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State v. Tally Ann Rowan, 2010AP1398-CR, District 3/4, 7/28/11

certification; for Rowan: Paul G. LaZotte, SPD, Madison Appellate; case activity; review granted, 10/25/11

Extended Supervision Conditions – Limits on Fourth Amendment Rights

The issue presented by this appeal is whether a sentencing court violated the Fourth Amendment or Wis. Const. art. I, § 11, by setting a condition of extended supervision that allows any law enforcement officer to search the defendant’s person, vehicle, or residence for firearms, at any time and without probable cause or reasonable suspicion.  While it is clear that a court may impose conditions of extended supervision that limit a defendant’s Fourth Amendment rights, the issue presented here is whether it is permissible to impose a condition that, in essence, eliminates those rights.  There are no cases in Wisconsin that address this issue.  Because this is a novel issue of statewide importance that is certain to recur, we hereby certify this appeal to the Wisconsin Supreme Court for its review and determination, pursuant to Wis. Stat. Rule 809.61 (2009-10).[1]

The certification efficiently lays out the competing doctrines. “Special needs” allows a community corrections officer (as distinct from a police officer) to conduct searches under a reduced 4th A threshold; a parolee’s diminished expectation of privacy allows a state to authorize (via statute or regulation) suspicionless searches. United States v. Freeman, 479 F. 3d 743 (10th Cir. 2007), synthesizing: Griffin v. Wisconsin, 483 U.S. 868 (1987); United States v. Knights, 534 U.S. 112 (2001); and Samson v. California, 547 U.S. 843 (2006). The certification makes the following points:

  • A “special needs” analysis isn’t supported, because the condition allows searches by “any law enforcement officer.” Moreover, the condition authorizes search not merely on reduced, but on no cause.
  • Extended supervision is effectively parole (n. 7), therefore Samson (police may conduct suspicionless search of parolee) arguably applies. However, lower-court authorities such as Freeman have limited that impact to “such searches only when authorized under state law.” Neither statute nor administrative code regulation provide such authorization in Wisconsin, so the question may be whether the condition is permissible in the absence of statutory or regulatory authority.
  • Although the sentencing court clearly may impose intrusive conditions on supervised individuals, this one is breathtakingly broad: “While it is clear that limitations are allowed on a parolee or probationer’s Fourth Amendment rights, the condition imposed here essentially eliminated Rowan’s Fourth Amendment rights, by allowing searches by any law enforcement officer, at any time, at any place, for a small handgun, without need for even reasonable suspicion.  Whether this is permissible is an open question of statewide importance and certain to recur.”

Matter of curiosity, the first: from the facts (if accurately recited), it appears that Rowan may have been very choleric when drunk, threatening to shoot the arresting officer among other things. But other than passing reference to her conviction for CCW, the court doesn’t pause to say whether she even had a gun at the time. Certainly, she didn’t use one. Her principal brief indicates (p. 7) that on the driver’s side of her car there was “a gun case containing a box of ammunition and an unloaded semiautomatic handgun.” This, presumably, was the basis for the CCW. The express purpose of the challenged condition “is to make sure [she is] not in possession of a firearm.” If the underlying facts allow fourth amendment rights to be eliminated, it’s hard to see where the line might be drawn.

Matter of curiosity, the second: neither party asked for publication – neither here nor there, perhaps, but it goes to show you never can tell when a seemingly routine case bids to make a major impact.

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