This post examines a recent opinion from the Court of Appeals of Wisconsin: State v. Keller,
2017 WL 536058 (2016). The court begins by explaining how the case arose and
what issues were involved in the appeal:
Keller was on probation in July 2013
for an arson conviction. Given Keller's earlier conviction for possession of
child pornography, one of his rules of probation was that `[y]ou shall not
purchase, possess, nor use a computer, software, hardware, nor modem without
prior agent approval.’ The rules also precluded Keller from committing an
illegal act. On July 25, 2013, Keller's probation agent made a scheduled visit
to Keller's Farmington, Wisconsin, home and observed a locked room off the
kitchen. Keller told the agent the room was his wife's office where she kept
her computer equipment. Keller opened the locked door, and the agent observed
computer equipment. At an August 8, 2013 office visit, Keller advised the agent
that his Farmington home was going to be listed for sale and that his wife and
children were already living in Kewaskum. Keller could not live with his family
in Kewaskum due to his sex offender status.
On August 13, 2013, Keller missed a
scheduled appointment with his agent. On August 20, 2013, Keller's wife told
the agent that she had all of her computer equipment in Kewaskum. The agent
made an unscheduled visit to Keller's Farmington home the same day and observed
two modems with blinking lights, computers, a tower, a laptop, and a large
screen on a wall. Keller told the agent that he did not think the computers
worked but that he did use the laptop the previous day. Computer equipment was
also discovered in the basement. The agent seized the computers and Keller was
placed in custody for violating his rules of probation, namely having a
computer without approval.
The agent took the seized computer
equipment to her office and secured it. Neither the agent, nor anyone in her
office, had the requisite knowledge to search Keller's computer equipment. The
agent contacted DCI for assistance and arrangements were made for a DCI
forensic analyst to assist the agent in examining the contents of the computer
equipment.
The agent took the computer equipment
to the DCI analyst on September 5, 2013, and instructed the analyst that she
would be present throughout the search and that she would order the search
stopped if any illegal image was observed. When the analyst discovered an image
that appeared to be child pornography, the agent ordered the analyst to cease
the search and returned to her office with all of Keller's computer equipment.
The agent referred the matter to the
Washington County Sheriff's Department who obtained a search warrant for
Keller's computer equipment, which led to the discovery of images of child
pornography. Keller moved to suppress all evidence obtained, arguing the search
by the DCI analyst was illegal. The circuit court found the search to be a
police search and suppressed all evidence obtained from Keller's computer equipment.
The circuit court was not concerned with the seizure of Keller's computer
equipment as the court found the computer equipment was clearly contraband, but
the court was troubled by the use of the DCI analyst and the lack of direction
to the analyst as to the scope of the search. The court also commented that the
agent made no attempt to search the computers on her own. The state appeals.
State v. Keller,
supra.
The Court of Appeals prefaced its analysis of the legal
issues in this case with an explanation of the “standard of review” it would
apply to what happened here:
`Whether a search is a police or
a probation search is a question of constitutional fact which “requires a
conclusion based on an analysis of all the facts surrounding the search”’ State v. Devries, 2012 WI App 119,
¶3, 344 Wis. 2d 726, 824 N.W.2d 913 (quoting State v. Hajicek, 2001 WI 3, ¶23,
240 Wis. 2d 349, 620 N.W.2d 781). A circuit court's findings of historical fact
are examined under the clearly erroneous standard while the court's finding of
constitutionality is reviewed de novo. Hajicek, 240 Wis. 2d 349, ¶15. A
probation search is reasonable if a probation officer has `reasonable grounds’
to believe that a probationer has contraband. Id., ¶3. A
search done by a police officer at the request and behalf of a probation agent
is not per se a police search. Devries, 344 Wis. 2d 726, ¶7.
State v. Keller,
supra.
The court then began its analysis, explaining that the
issue in this case runs parallel to
those in State v. Purtell,
2014 WI 101, 358 Wis. 2d 212, 851 N.W.2d 417, and Devries. In Purtell, the issue was whether the
warrantless search of the contents of a computer lawfully
seized by a probation agent violated the Fourth Amendment. Purtell, 358 Wis. 2d 212, ¶33.
In Devries, the
issue was whether the involvement of police in a probationary search violates
the Fourth Amendment. Devries,
344 Wis. 2d 726, ¶¶4-5. The facts before us involve both concepts: a law
enforcement analyst assisting a probation agent in the warrantless search of
the contents of a computer lawfully seized by a probation
agent.
State v. Keller, supra
(emphasis in the original).
The Court of Appeals went on to explain that
[t]here is no dispute that Keller's
computers were contraband and were lawfully seized without a warrant. The court
stated that while the agent had valid suspicions that child pornography was on
Keller's computer, the agent was on a `fishing expedition’:
`I am not aware of any case anywhere in
the entire United States where this fact scenario has occurred where an agent
has basically made no attempt to search the computer herself, and has said,
let's call up the criminal investigative unit and have their people do a
forensic examination of a computer specifically looking for child porn, when
that specific type of analysis is not directly relevant to the issue of whether
the computer is being used or not. That's the rule violation: did he use it or
didn't he. Of course he admitted he used it.’
We disagree with the circuit court's
premise that the only relevant issue was whether Keller `used’ a computer.
Given the nature of probation, a probation agent has a duty to determine
whether a probationer is complying with the terms of his probation. See State v. Griffin, 131 Wis. 2d 41,
55, 388 N.W.2d 535 (1986). Probation, by its very nature, `places limitations
on the liberty and privacy rights of probationers,’ and these limitations
provide an exception to the warrant requirement for searches of a probationer's
home and property by a probation agent. Id. at 45-46. What is an unreasonable search for a
probationer differs from what is unreasonable for a law-abiding citizen. Purtell, 358 Wis. 2d 212, ¶22. If
a probation agent has `reasonable grounds’ to believe that a probationer has
contraband, the agent may conduct a warrantless search. Id., ¶26. Contraband is any item
whose possession is forbidden by law. Id., ¶51.
In Purtell, Purtell pled guilty to two felony counts of
mistreating animals in 2006 and was placed on probation. Id., ¶¶4-5. Given that police had
discovered sexually inappropriate images on Purtell's computer during their
investigation, Purtell had a probation rule that he `not purchase, possess, nor
use a computer, software, hardware, nor a modem without prior agent approval.’ Id., ¶¶4, 6. Purtell's
probation agent was informed in April 2007 that Purtell had possession of
computers. Id.,
¶¶11-12. The agent performed a warrantless search of Purtell's home, resulting
in the seizure of computer equipment. Id.
State v. Keller,
supra.
The opinion goes on to explain that the
agent brought Purtell's computer back
to her office and searched it without a warrant. Id., ¶14. The agent
observed images of underage females engaged in sexual activity. Id. The agent notified
law enforcement who obtained search warrants that resulted in eight criminal
charges of possession of child pornography. Id. Purtell moved to suppress the evidence seized from
his computers, arguing that while there were `reasonable grounds’ to seize his
computer as it was “contraband,” the agent's warrantless search of the contents of
his computer constituted an independent governmental search that violated his
Fourth Amendment privacy interests. Id., ¶¶15, 27.
Our supreme court concluded that the
search of the contents of Purtell's computer was permissible as the agent had
reasonable grounds to believe the computers contained contraband. Id., ¶20. The court
concluded that `it is difficult to imagine a scenario where a probation agent
would lack reasonable grounds to search an item the probationer is explicitly
prohibited from possessing.’ Id.,
¶28. A critical fact was that the computer itself was contraband. `[W]hen a
condition of probation prohibits the possession of a certain item, and the
subject of the search knowingly breaks that condition, in most situations a
probation agent would presumably have reasonable grounds to search the contents
of the item.’ Id.,
¶30. The court found that Purtell's agent was justified in ascertaining the
`extent’ of Purtell's probation violation by ascertaining whether Purtell had
not only possessed the computer, but also used the computer, and if so, the
degree of his use. Id.,
¶32
State v. Keller,
supra.
The Court of Appeals went on to explain that
Purtell tells us that as long as there are `reasonable
grounds’ to believe a probationer has contraband, a probation agent will almost
always have the right to search the contraband itself without a warrant. The
special need for ensuring that probationers are rehabilitated and that the
public is protected creates an exception to the warrant or probable cause
requirement for reasonable searches. Hajicek, 240 Wis. 2d 349, ¶36. While ordinary citizens have a
legitimate expectation of privacy in the contents of their electronic devices,
that expectation is `undercut’ when the electronic device is contraband. Purtell, 358 Wis. 2d 212,
¶28; see also United
States v. Skinner, 690
F.3d 772, 785 (U.S. Court of Appeals for the 6th Circuit 2012) (noting
that `courts have declined to recognize a “legitimate” expectation of privacy
in contraband and other items the possession of which are themselves illegal,
such as drugs and stolen property’).
When a condition of probation prohibits
the possession of an item, and the probationer knowingly breaks that condition,
`in most situations’ a probation agent would `presumably’ have “reasonable
grounds” to search the contents of the item. Purtell, 358 Wis. 2d 212, ¶30. Moreover, given Keller's
possession and admitted use of a computer at the house in violation of the
probationary rules, his prior conviction for possession of child pornography
provided reasonable grounds to search the contents for further illegal use of
the computer in violation of the rules.
State v. Keller,
supra.
The court goes on to explain that in
Devries, we addressed whether a probation agent who requested
police assistance in performing a search transformed the probationary search
into an illegal police search. Devries,
344 Wis. 2d 726, ¶4. The facts of Devries are straightforward. Devries met with her probation
agent who detected an odor of intoxicants emanating from Devries. Id., ¶2. The agent requested a law
enforcement officer to administer a preliminary breath test (PBT) to Devries. Id. A police officer
performed a PBT, which revealed a blood alcohol concentration (BAC) of
.128. Id. The
agent placed Devries in custody and told the police officer that Devries had
driven to her office. Id. The
officer performed further investigation which resulted in Devries' arrest for
sixth offense operating a motor vehicle while intoxicated. Id. Devries brought a motion
to suppress on the grounds that a police search occurred and therefore the PBT
and all evidence flowing from it should be suppressed. Id., ¶1. The circuit court denied
the motion. Id.
State v. Keller, supra.
The court then explained that
[w]e affirmed as Devries' probation
agent initiated the search and the police officer's only purpose for his
initial involvement was to assist the agent in conducting the probation
investigation. Id.,
¶5. We found, based upon the historical facts in the record, that the PBT was
administered for no independent police purpose but instead was a limited search
executed at the request and on behalf of the probation agent for probation
purposes. Id., ¶7.
State v. Keller, supra.
The Court of Appeals then articulated its holding in this
case, i.e., its decision:
Applying Purtell and Devries to our facts leads us
to conclude that the search of Keller's computer was a probationary search. As
noted in Purtell, an
agent has the authority to examine not only whether a probationer has
contraband but also has the right to determine the “extent” of the
violation. Purtell,
358 Wis. 2d 212, ¶32. Keller's probation agent lawfully seized contraband from
Keller but did not have the ability to examine the contents of the contraband.
The agent requested the assistance of an analyst at DCI, independent from any
law enforcement investigation, so as to examine the contents of Keller's
computer. Just as the agent in Devries did
not have the ability to administer the test to determine Devries' BAC, the
agent here did not have the ability to forensically examine the extent of
Keller's use of the computer. Based upon the rationale set forth in Purtell and Devries, we respectfully disagree
with the circuit court's conclusion that the search was a police search.
Conclusion
Given the historical facts, we conclude
that a warrant was not required for the probation agent to search the contents
of Keller's computer utilizing the assistance of an analyst from DCI. The order
suppressing the evidence is reversed.
State v. Keller,
supra.
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