The fact that the

third image was part of a known series of pornographic

images is especially telling. Not all the photos in such a

series are bound to be pornographic, but most will be, and

if the suspect is discovered to possess one image in

the series the inference that he is a consumer of pornographic images and possesses such images found in this

or some other pornographic series is strong.

AFFIRMED.

9-2-08