State v. Jeremiah J. Purtell

2014 WI 101SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP1307-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Jeremiah J. Purtell,
Defendant-Appellant.
REVIEW OF A DECISION OF THE COURT OF APPEALS
347 Wis. 2d 550, 830 N.W.2d 723(Ct. App. 2013 – Unpublished)
OPINION FILED: August 1, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 5, 2014
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Washington
JUDGE: James K. Muehlbauer
JUSTICES:
CONCURRED:
DISSENTED: BRADLEY, J., ABRAHAMSON, C.J., dissent. (Opinion
filed.)
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner, the cause was
argued by Sandra L. Tarver, assistant attorney general, with
whom on the briefs was J.B. Van Hollen, attorney general.
For the defendant-appellant, the cause was argued by Ellen
J. Krahn, assistant state public defender, with whom on the
brief was Eileen A. Hirsch, assistant state public defender.
2014 WI 101NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP1307-CR
(L.C. No. 2010CF86)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner,
FILED
v. AUG 1, 2014
Jeremiah J. Purtell, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 MICHAEL J. GABLEMAN, J. This is a review of an
unpublished decision of the court of appeals1 that reversed the
judgment of the Washington County Circuit Court2 convicting
Jeremiah Purtell of four counts of possession of child
pornography, contrary to Wis. Stat. § 948.12(1m) (2009-10).3 The
court of appeals held that the circuit court erred in denying
Purtell's motion to suppress evidence seized from a warrantless
1
State v. Purtell, No. 2012AP1307-CR, unpublished slip op.
(Wis. Ct. App. Mar. 7, 2013).
2
The Honorable James K. Muehlbauer presided.
3
All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
No. 2012AP1307-CR
search of his personal computer. In denying Purtell's motion to
suppress, the circuit court reasoned that the probation agent's
search of Purtell's computer complied with Wis. Admin. Code
§ DOC 328.21(3)(a) (Dec. 2006)4 because she had reasonable
grounds to believe the computer, which Purtell knowingly
possessed in violation of the terms of his probation, contained
contraband. The court of appeals concluded that the probation
agent improperly searched the computer under the mistaken
understanding that Purtell possessed images that violated the
terms of his probation. Because the images were not prohibited
under the terms of Purtell's probation or otherwise illegal to
possess, the court of appeals held the probation agent lacked
reasonable grounds to search the computer.
¶2 The question presented in this case is whether the
warrantless probation search of Purtell's computer violated his
constitutional rights under the Fourth Amendment to the United
States Constitution and Article I, Section 11 of the Wisconsin
Constitution.
¶3 We hold the circuit court properly denied Purtell's
motion to suppress. A probation agent's search of a
probationer's property satisfies the reasonableness requirement
of the Fourth Amendment if the probation agent has "reasonable
grounds" to believe the probationer's property contains
4
Effective July 1, 2013, Wis. Admin. Code § DOC 328 was
repealed and recreated. All subsequent citations to the
Wisconsin Administrative Code will be to the 2006 version, which
was the version in effect at the time of the search of Purtell's
computer on April 9, 2007.
2
No. 2012AP1307-CR
contraband. Griffin v. Wisconsin, 483 U.S. 868, 872 (1987).
The record demonstrates that the probation agent had reasonable
grounds to believe Purtell's computer, which Purtell knowingly
possessed in violation of the conditions of his probation,
contained contraband. Accordingly, we hold the probation search
of the contents of Purtell's computer did not violate the Fourth
Amendment to the United States Constitution or Article I,
Section 11 of the Wisconsin Constitution and reverse the
decision of the court of appeals.
I. BACKGROUND
¶4 The material facts underlying this appeal stem from
events occurring in November 2006, when Jeremiah J. Purtell pled
guilty to two felony counts of mistreating animals in a cruel
manner, contrary to Wis. Stat. § 951.02 (2005-06). This 2006
guilty plea arose from events that transpired after Purtell
began dating a veterinary technician who he met through Myspace,
a social-networking website. After a few weeks of dating,
Purtell moved into the technician's apartment which she shared
with her two dogs, a Shetland sheepdog and a Scottish terrier.
Over the next several weeks, Purtell tortured her two dogs,
piercing their eyes with a needle, repeatedly throwing them
against a wall, and holding them by their necks. He also struck
the Scottish terrier with a pipe and cut the Shetland sheepdog
several times with scissors. Purtell later admitted to
strangling the Scottish terrier to death. During the
investigation into the animal abuse charges, the Madison Police
Department examined Purtell's computer and found over thirty
3
No. 2012AP1307-CR
images depicting bestiality, including sex acts between women
and either dogs or horses.
¶5 On March 28, 2007, the Dane County Circuit Court5
withheld sentence, placed Purtell on 48 months of probation, and
imposed but stayed a sentence of 5 months and 29 days. For
purposes of his probation, Purtell's supervision was transferred
from Dane to Washington County and his case was assigned to
Probation Agent Kristine Anderson ("Agent Anderson"), who had a
specialty caseload of probationers with animal abuse
backgrounds.
¶6 Agent Anderson met with Purtell for his intake
appointment on April 6, 2007. At this time, Agent Anderson
reviewed with Purtell his judgment of conviction, the general
rules of community supervision,6 and the conditions she was
imposing that were supplemental to those imposed by the court.7
5
The Honorable James Martin presided.
6
"Probation, parole and extended supervision all involve
persons under community supervision." State v. Rowan, 2012 WI
60, ¶10, 341 Wis. 2d 281, 814 N.W.2d 854. The conditions of
community supervision are enumerated in a form entitled "Rules
of Community Supervision," which provides a standardized list of
rules issued by the Department of Corrections that individuals
under community supervision must follow in addition to any other
court-ordered conditions.
7
Probation agents have the authority to establish rules of
probation that are supplemental to court-imposed conditions.
Wis. Admin. Code, § DOC 328.04(2)(d). The Rules of Community
Supervision require the probationer to "follow any specific
rules that may be issued by an agent to achieve the goals and
objectives of your supervision. The rules may be modified at
any time, as appropriate."
4
No. 2012AP1307-CR
Purtell objected to several of these supplemental conditions,
including the stipulation he "not purchase, possess, nor use a
computer, software, hardware, nor a modem without prior agent
approval."8 Beyond the condition concerning computers, Agent
Anderson imposed several other rules based on her knowledge of
his criminal history. Because his underlying conviction related
to animal cruelty and originated from using Myspace to meet the
veterinarian technician whose dogs he had tortured, Purtell was
"prohibited from maintaining a Myspace.com account" and from
having any contact with animals. Additionally, Purtell's
presentence investigation report9 informed Agent Anderson that he
had a preoccupation with internet pornography and befriending
and dating underage girls. Accordingly, Purtell was prohibited
from having any unsupervised contact with children.
8
This condition supplemented a condition that had already
been imposed by the circuit court which provided, as a condition
of Purtell's probation, he was "not to own or possess a
computer," but that he could use a computer "at his place of
business or school only."
9
The Dane County Circuit Court ordered a presentence
investigation report in 2006 after Purtell pled guilty to the
two counts of animal cruelty discussed above. While this report
is not in the record, a second presentence investigation report
was ordered by the Washington County Circuit Court after Purtell
was convicted by jury trial in September 2011 of four counts of
possessing child pornography. This 2011 report, which is in the
record, references the 2006 report that Agent Anderson relied
upon in assessing Purtell's treatment needs. "The primary
purpose of the presentence investigation report is to provide
the sentencing court with accurate and relevant information upon
which to base its sentencing decision." Wis. Admin. Code
§ DOC 328.27(1). However, it also serves a helpful role for the
probation agent in "determining levels of supervision,
classification, program assignment . . . decision making[,] and
in the overall correctional treatment" of the probationer. Id.
5
No. 2012AP1307-CR
¶7 During the intake meeting, Purtell disclosed to Agent
Anderson that he had a Myspace account. Agent Anderson reviewed
Purtell's Myspace page. On the opening page there was an
animated video of a bull with audible sound declaring "the
internet is for porn." At the end of the video was a cartoon
illustration of a man standing behind a cow. In front of the
cow was an equal sign and an image of a half cow/half man
character. Agent Anderson also observed a blog post on his
Myspace page titled, "oops . . . I did it again," which
indicated Purtell was pursuing a relationship with his friend's
fifteen-year-old sister. Purtell was directed to close his
Myspace account by the end of the day.
¶8 Purtell continued to object to the supplemental
conditions and stated he would not remove his computers unless
the circuit court judge ordered him to do so. Agent Anderson
requested her supervisor, Correctional Field Supervisor Chad
Frey ("CFS Frey"), to join the meeting and reinforce the need
for the supplemental conditions. CFS Frey informed Purtell that
he had a right to correspond with the circuit court and his
attorney regarding his objections, but clarified that until the
circuit court ordered differently, Purtell was expected to
comply with all of the rules of his probation, including those
imposed by Agent Anderson.
¶9 Purtell eventually relented and agreed to surrender
the two computers in his possession——a laptop and desktop
computer——to his father the next day, April 7.
6
No. 2012AP1307-CR
¶10 Later in the afternoon on April 6, Bob Adams, the
program coordinator of the group home where Purtell resided,
contacted Agent Anderson and reported that Purtell had returned
from the intake meeting very disgruntled and had skipped his
appointment for mental health counseling. Purtell told Adams he
had no intention of complying with the conditions of his
probation and would keep his computers and not close down his
Myspace account. Purtell explained to Adams he would simply
hide his computers during scheduled home visits.10
¶11 On Monday, April 9, Adams called Agent Anderson and
informed her that Purtell had not removed his computers from his
room and had failed to report to the Washington County Jail to
submit a DNA sample. Further, Adams conveyed that Purtell had
violated the group home's curfew on the evening of Saturday,
April 7. Agent Anderson responded that she planned to go to
the group home with other probation agents and law enforcement
officers to place Purtell in custody for failing to comply with
the rules of his supervision.
¶12 Later in the morning on April 9, the probation
officers did, indeed, take Purtell into custody. Agent
Anderson, with two other probation agents, searched Purtell's
10
Depending on the level of supervision deemed most
appropriate, a probation agent is typically required to make
home visits to a probationer's home every 30 to 90 days. See
Wis. Admin. Code § DOC 328.04(4). The level of supervision is
generally based on the needs and risks of the probationer.
§ DOC 328.04(1).
7
No. 2012AP1307-CR
room and confiscated, among other things, a laptop, desktop
computer, other related computer equipment, and personal papers.
¶13 After going back to her office, Agent Anderson
inventoried the items confiscated in the search and found among
Purtell's personal papers a crayon-colored picture of a kitten
with accompanying notes that, like his Myspace activity,
suggested Purtell was attempting to engage in a relationship
with his friend's fifteen-year-old sister.
¶14 Agent Anderson then searched one of Purtell's
computers without a warrant.11 When she turned on the computer,
several titles to images popped up on the screen that involved
females engaged in sexual activity with animals and images of
what appeared to be underage females. Agent Anderson notified
her supervisor, CFS Frey, of the images she had found on
Purtell's computer. They contacted local law enforcement
officials, who subsequently obtained two search warrants which
allowed them to search Purtell's computer equipment, including
the hard drives of his laptop and desktop computers.12 The
resulting search revealed several still images and videos of
11
The circuit court noted in its findings of fact that
there was conflicting testimony regarding which computer was
searched by Agent Anderson. Agent Anderson testified she
searched the laptop, while a police detective testified it was
the desktop computer. Regardless of whose recollection was
correct, there is no dispute one of the computers was searched
and that several images of what appeared to be child pornography
were found.
12
Washington County Circuit Court, the Honorable Andrew T.
Gonring presided.
8
No. 2012AP1307-CR
children engaged in sex acts. On March 19, 2010, based on the
evidence acquired through the search of Purtell's computers,
Purtell was charged with eight counts of possession of child
pornography, contrary to Wis. Stat. § 948.12(1m).
¶15 Purtell moved to suppress the evidence seized from the
computers, arguing that the evidence was obtained in violation
of his Fourth Amendment rights.13 Purtell conceded that Agent
Anderson had "reasonable grounds"14 to search Purtell's room to
ascertain whether he had complied with the conditions of his
probation, and that Agent Anderson lawfully seized his computers
due to his non-compliance. However, Purtell argued that Agent
Anderson exceeded the permissible scope of that search by
searching the contents of his computer. According to Purtell,
Agent Anderson lacked both a warrant and reasonable grounds to
conduct the search, and the evidence subsequently seized should
therefore be suppressed.
¶16 The Washington County Circuit Court denied Purtell's
motion to suppress, concluding the search was justified because
there were reasonable grounds to believe the computer contained
13
Purtell's motion to suppress raised a second argument in
the alternative. Purtell argued that if the circuit court
determined Agent Anderson did have reasonable grounds to search
the computer's contents, the evidence should still be suppressed
because a police detective had improperly viewed and catalogued
the evidence before obtaining a search warrant. This issue has
not been raised on appeal.
14
Wisconsin probation regulations permit a probation agent
to search a probationer's property "if there are reasonable
grounds to believe that the quarters or property contain
contraband . . . ." Wis. Admin. Code § DOC 328.21(3)(a).
9
No. 2012AP1307-CR
contraband.15 On September 1, 2011, Purtell was found guilty by
jury trial of four counts of possession of child pornography.
¶17 Purtell appealed from the judgment of conviction and
order denying his motion to suppress. The court of appeals
reversed the judgment of conviction, concluding that Agent
Anderson did not have reasonable grounds to believe Purtell's
computers contained contraband. State v. Purtell, No.
2012AP1307-CR, unpublished slip op., ¶14 (Wis. Ct. App. Mar. 7,
2013). The court reasoned that the State's argument centered
"on the faulty assumption that Purtell's probation conditions
prohibited him from possessing images depicting cruelty to
animals or the mutilation of animals." Id. Because images
depicting animal cruelty or mutilation were not prohibited under
Purtell's rules of probation, and were not otherwise illegal,
there was no basis on which "to affirm the circuit court's
denial of Purtell's suppression motion." Id.
¶18 The State petitioned this court for review, which we
granted on November 20, 2013.
II. STANDARD OF REVIEW
¶19 This case requires us to address whether the
warrantless search of Purtell's computer by his probation
15
"Contraband" is defined in the Wisconsin Administrative
Code as "[a]ny item which the client may not possess under the
rules or conditions of the client's supervision," Wis. Admin.
Code § DOC 328.16(1)(a), or "any item whose possession is
forbidden by law." § DOC 328.16(1)(b).
10
No. 2012AP1307-CR
officer violated his Fourth Amendment rights.16 Whether evidence
should have been suppressed as the result of a Fourth Amendment
violation is a mixed question of law and fact. We take the
circuit court's findings of fact as true unless clearly
erroneous, and "our application of constitutional principles to
those facts is de novo." State v. Sobczak, 2013 WI 52, ¶9, 347
Wis. 2d 724, 833 N.W.2d 59.
III. DISCUSSION
¶20 The question before this court is whether Purtell's
Fourth Amendment rights were violated when his probation officer
searched the contents of his computer.17 The State argues that
16
Purtell challenges the search of his computer under both the
United States and Wisconsin Constitutions. This court has
ordinarily interpreted the protections of the Fourth Amendment
to the United States Constitution and Article I, Section 11 of
the Wisconsin Constitution as coextensive. State v. Artic, 2010
WI 83, ¶28, 327 Wis. 2d 392, 786 N.W.2d 430 (citing State v.
Johnson, 2007 WI 32, ¶20, 299 Wis. 2d 675, 729 N.W.2d 182). For
the sake of efficiency, this opinion will expressly address only
Purtell's Fourth Amendment challenge, but we note our analysis
applies to Article I, Section 11 of the Wisconsin Constitution
as well.
17
Purtell argues that this issue is not properly before
this court because the constitutionality of the search was not
raised by the State in its petition for review. See Motion to
Strike State's Brief Because It Addresses An Issue Not Raised In
Its Petition For Review (Motion to Strike), filed Dec. 20, 2013.
In our order granting the State's petition for review, we
stated, "the plaintiff-respondent-petitioner may not raise or
argue issues set forth in the petition for review unless
otherwise ordered by this court."
11
No. 2012AP1307-CR
the probation officer had reasonable grounds to believe the
contents of Purtell's computers contained contraband because the
computers themselves were contraband under the conditions of his
probation. We conclude that the record demonstrates Agent
Anderson had reasonable grounds to believe the computers
contained contraband and, accordingly, hold the circuit court
properly denied Purtell's motion to suppress.
a. Fourth Amendment Principles in the Context of
Probation
¶21 The Fourth Amendment protects "[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures . . . ."
U.S. Const. amend. IV. "A 'search' occurs when an expectation
of privacy that society is prepared to consider reasonable is
infringed." United States v. Jacobsen, 466 U.S. 109, 113
(1984). "The touchstone of the Fourth Amendment is
reasonableness," United States v. Knights, 534 U.S. 112, 118
Once this court has accepted review of a case, however, it
is within our "discretion to review any substantial and
compelling issue the case presents." Chevron Chem. Co. v.
Deloitte & Touche, 176 Wis. 2d 935, 945, 501 N.W.2d 15 (1993).
Whether the search of Purtell's computer satisfied the
reasonableness requirement of the Fourth Amendment is a
substantial issue that is dispositive to the question of whether
the circuit court's denial of Purtell's suppression motion was
proper. Further, the question of whether Agent Anderson had
reasonable grounds to believe that Purtell's computer contained
contraband has been thoroughly argued and briefed by the parties
at every stage of litigation in this case. Therefore, we find
it is appropriate to reach the underlying merits presented and
consider whether the search of Purtell's computer violated his
Fourth Amendment rights.
12
No. 2012AP1307-CR
(2001), and the reasonableness of any search is considered in
the context of the individual's legitimate expectations of
privacy. Maryland v. King, 567 U.S. ___, 133 S. Ct. 1958, 1978
(2013).
¶22 Here, a Fourth Amendment challenge is being made by a
probationer. The Fourth Amendment affords protection only
against searches that are unreasonable, and what is unreasonable
for a probationer differs from what is unreasonable for a law-
abiding citizen. Law-abiding citizens are entitled to the full
panoply of rights and protections provided under the Fourth
Amendment. Conversely, citizens convicted of a crime and
incarcerated have had their privacy interests largely
"extinguished by the judgments placing them in custody." Banks
v. United States, 490 F.3d 1178, 1186 (10th Cir. 2007) (quoting
Green v. Berge, 354 F.3d 675, 679 (7th Cir. 2004) (Easterbrook,
J., concurring)); see also United States v. Huart, 735 F.3d 972,
975 (7th Cir. 2013) ("It is well settled that prisoners have no
reasonable expectation of privacy in the belongings they keep
with them."). Somewhere between these two extremes on the
"privacy continuum," Banks, 490 F.3d at 1186, lies convicted
felons placed on conditional release, such as probation or
parole. Probationers are entitled to a certain degree of
constitutional protection under the Fourth Amendment, but their
rights against warrantless searches and seizures are
significantly curtailed. See Samson v. California, 547 U.S.
843, 849-850 (2006) (noting that probationers "do not enjoy the
absolute liberty to which every citizen is entitled," and that
13
No. 2012AP1307-CR
probationers have "significantly diminished privacy interests")
(internal quotation marks omitted).
¶23 This is so because, like incarceration, probation is
"a form of criminal sanction imposed by a court upon an offender
after verdict, finding, or plea of guilty." Griffin, 483 U.S.
at 874. Wisconsin probationers are in the legal custody18 of the
Wisconsin Department of Corrections, where they are subject to
the "control of the department under conditions set by the court
and rules and regulations established by the department . . . ."
Wis. Stat. § 973.10(1). Consequently, while law-abiding
citizens enjoy the fundamental rights and liberty interests
conferred by the constitution, probation has been characterized
as a "conditional liberty [that is] properly dependent on
observance of special [] restrictions." Morrissey v. Brewer,
408 U.S. 471, 480 (1972).
¶24 These special restrictions are vitally important to
the State's effective administration of its probation system.
18
Legal scholars have critiqued courts for deciding
probation search cases under a "constructive custody" rationale,
arguing that by stating in conclusory fashion a probationer is
in "custody" while outside of prison, they create a legal
fiction that ignores the numerous ways in which a probationer's
life is far more akin to that of an ordinary citizen's than a
prisoner's. See 4 Wayne R. LaFave, Search and Seizure, A
Treatise on the Fourth Amendment, § 10.10(a) (5th ed. 2012). To
clarify, we do not use the term "legal custody" to equate the
Fourth Amendment rights afforded to a probationer with those
afforded a prisoner. Instead, we merely recognize probationers
are in the "legal custody" of the State because, unlike ordinary
citizens, they are still subject to State supervision to ensure
successful reintegration into the community, lawful conduct, and
public safety.
14
No. 2012AP1307-CR
As the United States Supreme Court in Griffin explained, "A
State's operation of a probation system . . . presents 'special
needs' beyond normal law enforcement . . . ." 483 U.S. at 873-
74. The restrictions inherent in the probation system are
necessary to "assure that the probation serves as a period of
genuine rehabilitation and that the community is not harmed by
the probationer's being at large[]"; these dual goals of
rehabilitation and public safety "require and justify the
exercise of supervision to assure that the restrictions are in
fact observed." Id. at 875.
¶25 The background and criminal history of each
probationer is different, and the individual's level of
supervision and corresponding privacy interests will vary. It
is the probation agent's responsibility to obtain necessary
information about the probationer to provide appropriate
supervision, evaluate their needs and security risks, determine
their goals and objectives, and establish written supplemental
rules of supervision. This flexibility assists in ensuring the
"degree of impingement upon [a probationer's] privacy" is no
greater than necessary to support rehabilitation and safeguard
the community from potential harm. Id. This case-by-case
approach means that probation "can itself be more or less
confining depending upon the number and severity of restrictions
imposed," and in certain circumstances, "the probation [agent]
must be able to act based upon a lesser degree of certainty than
the Fourth Amendment would otherwise require in order to
15
No. 2012AP1307-CR
intervene before a probationer does damage to himself or
society." Id. at 874, 879.
b. The Probation Agent Had Reasonable Grounds to Search
Purtell's Computer.
¶26 Wisconsin probation regulations permit a probation
agent to search a probationer's property "if there are
reasonable grounds to believe that the quarters or property
contain contraband . . . ." Wis. Admin. Code § DOC
328.21(3)(a). In Griffin v. Wisconsin, the United States
Supreme Court upheld this regulation, concluding that it
"satisfies the Fourth Amendment's reasonableness requirement
under well-established principles." 483 U.S. at 873. Griffin
held that the special needs of Wisconsin's probation system in
effectively supervising probationers and protecting the
community justified replacing the standard of probable cause
with a lesser "reasonable grounds" standard. The Court reasoned
that probation officers must be permitted "to respond quickly to
evidence of misconduct" and "the deterrent effect that the
possibility of expeditious searches" creates would be unduly
compromised by a probable cause requirement. Id. at 876; see
also Knights, 534 U.S. at 121 ("Although the Fourth Amendment
ordinarily requires the degree of probability embodied in the
term 'probable cause,' a lesser degree satisfies the
Constitution when the balance of governmental and private
interests makes such a standard reasonable.").
¶27 Purtell does not challenge the search of his residence
(a group home) or the seizure of his computers. He concedes
16
No. 2012AP1307-CR
Agent Anderson had reasonable grounds to search his room and
that his computers were "contraband" under the terms of his
probation. Instead, Purtell argues that, while his computers
were lawfully seized as contraband, Agent Anderson's search of
the computer's contents constituted an independent, governmental
search that violated his Fourth Amendment privacy interests.
The court of appeals agreed, concluding that the State's
argument rested on the faulty assumption that Purtell was
prohibited from possessing images depicting cruelty to animals.
Agent Anderson testified during the suppression hearing that she
was concerned Purtell may have images depicting animal cruelty
or mutilation on his computers. Because possessing images of
animal cruelty was not prohibited under Purtell's conditions of
probation, and were not otherwise illegal to possess,19 the court
of appeals concluded that Agent Anderson did not have
"reasonable grounds" to believe Purtell's computer contained
contraband. Purtell, No. 2012AP1307-CR, ¶14.
¶28 We disagree. As a threshold matter, 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. Indeed, the fact that the
computers in question were themselves contraband is critical.
Ordinary citizens, even citizens who are subject to diminished
19
In United States v. Stevens, 559 U.S. 460, 482 (2010),
the United States Supreme Court held that a federal statute
prohibiting the creation, sale, or possession of depictions of
animal cruelty violated the First Amendment.
17
No. 2012AP1307-CR
privacy interests because they have been detained, have a
legitimate expectation of privacy in the contents of their
electronic devices. See Riley v. California, 134 S. Ct. 2473(2014); State v. Carroll, 2010 WI 8, ¶27, 322 Wis. 2d 299, 778
N.W.2d 1. This privacy interest, however, is undercut when the
electronic device in question is contraband.20 See United States
v. Skinner, 690 F.3d 772, 785 (6th Cir. 2012), cert. denied, 133
S. Ct. 2851 (2013) (observing 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.").
¶29 Thus, Purtell's expectation of privacy in his
computers was diminished, not only because he was on probation,
but because his possession and use of the computers was
specifically prohibited by a condition of that probation.
20
The dissent cites to several cases which stand for the
proposition that the seizure of an electronic device is distinct
from a subsequent search of its contents. Dissent, ¶¶41-48; see
also Riley v. California, 134 S. Ct. 2473 (2014) (addressing the
warrantless search of the contents of the defendant's cell phone
following his arrest); State v. Sobczak, 2013 WI 52, 347
Wis. 2d 724, 833 N.W.2d 59 (discussing whether a third party's
consent for law enforcement to search the defendant's home could
validate the officer's subsequent search of the defendant's
laptop); State v. Carroll, 2010 WI 8, 322 Wis. 2d 299, 778
N.W.2d 1 (reviewing the validity of a warrantless search of the
contents of an arrestee's cell phone). Our case involves a
probationer——who is already subject to diminished privacy
interests——and the search of contraband that he knowingly
possessed in violation of the terms of his probation. The cases
cited by the dissent, while interesting, are of minimal
assistance to our analysis.
18
No. 2012AP1307-CR
¶30 Conditions of probation are imposed for a reason.21
So, when 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. Regardless, whether or not a probation agent would ever
conceivably lack reasonable grounds to believe that contraband
in a probationer's possession contains more contraband, it is
certainly not a close question here. The record shows that
Agent Anderson had reasonable grounds to conduct a probation
search of Purtell's computer based on the factors provided in
the Wisconsin Administrative Code.
¶31 The Wisconsin Administrative Code sets forth a list of
factors to be considered in determining whether there are
reasonable grounds to believe a probationer's property contains
contraband:
21
To be constitutional, conditions must be designed to
assist "the convicted individual in conforming his or her
conduct to the law," and not be overly broad. Rowan, 341 Wis.
2d at ¶10. As we explained in Rowan,
[a] condition is reasonably related to a person's
rehabilitation if it assists the convicted individual
in conforming his or her conduct to the law. It is
also appropriate for circuit courts to consider an end
result of encouraging lawful conduct, and thus
increased protection of the public, when determining
what individualized probation . . . conditions are
appropriate for a particular person.
Id. (citations and footnotes omitted). As previously noted,
Purtell does not challenge the propriety of the condition that
he not own, possess, or use a personal computer.
19
No. 2012AP1307-CR
(a) The observations of staff members.
(b) Information provided by informants.
(c) The reliability of the information provided by an informant. In evaluating
the reliability of the information, the field staff shall give attention to the
detail, consistency and corroboration of the information provided by the
informant.
(d) The reliability of the informant. In evaluating the informant's reliability,
attention shall be given to whether the informant has supplied reliable
information in the past and whether the informant has reason to supply
inaccurate information.
(e) The activity of the client that relates to whether the client might possess
contraband or might have used or be under the influence of an intoxicating
substance.
(f) Information provided by the client that is relevant to whether the client has
used, possesses or is under the influence of an intoxicating substance or
possesses any other contraband.
(g) The experience of a staff member with that client or in a similar
circumstance.
(h) Prior seizures of contraband from the client.
(i) The need to verify compliance with the rules of supervision and state and
federal law.
Wis. Admin. Code § DOC 328.21(7). As a condition of his
probation, Purtell was "not [to] purchase, possess, nor use a
computer, software, hardware, nor a modem without prior agent
20
No. 2012AP1307-CR
approval."22 (Emphasis added.) Here, Agent Anderson was
justified in ascertaining the extent of Purtell's noncompliance
with the rules of his supervision. Wis. Admin. Code § DOC
328.21(7)(i). It was already established that Purtell had
knowingly violated the condition against possessing a computer,
and it was unquestionably Agent Anderson's prerogative to
ascertain whether he had further violated the conditions imposed
on his probation by using those computers. It is irrelevant
whether the images of animal cruelty were prohibited by
Purtell's probationary terms or otherwise illegal to possess;
the use of the computer was itself prohibited, and Agent
Anderson had reasonable grounds to believe Purtell had
impermissibly used them.
¶32 Further, it is apparent from Agent Anderson's
testimony at the suppression hearing she considered several
factors set forth in the Wisconsin Administrative Code——which
probation agents are instructed to consider in determining
whether a probationer's property contains contraband——in her
decision to search Purtell's computer: (1) Purtell's Myspace
page and personal papers indicated he was attempting to start a
22
The court of appeals misstated Purtell's condition of
probation as prohibiting him from "own[ing] or possess[ing] a
computer and that he could only use a computer 'at his place of
business or school.'" Purtell, No. 2012AP1307CR, ¶2. This
condition, which was stated in Purtell's judgment of conviction,
was originally imposed by the Dane County Circuit Court. Agent
Anderson testified at the suppression hearing that, after
Purtell was transferred to Washington County, the circuit court
left it to her discretion whether the condition be modified or
removed.
21
No. 2012AP1307-CR
relationship with a fifteen-year-old girl, and Myspace is the
same avenue he used to contact a prior victim.23 Agent Anderson
knew of Purtell's background befriending underage girls and had
prohibited him from being in contact with children. She
expressed concern that he may have other Myspace accounts or be
using other networking sites, such as Facebook, where he would
have access to other potential victims;24 (2) Purtell's Myspace
page had cartoon images of human/animal hybrids, which Agent
Anderson——having an expertise in animal cruelty cases25——felt was
a disturbing signal of potential future violence against, not
just animals, but also people;26 (3) Purtell did not attend his
23
A factor that probation agents are instructed to consider
in determining whether to search a probationer's property is
"[t]he activity of the client that relates to whether the client
might possess contraband . . . ." Wis. Admin. Code § DOC
328.21(7)(e).
24
Two additional factors that probation agents are
instructed to consider prior to conducting a search are "[t]he
experience of a staff member with that client or in a similar
circumstance," Wis. Admin. Code § DOC 328.21(7)(g), and "[t]he
need to verify compliance with rules of supervision and state
and federal law," Wis. Admin. Code § DOC 328.21(7)(i).
25
Agent Anderson's expertise with animal cruelty cases
corresponds to Wis. Admin. Code § DOC 328.21(7)(g), which lists
"[t]he experience of a staff member with that client or in a
similar circumstance," as a factor in determining whether
reasonable grounds exist to search a probationer's belongings.
26
The author of the 2006 presentence investigation report
ordered by the Dane County Circuit Court expressed concern that
Purtell viewed the two dogs he abused as "human," in that he
believed the dogs could make a conscious decision to reject him.
22
No. 2012AP1307-CR
scheduled mental health assessment, did not submit his court-
ordered DNA sample, and failed to follow the residency rules of
his group home by missing curfew;27 and (4) Purtell displayed
extreme reluctance to surrender his computers28, and was even so
bold as to inform the coordinator of his group home that he
intended to hide them during home visits.29 Taken in the
aggregate, and given Purtell's blatant disregard for the
conditions of his probation, as well as Agent Anderson's
knowledge of Purtell's background and those of similar
probationers, we conclude there were reasonable grounds for
Agent Anderson was also aware that Purtell's history of
torturing animals stemmed back to childhood. She testified that
she had spoken directly with Purtell's mother regarding
Purtell's childhood, and was informed that Purtell, as a child,
had "disciplined" a family pet and injured the animal to such a
degree they never had animals in the home again.
27
Purtell's conduct can be properly considered by Agent
Anderson under Wis. Admin. Code § DOC 328.21(7)(e), describing
"[t]he activity of the client that relates to whether the client
might possess contraband" as a factor in determining whether
reasonable grounds exist to justify a search.
28
The prior seizure of Purtell's computers is a relevant
consideration for Agent Anderson under Wis. Admin. Code § DOC
328.21(7)(h), which provides that "[p]rior seizures of
contraband from the client" is pertinent in establishing
reasonable grounds for searching a probationer's property. This
is an especially germane fact here, given that the search of the
seized computer's contents is at issue.
29
Purtell's comments to the group home coordinator relate
to three factors probation agents are instructed to consider
prior to searching a probationer's property: "[t]he observations
of staff members," Wis. Admin. Code § DOC 328.21(7)(a), "[t]he
experience of a staff member with that client," § DOC
328.21(7)(g), and "the need to verify compliance with the rules
of supervision and state and federal law," § DOC 328.21(7)(i).
23
No. 2012AP1307-CR
believing Purtell's computers contained contraband,30 such as
correspondence with underage girls31 or additional Myspace
30
We read Agent Anderson's testimony in the suppression
hearing as providing an ample foundation for believing the
contents of Purtell's computers contained contraband. However,
to the extent Agent Anderson's subjective intent to search
Purtell's computer was motivated by concern he might possess
still images of animal cruelty or mutilation, which was the
basis for the court of appeals' decision, we conclude that
stated objective by Agent Anderson does not impact the
lawfulness of the search. The Supreme Court has repeatedly held
that a police officer's motive does not invalidate "objectively
justifiable behavior under the Fourth Amendment." Whren v.
United States, 517 U.S. 806, 813 (1996) ("[T]he fact that the
officer does not have the state of mind which is hypothecated by
the reasons which provide the legal justification for the
officer's action does not invalidate the action taken as long as
the circumstances, viewed objectively, justify that action.")
(internal quotation marks omitted). See also State v. Sykes,
2005 WI 48, ¶29, 279 Wis. 2d 742, 695 N.W.2d 277 (holding the
actual motivation of an officer does not determine the
constitutionality of a stop).
31
The dissent argues that "correspondence with underage
girls" is not contraband under the terms of Purtell's probation.
Dissent, ¶53. Perhaps the dissent overlooks the terms of
Purtell's probation, which clearly provide that Purtell is
prohibited from having any unsupervised contact with children.
24
No. 2012AP1307-CR
accounts.32 In addition, Agent Anderson was justified in
ascertaining the extent of Purtell's probation violation by
determining whether he had used the computer in addition to
possessing it, and if so, the degree of his use. Accordingly,
We take issue with the dissent's constrictive
interpretation of "item" under the statutory definition of
contraband, Wis. Admin. Code § DOC 328.21. We fail to see a
meaningful difference between a probation officer having
reasonable grounds to believe property contains a tangible
"item" establishing illegal conduct and reasonable grounds to
believe property contains intangible evidence of illegal
conduct. Under the dissent's unduly narrow interpretation of
the relevant statutes, a probation officer would not have
reasonable grounds to search a probationer's property even if he
or she was certain the property contained evidence of the
probationer's non-compliance with the terms of his or her
probation. Such an interpretation is contrary to the dual
purposes of the Fourth Amendment "special needs" exception, in
that it would run the risk of endangering the public and state
employees, as well as hinder the rehabilitation of probationers.
32
Under the terms of his probation, Purtell was "prohibited
from maintaining a Myspace.com account." The dissent objects
that "[t]his condition addresses an action rather than
possession of an item. A prohibited action does not fall within
the definition of contraband." Dissent, ¶54. If possession of
an account——whether it be a social media account, a bank
account, a web page, or a line of credit——is prohibited by an
individual's probationary terms, violation of that term surely
constitutes the possession of "contraband." The dissent's
characterization of social media accounts fails to embrace the
reality of our increasingly digitized modern era. Simply
because an "account" cannot be held in one's hand, does not mean
it does not exist.
The dissent also argues that Agent Anderson did not need to
search Purtell's computer because she "could check his Myspace
activity 'separately because she had his password and had done
that on her own without the computers.'" Id. This fails to
account for the possibility that Purtell had multiple Myspace
accounts that had not been disclosed to his probation officer
and would be viewable in his computer's web history.
25
No. 2012AP1307-CR
we conclude Agent Anderson's warrantless search of Purtell's
computer complied with Wis. Admin. Code § DOC 328.21(3)(a) and
did not violate Purtell's Fourth Amendment rights.
IV. CONCLUSION
¶33 We hold the circuit court properly denied Purtell's
motion to suppress. A probation agent's search of a
probationer's property satisfies the reasonableness requirement
of the Fourth Amendment if the probation agent has "reasonable
grounds" to believe the probationer's property contains
contraband. Griffin, 483 U.S. at 874. The record demonstrates
that the probation agent had reasonable grounds to believe
Purtell's computer, which Purtell knowingly possessed in
violation of the conditions of his probation, contained
contraband. Accordingly, we hold the probation search of the
contents of Purtell's computer did not violate the Fourth
Amendment to the United States Constitution or Article I,
Section 11 of the Wisconsin Constitution and reverse the
decision of the court of appeals.
By the Court.—The decision of the court of appeals is
reversed.
26
No. 2012AP1307-CR.awb
¶34 ANN WALSH BRADLEY, J. (dissenting). The State of
Wisconsin seeks review of an unpublished decision of the court
of appeals that reversed the defendant's conviction. In
reinstating the defendant's conviction, the majority rides two
analytical horses.
¶35 In one, the majority frames an analysis to suggest
that because the computer was lawfully seized as contraband, the
contents of the computer can be searched without a warrant.
Majority op., ¶¶28-29. This brief discussion, set forth in a
mere two paragraphs, is short on legal analysis but striking in
the length of its legal reach.
¶36 In its other analytical approach, the majority
concludes that the record demonstrates that the agent had
reasonable grounds to believe the computer contained contraband.
Majority op., ¶20. In order to reach this conclusion, the
majority relies on prohibited actions, rather than the
possession of prohibited items. It fails to recognize that
"actions" do not fall within the definition of "contraband."
¶37 Like the unanimous court of appeals, I determine that
the search of the contents of the computer was not supported by
reasonable grounds to believe that the computer contained
contraband. Additionally, I conclude that a lawful seizure of a
computer as contraband does not give license to search its
contents without a warrant. Accordingly, I respectfully
dissent.
I
1
No. 2012AP1307-CR.awb
¶38 At issue in this case is a probation agent's
warrantless search of a probationer's computer. Purtell argues
that although his computers were lawfully seized as contraband,
Agent Anderson's search of the contents of one of the computers
constituted an independent, governmental search that violated
his Fourth Amendment privacy interests. In its first
conclusion, the majority determines that because the computer
was lawfully seized as contraband, its contents could be
searched without a warrant.
¶39 The analysis in support of this conclusion is set
forth in a mere two paragraphs. At the outset, the majority
opines 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. It ends the analysis with a conjecture and abrupt
conclusion: if there "would ever conceivably" be such a
scenario, it is not this case. Id., ¶30.
¶40 It is unclear why the majority finds it so "difficult
to imagine such a scenario" and that it would be virtually
inconceivable. One need look only to one of the most legally
debated issues of the day: whether the search of the contents of
a legally seized computer is constitutionally permissible
without a warrant.
¶41 The United States Supreme Court recently weighed in on
this issue in the context of the search of the contents of a
cellphone. Riley v. California, 573 U.S. ___, 134 S. Ct. 2473(2014). In a decision that is being heralded as an important
2
No. 2012AP1307-CR.awb
statement on privacy rights in the digital age, the unanimous
court concluded that "officers must generally secure a warrant
before conducting" a search of data on cell phones. Id. at
2485.
¶42 Although Riley was decided in the context of a search
of a cell phone, the court observed that the "term 'cell phone'
is itself misleading shorthand; many of these devices are in
fact minicomputers that also happen to have the capacity to be
used as a telephone." Id. at 2489.1 Furthermore, "the possible
intrusion on privacy is not limited in the same way" as a search
of other physical objects, given their "immense storage
capacity" which has "several interrelated consequences for
privacy." Id. at 2489.
¶43 The fact that the primacy of these privacy rights has
been recently reaffirmed, even for those with reduced privacy
interests, makes the majority's decision all the more troubling.
As Justice Roberts explained, Fourth Amendment rights apply also
to those with diminished privacy rights. The existence of
"diminished privacy interests":
does not mean that the Fourth Amendment falls out of
the picture entirely. Not every search "is acceptable
1
Likewise, the Seventh Circuit has acknowledged that
cellphones are the equivalent of a computer. United States v.
Flores-Lopez, 670 F.3d 803, 805 (7th Cir. 2012) ("Judges are
becoming aware that a computer (and remember that a modern cell
phone is a computer) is not just another purse or address book.
. . . computers hold so much personal and sensitive information
touching on many private aspects of life. . . . [T]here is a far
greater potential for the 'intermingling' of documents and a
consequent invasion of privacy when police execute a search for
evidence on a computer.").
3
No. 2012AP1307-CR.awb
solely because a person is in custody." To the
contrary, when "privacy-related concerns are weighty
enough" a "search may require a warrant,
notwithstanding the diminished expectations of privacy
of the arrestee."
Id. at 2488 (citations omitted).
¶44 Regardless of whether the majority's analysis is
hampered by its self-proclaimed difficulty in imagination or
some other impediment, it is surprising that the majority gives
the issue such short shrift.
¶45 It bears noting that all parties agree that the search
of Purtell's residence (the group home) was permissible. The
agent had reason to believe, based on communication with the
group home, that Purtell possessed computers in violation of his
rules of probation. Computers were the contraband, and
computers were seized. The focus of this inquiry is not whether
there were reasonable grounds to search the residence or seize
the computers, but whether there were independent grounds to
search the contents of one of the computers without a warrant.
¶46 The majority glosses over this analytical distinction,
despite our precedent establishing that under the Fourth
Amendment, each warrantless search must be analyzed separately.
State v. Carroll, 2010 WI 8, ¶16, 322 Wis. 2d 299, 778 N.W.2d 1("[W]e assess the legality under the Fourth Amendment of each
warrantless search or seizure that produced the evidence.").2
2
This framework is applicable even though a different
Fourth Amendment standard applies to searches of probationers in
Wisconsin. See State v. Griffin, 131 Wis. 2d 41, 57, 388 N.W.
2d 535 (1986), aff'd, 483 U.S. 868 (1987) ("Though a probationer
has a diminished expectation of privacy, he still has privacy
rights that must be respected.").
4
No. 2012AP1307-CR.awb
¶47 For example, in State v. Sobczak, 2013 WI 52, ¶30, 347
Wis. 2d 724, 833 N.W.2d 59, the court determined that although a
third party's consent provided constitutional authority for a
warrantless entry into a home, a separate analysis was needed to
determine whether that third party consent allowed for a search
of a laptop in the home. The court explained that "[t]o
validate the search of an object within a home on consent, the
government must satisfy the same requirements as apply to
consent to enter." Id., ¶31.
¶48 This concept is also illustrated by Carroll. In
Carroll, a police officer handcuffed Carroll after a high-speed
chase, and then grabbed a cell phone that Carroll had dropped.
322 Wis. 2d 299, ¶¶5-6. While the officer had the phone, it
rang, and the officer answered. The caller made a request to
purchase cocaine. The officer also browsed through the contents
of the phone, including the phone's image gallery. On appeal,
this court addressed the question of whether the officer's
warrantless search of the phone's image gallery was
constitutional. Id., ¶2. The court determined that even though
the seizure of the phone and subsequent phone calls that the
officer answered were constitutionally permissible, browsing
through the phone's image gallery was improper. Id., ¶33.
These cases demonstrate that a separate Fourth Amendment
analysis is required to determine if a lawfully seized item can
be searched without a warrant.
¶49 Due to the personal nature of the data contained on a
computer and the weighty privacy concerns inherent in a search
5
No. 2012AP1307-CR.awb
of that data, it is particularly important that a court conduct
a separate analysis to determine if there are reasonable grounds
to justify the search. By ignoring precedent and suggesting
that once property is seized it can be searched, the majority
greatly reduces not only the privacy rights of probationers, but
the privacy rights of the millions of people who own cellphones,
computers, and similar electronic devices.
II
¶50 Although the majority ultimately conducts an analysis
of whether there were reasonable grounds to search the contents
of the computer, after suggesting one is not necessary, its
analysis is unconvincing. The majority concludes that the
probation agent in this case had "reasonable grounds for
believing Purtell's computers contained contraband, such as
correspondence with underage girls or additional Myspace
accounts." Majority op., ¶32. In reaching this conclusion, the
majority fails to take into account the definition of the word
"contraband."
¶51 Wisconsin probation regulations permit a probation
agent to search a probationer's property "if there are
reasonable grounds to believe that the quarters or property
contain contraband." Wis. Admin. Code § DOC 328.21 (Dec. 2006).
"Contraband" is defined as "[a]ny item which the client may not
possess under the rules or conditions of the client's
supervision; or . . . any item whose possession is forbidden by
law." Wis. Admin. Code § DOC 328.21.
6
No. 2012AP1307-CR.awb
¶52 The majority lists the relevant conditions of
Purtell's supervision as follows:
• He could not purchase, possess, nor use a
computer, software, hardware, nor a modem without
prior agent approval;
• he was prohibited from maintaining a Myspace.com
account;
• he was prohibited from having any contact with
animals; and
• he was prohibited from having any unsupervised
contact with children.
Majority op., ¶6. The only item that these conditions prohibit
Purtell from possessing is a computer.
¶53 The majority's suggestion that the computer could
contain "correspondence with underage girls" appears related to
Agent Anderson's testimony that Purtell's Myspace page and
personal papers indicated he was attempting to start a
relationship with a fifteen-year-old girl. Id., ¶¶6-7.
However, this is not contraband. Although evidence of contact
with teenage girls could be circumstantial evidence of a
probation violation, it is not "an item which the client may not
possess under the rules or conditions of probation" or may not
possess under the law.
¶54 The other items the majority suggests could be
contraband on Purtell's computer are "other Myspace accounts."
Id., ¶32. This is unpersuasive for two reasons. First, as the
circuit court noted, Agent Anderson could check his Myspace
activity "separately because she had his password and had done
that on her own without the computers." Second, it is far from
7
No. 2012AP1307-CR.awb
clear that a Myspace.com account is "an item which the client
may not possess under the rules or conditions of probation."
Wis. Admin. Code § DOC 328.21(3) (emphasis supplied). It
appears from the conditions of his probation that Purtell was
prohibited from "maintaining a Myspace.com account." This
condition addresses an action rather than possession of an item.
A prohibited action does not fall within the definition of
contraband.
¶55 Accordingly, the majority's assertions are
disconnected from Purtell's actual conditions of supervision,
and its reliance on actions that are outside the definition of
contraband cannot provide a legal basis for the warrantless
search. Contrary to the majority, I conclude that the
warrantless search of Purtell's computer after it had been
seized was unreasonable because Agent Anderson did not have
reasonable grounds to believe that it contained contraband.
III
¶56 In sum, I conclude that the warrantless search of
Purtell's computer violated his privacy rights under the Fourth
Amendment of the Constitution. The majority's analysis suggests
that any item seized can be searched and presents an erroneous
understanding of what constitutes contraband.
¶57 Because I disagree with the majority's conclusion that
there were reasonable grounds to believe that Purtell's computer
contained contraband and with its assertion that the lawful
seizure of a computer gives license to search its contents, I
respectfully dissent.
8
No. 2012AP1307-CR.awb
¶58 I am authorized to state that Chief Justice SHIRLEY S.
ABRAHAMSON joins this dissent.
9
No. 2012AP1307-CR.awb
1