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Probation search declared unreasonable; forfeiting issue could be ineffective assistance of counsel

State v. Jeremiah J. Purtell, 2012AP1307-CR, District 2, 3/7/13  (not recommended for publication); petition for review granted 11/20/13Case activity.

This case concerns a probation agent’s search of the defendant’s computers.  Following a conviction for 2 counts of animal cruelty, a court placed the defendant on probation and imposed a condition that he not own or possess a computer.  Eventually, the agent removed two computers from the defendant’s home, looked at the contents of one and became concerned about images of sex involving underage females.  Based on that, the police obtained a warrant to search the computers further and found images and videos of young children engaged in sex.  The State charged the defendant with 8 counts of possession of child pornography.  The defendant unsuccessfully challenged the search (not the seizure) of the contents of his computers.  Subsequently, a jury convicted him of 4 counts.

Probation search issue:  Whether the probation agent had reasonable grounds to believe the defendant’s computers contained contraband, defined as “any item that [the defendant] was not allowed to possess under the conditions of his supervision or any item whose possession is forbidden by law.”  (Slip. op.,  ¶11).

Holding:  No, for two reasons: (1) “The conditions of [the defendant’s] probation did not prohibit him from possessing images depicting cruelty to animals or the mutilation of animals . . . [a]lthough it seems in hindsight that such a condition should have been imposed . . .” and (2) “the State fail[ed] to point to reasonable grounds supporting the probation agent’s belief that the computers contained something that was otherwise illegal to possess.” (Slip op., ¶¶ 12-13).  It pointed only to “generally suspicious” behavior.  That was not enough, so the court of appeals reversed the circuit court’s denial of the defendant’s suppression motion.

Forfeiture of issue/ineffective assistance of counsel:

The defendant’s trial counsel failed to argue that possession of pictures of animal abuse did not violate a condition of probation or any law.  The State then neglected to argue that the issue was forfeited.  So the court of appeals considered raising forfeiture sua sponte, but decided against it partly because the parties had not briefed the issue.  The court further noted that if it had affirmed the circuit court’s decision due to forfeiture, the defendant could present “ meritorious allegations of ineffective assistance of counsel” and “it appears that trial counsel’s failure to raise the issue was deficient and prejudicial.”  (Id. at ¶15).

Given that the defendant prevailed on the suppression issue, one wonders why the court bothered with that comment.  Perhaps some enterprising appellate lawyer can put it to good use in another case.

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