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A Sauk County judge will allow evidence obtained during a warrantless search in a child pornography case.

In a decision filed last week, Sauk County Circuit Court Judge Michael Screnock denied a defendant’s motion to suppress evidence, and granted prosecutors’ motion to allow statements the defendant made to police before he was placed under arrest.

The case involves a 2013 raid on the Log Lodge Motel in West Baraboo. The search conducted by agents with the state’s Division of Criminal Investigation ultimately resulted in the arrest of 53-year-old John L. Lomax, who lived in an apartment above the motel’s main office.

Lomax’s attorney has argued that a warrantless search was unlawful, and that officers essentially intimidated their way into his upstairs apartment. Prosecutors say Lomax voluntarily let agents inside, and agreed to speak with them without an attorney. A hearing on the matter was held in August.

Based on information obtained by DCI’s crimes against children task force investigation, state investigators raided the motel’s main office with a warrant in May 2013. No child pornography was found on computers searched at that address. But investigators soon learned that the tenant of an upstairs apartment with a separate address had access to the main office’s Internet connection.

Agents later made contact with Lomax and got his permission to search his apartment and computer equipment. Although they did not have a warrant, agents reported that Lomax voluntarily allowed them inside and provided access to his electronic devices.

During the August hearing, Lomax testified that agents intimidated him. They spoke sternly and constantly put their hands on their weapons, he said. “It seemed like whenever they wanted something, they put their hands on their guns,” Lomax testified.

But in his decision, Screnock stated that “agents did not threaten Mr. Lomax or make any promises to him to induce his compliance.” The decision says none of the agents with the state’s Division of Criminal Investigation “displayed his or her gun to Mr. Lomax in a threatening manner prior to his arrest.”

Agents never left Lomax alone during the 3 1/2 hours after they first made contact with him. However, Screnock noted that agents informed Lomax that he was free to leave at any time, and did not restrain him or block his exit.

Lomax allowed the agents to take and search various electronic devices, and a forensic computer analyst determined that several devices contained files that he believed to be child pornography. Lomax allegedly had also deleted files as agents searched the downstairs office.

“Whenever Mr. Lomax directed the agents to exit his apartment, which he did often, they complied with that request,” Screnock wrote.

In Wisconsin, consent to search is only voluntary if police do not use deception or trickery, do not threaten the suspect, and if the conditions under which the request is made are non-threatening and cooperative. Courts also must consider how the defendant responded, his characteristics, such as age and intelligence, and whether police informed him that he could refuse their request.

“To be sure, the search team was large,” Screnock wrote. “(I)t was comprised of approximately one dozen law enforcement personnel. Such a large team of law enforcement agents would undoubtedly give a reasonable person pause, and be interpreted as a show of force.”

But Screnock opined that the negative impact of the search team size was mitigated “by the non-threatening and cooperative approach” the agents used during their interactions with Lomax.

Although Lomax suffers from post-traumatic stress disorder and a traumatic brain injury he sustained during military service, he has had prior dealings with police and likely would not be easily tricked by police, Screnock wrote.

Agents also did not explicitly inform Lomax that he could refuse their request to search items. But Screnock wrote that in the totality of circumstances, he believed Lomax’s cooperation was voluntary. He also found that statements Lomax made prior to his arrest are admissible because they too were voluntary, and the pressures of agents did not exceed Lomax’s ability to resist.

Lomax testified that agents used deception by stating that they were executing a search warrant on his upper level apartment. But Screnock found the testimony of DCI agents with regard to that allegation was more credible. The agents said they were referring to the warrant they had for the downstairs office.

Lomax faces 40 counts of felony child pornography possession, a charge that carries a maximum penalty of 25 years in prison and $100,000 in fines.

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