State v. Richard L. Keller, 2017 WI App 19; case activity (including briefs)
Richard Keller’s probation rules required, among other things, that he neither possess a computer nor commit any crime. When his agent found computers at his house, she took them to Madison and had a Department of Criminal Investigations analyst examine them. Child porn was found and Keller moved for suppression, which the trial court granted. The court of appeals now reverses.
The court’s analysis proceeds in two steps: it first considers whether the facts known to the probation agent amounted to “reasonable grounds” (the lessened standard applicable to probation searches) to believe the computers contained contraband. The court finds such grounds, relying on State v. Purtell, 2014 WI 101, 358 Wis. 2d 212, 851 N.W.2d 417, another case involving the search of a probationer’s computer:
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 (6th Cir. 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.
The court next addresses Keller’s claim that because the DCI analyst is a law enforcement officer, the search of his computer was a “police search” requiring a warrant, rather than a probation search. The court concludes that the analyst’s involvement at the probation agent’s request did not transform the nature of the search; that is, the agent’s request was not a means for law enforcement to circumvent the warrant requirement. The court relies on State v. Devries, 2012 WI App 119, 344 Wis. 2d 726, 824 N.W.2d 913, which involved a probation agent’s request that an officer perform a PBT on the defendant.
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.
Conditions of Richard Keller’s bond also required that he neither posses a computer, nor commit any crimes; possession of the former in this case constituting a commission of the latter. Timing is everything. While DOC 328.23 is notably silent as to what an agent is to do with illegal contraband, the Division of Community Correction’s Electronic Case Reference Manual clearly indicates under Supervision/Violations/.02 Contraband Seizure that “any item illegal to possess shall be turned over to law enforcement,” law enforcement then to continue forward with their own independent investigation. That would be the standard assumption and operating practice anyways. Further, the section under Search/.07 Use of Law Enforcement clearly states, “It must be made clear to law enforcement that the agent is in charge of the search and law enforcement is present to advise” and that law enforcement’s primary role is to.. “give expert advice as to where, what and how to search.” I am not sure the events in this particular case transpired actually, as they were supposed to, according to those expected and acceptable practices. The lower Court apparently, was not so convinced of that either.