In a case that expands the power of probation agents to search probationers’ computers and similar digital devices, the supreme court holds that the search of Purtell’s computer by his probation agent was reasonable because: 1) the computer was contraband, as Purtell was prohibited from possessing it by the rules of his probation; and 2) the agent had reasonable grounds to believe the computer might contain other items the probationer was prohibited from possessing—in this case, communications with underage girls or unauthorized Myspace accounts.
As a condition of probation ordered for animal cruelty convictions, Purtell was allowed to access computers only for school or work. (¶¶4-6). After he admitted to having a computer at home, his agent seized the computer. (¶¶8-12). She examined the contents and found files showing females, some appearing to be very young, engaged in sexual acts with animals. (¶14). Based on that information police got a warrant to search the computer. (¶14). The police found child pornography. (¶14).
The trial court rejected Purtell’s challenge to the agent’s search of his computer, holding she had reasonable suspicion to search it for “contraband,” including images of animal cruelty, given the nature of his convictions. (¶¶15-16). The court of appeals disagreed because Purtell’s conditions of probation didn’t expressly prohibit him from possessing such images and because there were no reason to believe the computer contained some other kind of contraband. (¶17).
The supreme court reverses, adopting an expansive rule: A probationer’s possession of a computer in violation of a rule or condition of probation makes the computer “contraband” that can be searched as contraband, without regard to whether the agent has reasonable grounds to believe the computer itself contains (i.e., has stored on it) other contraband or evidence of other rule violations.
¶28 …. 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 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. … 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.
¶30 Conditions of probation are imposed for a reason. … 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 [§ DOC 328.21(7) (2006)].
A dissent by Justice Bradley (joined by the Chief Justice) rejects the majority opinion as “short on legal analysis but striking in the length of its legal reach” (¶35) and criticizes its failure to address the implications of Riley on the ability of a government agent to search a computer or similar device. (¶¶40-49).
Is it so “difficult to imagine a scenario” where the agent lacks reasonable grounds to search a computer a probationer isn’t supposed to have? What about a probationer who possesses a computer in violation of the rule, but about whom there’s not a whit of evidence, nor even a whisper of suspicion, that he is violating any other rule in any way? Under the majority’s holding, the agent can seize and search the computer simply because it’s contraband. Treating a computer like it’s a packet of cocaine or a piece of stolen property is dubious in light of Riley‘s emphatic concerns (noted here) about the invasion of privacy that can result from allowing indiscriminate access to a cell phone or smart phone, concerns that apply with equal measure to a computer.
As Riley said, the nature of these devices and the immense amount of data they store or allow access to makes them different “in both a quantitative and a qualitative sense from other objects” that a person might possess. (Slip op. at 17). Before “the digital age,” a search of a person was limited by physical realities, so it constituted only a narrow intrusion on privacy. But both the storage capacity of the devices, and the ability of them to access data in the “cloud,” mean the devices contain a cache of sensitive personal information. (Slip op. at 17-22). Thus, a search of these devices will typically expose to the government far more than the most exhaustive search of a house, let alone other objects, because the devices may contain digital forms of sensitive records previously found in the home as well as a broad array of information never found in a home in any form. (Slip op. at 20). While it’s true probationers have a reduced expectation of privacy, Samson v. California, 547 U.S. 843, 849-50 (2006), it is not diminished to the point of vanishing. The effect of this decision, however, is to zero out the privacy interest of a probationer whose rules of supervision prohibit possession of a computer or similar digital device, as the court’s holding allows an indiscriminate search of the treasure trove of information on the computer that Riley, at least, was acutely aware of.
But do we get any discussion of Riley in the majority opinion? No: none. Beyond the citation quoted above, the majority drops a footnote (¶28 n.20) spurning the dissent’s reliance on Riley, Carroll, and State v. Sobczak, 2013 WI 52, 347 Wis. 2d 724, 833 N.W.2d 59, for the proposition that the seizure of an electronic device is distinct from a subsequent search of its contents (¶¶41-48). After reiterating Purtell was a probationer with diminished privacy interests, the majority merely notes that these cases, “while interesting, are of minimal assistance to our analysis.” But the majority’s “analysis,” which consists of the paragraphs quoted above, is no analysis at all. The court should provide some explanation for why Riley has no bearing on its novel holding that the search was valid based simply on the computer’s status as contraband. This is especially true given that this holding was unnecessary in light of the court’s finding there were reasonable grounds for the agent to search the computer. (¶¶31-32).
Some practical points: While this case involved a computer, smart phones are essentially “minicomputers,” so the holding here will carry over to phones and other similar digital devices, if DOC’s rules prohibit the probationer from possession such devices. And, of course, while Purtell was a probationer, the holding will apply with equal force to parolees or persons on extended supervision, again assuming their rules of supervision prohibit possession of a computer or like device. (¶6 n.6).
Finally, as the court notes (¶1 n.4), the relevant Administrative Code provisions were completely rewritten effective July 1, 2013. The current version of the rules cited by the court in this case are now found at DOC § 328.22(2) (a) and (3). At the time of the search in this case, the Code apparently didn’t authorize search of probationer’s property for mere evidence of rule violations; it had to be for contraband. That explains the majority’s need to turn a Myspace account (if not correspondence with teenage girls) into an “item” of contraband (¶32 n.32), an exercise criticized by the dissent as improperly transforming “actions” into “items” (¶¶53-54). Under the current rule, no such transformation will be needed, for whether they are “items” or “actions” they would clearly be evidence of rule violations and could be searched for.