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State v. Jeremiah J. Purtell, 2012AP1307-CR, petition for review granted 11/20/13

Review of unpublished court of appeals decision; case activity

Issue (from the state’s Petition for Review)

Whether the court of appeals went beyond the boundaries of an appellate court when it reversed the trial court’s decision based on a sua sponte argument–and subsequent appellate factual determinations–that was never presented to the trial court.

Purtell was on probation for animal cruelty convictions, and as a condition of probation was allowed access to computers only for school or work. After Purtell admitted having a laptop at home, his agent went to his home and removed the laptop. She found files showing females, some appearing to be very young, engaged in sexual acts with animals; after a warrant to search the computer was obtained based on that information, police found child pornography. The sole issue on appeal was whether the agent had reasonable suspicion to search Purtell’s computer for “contraband,” which the state argued included images of animal cruelty. The court of appeals held there was no reasonable suspicion, first because Purtell’s conditions of probation didn’t expressly prohibit him from possessing such images, and, second, because the state pointed to no reasonable grounds to believe there was some other kind of contraband on the laptop, but relied only on “generally suspicious” behavior. (¶¶12-13).

Unable to identify any error in the court’s legal analysis or some novel issue of statewide concern, the state complains that the court’s conclusion about Purtell’s probation conditions was a sua sponte argument and required appellate fact-finding.  This is, to put it charitably, a stretch. Purtell’s brief-in-chief clearly argued–with citations to undisputed evidence in the record–that the agent was never able to identify any contraband, defined as an item he was prohibited from possessing by his probation conditions or by law. The state’s response brief appears to assume his probation conditions included a prohibition on images of animal cruelty, without bothering to understand the record. So, the state fails to understand the record on appeal, blames the court of appeals for its mistake, and gets a chance to be bailed out by the supreme court, which will now review a case that otherwise involves nothing more than the application of well-settled legal principles the to facts of the case.

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