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"Crimes against children are among the most heinous of all crimes," Attorney General Van Hollen said. "By one good police officer coming forward, a criminal who used to be an officer will be put away for a long, long time."
MADISON-In an opinion issued today, the Wisconsin Court of Appeals upheld the right of off-duty police officers to report evidence of crimes that they inadvertently discover in their capacity as private citizens. The decision in State v. Berggren affirmed the conviction of a former South Milwaukee police officer for offenses including sexual assault of a child, sexual exploitation of a child, and possessing child pornography.
"Crimes against children are among the most heinous of all crimes," said Attorney General J.B. Van Hollen, whose office handled the appeal. "By one good police officer coming forward, a criminal who used to be an officer will be put away for a long, long time."
Berggren, who pled guilty, had taken pictures of his assault. Family members discovered the photos on Berggren's camera, and Berggren's ex-wife gave the camera to her brother, Michael Bolender. Bolender was a police officer who was off duty at the time. Officer Bolender then turned the photos over to the police department, and Berggren was arrested and gave incriminating statements to police.
On appeal, Berggren challenged his conviction, arguing that his trial counsel had provided ineffective assistance of counsel by not trying to suppress the photographic evidence from the camera. Berggren contended that the police officer's viewing of the evidence from the camera amounted to a warrantless seizure, violating his Fourth Amendment rights. But the Wisconsin Court of Appeals disagreed, holding that searches by private citizens are not subject to the Fourth Amendment. The court of appeals agreed with the State's position that Bolender was acting as a private citizen at the time he viewed the evidence and was not acting in his official government capacity as a police officer. The court of appeals also agreed with the State's position that Berggren had lost any expectation of privacy in the photos after the photos were viewed by family members and Bolender, such that the subsequent viewing of the photos at the police department did not violate his rights.
"Off-duty law enforcement officers have the same opportunity as ordinary citizens to report crimes they see," Van Hollen said. "The court of appeals' opinion properly recognizes that a prosecution should not be burdened and victims should not be punished merely because an off-duty officer acted as any private concerned citizen would in turning over evidence."
Berggren was sentenced to 36 years in prison, followed by 17 years of extended supervision.
Today's decision of the Wisconsin Court of Appeals may be found on the court's website:
The Milwaukee County District Attorney's Office litigated the case in the circuit court. Assistant Attorney General Sarah K. Larson represented the State in this case in the Court of Appeals.