                                                                2014 WI 101

                  SUPREME COURT           OF   WISCONSIN
CASE NO.:              2012AP1307-CR
COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent-Petitioner,
                            v.
                       Jeremiah J. Purtell,
                                 Defendant-Appellant.




                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                                 347 Wis. 2d 550, 830 N.W.2d 723
                                  (Ct. App. 2013 – Unpublished)

OPINION FILED:         August 1, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         February 5, 2014

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Washington
   JUDGE:              James K. Muehlbauer

JUSTICES:
   CONCURRED:
   DISSENTED:          BRADLEY, J., ABRAHAMSON, C.J., dissent. (Opinion
                       filed.)
  NOT PARTICIPATING:


ATTORNEYS:
       For      the    plaintiff-respondent-petitioner,   the   cause   was
argued by Sandra L. Tarver, assistant attorney general, with
whom on the briefs was J.B. Van Hollen, attorney general.




       For the defendant-appellant, the cause was argued by Ellen
J. Krahn, assistant state public defender, with whom on the
brief was Eileen A. Hirsch, assistant state public defender.
                                                                          2014 WI 101
                                                                   NOTICE
                                                    This opinion is subject to further
                                                    editing and modification.   The final
                                                    version will appear in the bound
                                                    volume of the official reports.
No.       2012AP1307-CR
(L.C. No.    2010CF86)

STATE OF WISCONSIN                              :             IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent-Petitioner,
                                                                        FILED
      v.                                                            AUG 1, 2014

Jeremiah J. Purtell,                                                  Diane M. Fremgen
                                                                   Clerk of Supreme Court

              Defendant-Appellant.




      REVIEW of a decision of the Court of Appeals.                   Reversed.



      ¶1      MICHAEL    J.    GABLEMAN,   J.   This     is    a     review      of    an

unpublished decision of the court of appeals1                  that reversed the

judgment     of   the    Washington    County   Circuit       Court2       convicting
Jeremiah      Purtell     of    four   counts   of      possession          of    child

pornography, contrary to Wis. Stat. § 948.12(1m) (2009-10).3 The

court of appeals held that the circuit court erred in denying

Purtell's motion to suppress evidence seized from a warrantless

      1
       State v. Purtell, No. 2012AP1307-CR, unpublished slip op.
(Wis. Ct. App. Mar. 7, 2013).
      2
          The Honorable James K. Muehlbauer presided.
      3
       All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
                                                                       No.     2012AP1307-CR



search of his personal computer.                    In denying Purtell's motion to

suppress, the circuit court reasoned that the probation agent's

search    of     Purtell's       computer      complied    with    Wis.        Admin.    Code

§ DOC     328.21(3)(a)         (Dec.       2006)4    because     she     had       reasonable

grounds     to       believe     the       computer,     which    Purtell          knowingly

possessed in violation of the terms of his probation, contained

contraband.          The court of appeals concluded that the probation

agent     improperly       searched         the     computer     under       the     mistaken

understanding that Purtell possessed images that violated the

terms of his probation.                Because the images were not prohibited

under the terms of Purtell's probation or otherwise illegal to

possess, the court of appeals held the probation agent lacked

reasonable grounds to search the computer.

     ¶2        The question presented in this case is whether the

warrantless probation search of Purtell's computer violated his

constitutional rights under the Fourth Amendment to the United

States Constitution and Article I, Section 11 of the Wisconsin

Constitution.
     ¶3         We hold the circuit court properly denied Purtell's

motion     to        suppress.         A     probation     agent's        search        of   a

probationer's property satisfies the reasonableness requirement

of the Fourth Amendment if the probation agent has "reasonable

grounds"        to     believe     the       probationer's        property          contains

     4
       Effective July 1, 2013, Wis. Admin. Code § DOC 328 was
repealed and recreated.      All subsequent citations to the
Wisconsin Administrative Code will be to the 2006 version, which
was the version in effect at the time of the search of Purtell's
computer on April 9, 2007.

                                               2
                                                                           No.    2012AP1307-CR



contraband.        Griffin v. Wisconsin, 483 U.S. 868, 872 (1987).

The record demonstrates that the probation agent had reasonable

grounds to believe Purtell's computer, which Purtell knowingly

possessed     in    violation       of       the    conditions        of    his    probation,

contained contraband.           Accordingly, we hold the probation search

of the contents of Purtell's computer did not violate the Fourth

Amendment     to     the    United       States       Constitution         or     Article     I,

Section     11     of   the     Wisconsin           Constitution        and      reverse    the

decision of the court of appeals.

                                       I.          BACKGROUND

      ¶4     The material facts underlying this appeal stem from

events occurring in November 2006, when Jeremiah J. Purtell pled

guilty to two felony counts of mistreating animals in a cruel

manner, contrary to Wis. Stat. § 951.02 (2005-06).                                  This 2006

guilty     plea    arose     from     events        that    transpired        after      Purtell

began dating a veterinary technician who he met through Myspace,

a   social-networking          website.            After    a   few    weeks      of     dating,

Purtell moved into the technician's apartment which she shared
with her two dogs, a Shetland sheepdog and a Scottish terrier.

Over the next several weeks, Purtell tortured her two dogs,

piercing     their      eyes   with      a    needle,       repeatedly        throwing      them

against a wall, and holding them by their necks.                              He also struck

the Scottish terrier with a pipe and cut the Shetland sheepdog

several     times       with    scissors.             Purtell         later      admitted     to

strangling        the      Scottish      terrier           to   death.            During     the

investigation into the animal abuse charges, the Madison Police
Department       examined      Purtell's       computer         and    found      over    thirty
                                               3
                                                                      No.   2012AP1307-CR



images depicting bestiality, including sex acts between women

and either dogs or horses.

    ¶5       On    March     28,    2007,   the    Dane    County       Circuit     Court5

withheld sentence, placed Purtell on 48 months of probation, and

imposed but stayed a sentence of 5 months and 29 days.                                  For

purposes of his probation, Purtell's supervision was transferred

from Dane to Washington County and his case was assigned to

Probation Agent Kristine Anderson ("Agent Anderson"), who had a

specialty         caseload     of      probationers            with     animal      abuse

backgrounds.

    ¶6       Agent     Anderson       met   with        Purtell       for   his    intake

appointment on April 6, 2007.                   At this time, Agent Anderson

reviewed with Purtell his judgment of conviction, the general

rules   of   community       supervision,6        and    the    conditions        she   was

imposing that were supplemental to those imposed by the court.7


    5
        The Honorable James Martin presided.
    6
       "Probation, parole and extended supervision all involve
persons under community supervision."   State v. Rowan, 2012 WI
60, ¶10, 341 Wis. 2d 281, 814 N.W.2d 854.     The conditions of
community supervision are enumerated in a form entitled "Rules
of Community Supervision," which provides a standardized list of
rules issued by the Department of Corrections that individuals
under community supervision must follow in addition to any other
court-ordered conditions.
    7
       Probation agents have the authority to establish rules of
probation that are supplemental to court-imposed conditions.
Wis. Admin. Code, § DOC 328.04(2)(d).    The Rules of Community
Supervision require the probationer to "follow any specific
rules that may be issued by an agent to achieve the goals and
objectives of your supervision.    The rules may be modified at
any time, as appropriate."

                                            4
                                                        No.    2012AP1307-CR



Purtell objected to several of these supplemental conditions,

including the stipulation he "not purchase, possess, nor use a

computer, software, hardware, nor a modem without prior agent

approval."8     Beyond the condition concerning computers, Agent

Anderson imposed several other rules based on her knowledge of

his criminal history.      Because his underlying conviction related

to animal cruelty and originated from using Myspace to meet the

veterinarian technician whose dogs he had tortured, Purtell was

"prohibited    from   maintaining   a   Myspace.com   account"   and   from

having   any   contact   with   animals.       Additionally,     Purtell's

presentence investigation report9 informed Agent Anderson that he

had a preoccupation with internet pornography and befriending

and dating underage girls.      Accordingly, Purtell was prohibited

from having any unsupervised contact with children.
     8
       This condition supplemented a condition that had already
been imposed by the circuit court which provided, as a condition
of Purtell's probation, he was "not to own or possess a
computer," but that he could use a computer "at his place of
business or school only."
     9
       The Dane County Circuit Court ordered a presentence
investigation report in 2006 after Purtell pled guilty to the
two counts of animal cruelty discussed above. While this report
is not in the record, a second presentence investigation report
was ordered by the Washington County Circuit Court after Purtell
was convicted by jury trial in September 2011 of four counts of
possessing child pornography. This 2011 report, which is in the
record, references the 2006 report that Agent Anderson relied
upon in assessing Purtell's treatment needs.        "The primary
purpose of the presentence investigation report is to provide
the sentencing court with accurate and relevant information upon
which to base its sentencing decision."        Wis. Admin. Code
§ DOC 328.27(1). However, it also serves a helpful role for the
probation   agent   in  "determining   levels   of   supervision,
classification, program assignment . . . decision making[,] and
in the overall correctional treatment" of the probationer. Id.
                                    5
                                                                      No.     2012AP1307-CR



      ¶7     During the intake meeting, Purtell disclosed to Agent

Anderson that he had a Myspace account.                    Agent Anderson reviewed

Purtell's    Myspace     page.         On    the   opening       page    there    was    an

animated    video   of   a     bull    with      audible    sound       declaring      "the

internet is for porn."           At the end of the video was a cartoon

illustration of a man standing behind a cow.                          In front of the

cow was an equal sign and an image of a half cow/half                                   man

character.      Agent Anderson also observed a blog post on his

Myspace     page    titled,      "oops . . . I           did     it     again,"     which

indicated Purtell was pursuing a relationship with his friend's

fifteen-year-old       sister.         Purtell     was     directed      to    close    his

Myspace account by the end of the day.

      ¶8     Purtell     continued          to   object     to     the      supplemental

conditions and stated he would not remove his computers unless

the circuit court judge ordered him to do so.                           Agent Anderson

requested    her    supervisor,        Correctional        Field      Supervisor       Chad

Frey ("CFS Frey"), to join the meeting and reinforce the need

for the supplemental conditions.                 CFS Frey informed Purtell that
he had a right to correspond with the circuit court and his

attorney regarding his objections, but clarified that until the

circuit     court   ordered      differently,        Purtell       was      expected     to

comply with all of the rules of his probation, including those

imposed by Agent Anderson.

      ¶9      Purtell eventually relented and agreed to surrender

the   two   computers     in     his    possession——a          laptop       and   desktop

computer——to his father the next day, April 7.


                                             6
                                                                No.     2012AP1307-CR



      ¶10     Later in the afternoon on April 6, Bob Adams, the

program coordinator of the group home where Purtell resided,

contacted Agent Anderson and reported that Purtell had returned

from the intake meeting very disgruntled and had skipped his

appointment for mental health counseling.              Purtell told Adams he

had   no    intention     of   complying    with    the    conditions       of    his

probation and would keep his computers and not close down his

Myspace account.          Purtell explained to Adams he would simply

hide his computers during scheduled home visits.10

      ¶11    On Monday, April 9, Adams called Agent Anderson and

informed her that Purtell had not removed his computers from his

room and had failed to report to the Washington County Jail to

submit a DNA sample.           Further, Adams conveyed that Purtell had

violated the group home's curfew on the evening of Saturday,

April 7.       Agent Anderson responded that she planned to go to

the group home with other probation agents and law enforcement

officers to place Purtell in custody for failing to comply with

the rules of his supervision.
      ¶12    Later   in    the   morning    on     April   9,     the     probation

officers     did,    indeed,     take   Purtell     into    custody.             Agent

Anderson, with two other probation agents, searched Purtell's




      10
       Depending on the level of supervision deemed most
appropriate, a probation agent is typically required to make
home visits to a probationer's home every 30 to 90 days.   See
Wis. Admin. Code § DOC 328.04(4).  The level of supervision is
generally based on the needs and risks of the probationer.
§ DOC 328.04(1).

                                        7
                                                                        No.    2012AP1307-CR



room    and   confiscated,       among    other         things,   a     laptop,    desktop

computer, other related computer equipment, and personal papers.

       ¶13      After    going     back       to    her    office,       Agent    Anderson

inventoried the items confiscated in the search and found among

Purtell's personal papers a crayon-colored picture of a kitten

with    accompanying       notes      that,        like    his     Myspace       activity,

suggested Purtell was attempting to engage in a relationship

with his friend's fifteen-year-old sister.

       ¶14    Agent     Anderson      then         searched       one     of     Purtell's

computers without a warrant.11                When she turned on the computer,

several titles to images popped up on the screen that involved

females engaged in sexual activity with animals and images of

what appeared to be underage females.                      Agent Anderson notified

her    supervisor,      CFS   Frey,      of       the   images    she     had    found   on

Purtell's      computer.         They     contacted        local        law    enforcement

officials, who subsequently obtained two search warrants which

allowed them to search Purtell's computer equipment, including

the hard drives of his laptop and desktop computers.12                                   The
resulting search revealed several still images and videos of


       11
       The circuit court noted in its findings of fact that
there was conflicting testimony regarding which computer was
searched by Agent Anderson.       Agent Anderson testified she
searched the laptop, while a police detective testified it was
the desktop computer.     Regardless of whose recollection was
correct, there is no dispute one of the computers was searched
and that several images of what appeared to be child pornography
were found.
       12
       Washington County Circuit Court, the Honorable Andrew T.
Gonring presided.

                                              8
                                                          No.    2012AP1307-CR



children engaged in sex acts.         On March 19, 2010, based on the

evidence   acquired   through   the   search   of   Purtell's     computers,

Purtell was charged with eight counts           of possession of child

pornography, contrary to Wis. Stat. § 948.12(1m).

    ¶15    Purtell moved to suppress the evidence seized from the

computers, arguing that the evidence was obtained in violation

of his Fourth Amendment rights.13         Purtell conceded that Agent

Anderson had "reasonable grounds"14 to search Purtell's room to

ascertain whether he had complied with the conditions of his

probation, and that Agent Anderson lawfully seized his computers

due to his non-compliance.       However, Purtell argued that Agent

Anderson   exceeded   the   permissible    scope     of   that    search   by

searching the contents of his computer.             According to Purtell,

Agent Anderson lacked both a warrant and reasonable grounds to

conduct the search, and the evidence subsequently seized should

therefore be suppressed.

    ¶16    The Washington County Circuit Court denied Purtell's

motion to suppress, concluding the search was justified because
there were reasonable grounds to believe the computer contained

    13
       Purtell's motion to suppress raised a second argument in
the alternative.    Purtell argued that if the circuit court
determined Agent Anderson did have reasonable grounds to search
the computer's contents, the evidence should still be suppressed
because a police detective had improperly viewed and catalogued
the evidence before obtaining a search warrant. This issue has
not been raised on appeal.
    14
       Wisconsin probation regulations permit a probation agent
to search a probationer's property "if there are reasonable
grounds to believe that the quarters or property contain
contraband . . . ." Wis. Admin. Code § DOC 328.21(3)(a).

                                      9
                                                                          No.     2012AP1307-CR



contraband.15          On September 1, 2011, Purtell was found guilty by

jury trial of four counts of possession of child pornography.

     ¶17         Purtell appealed from the judgment of conviction and

order denying his motion to suppress.                            The court of appeals

reversed        the    judgment       of   conviction,        concluding          that    Agent

Anderson did not have reasonable grounds to believe Purtell's

computers        contained        contraband.             State      v.     Purtell,        No.

2012AP1307-CR, unpublished slip op., ¶14 (Wis. Ct. App. Mar. 7,

2013).      The court reasoned that the State's argument centered

"on the faulty assumption that Purtell's probation conditions

prohibited        him    from    possessing         images       depicting        cruelty   to

animals or the mutilation of animals."                            Id.      Because images

depicting animal cruelty or mutilation were not prohibited under

Purtell's rules of probation, and were not otherwise illegal,

there     was    no     basis   on    which   "to       affirm     the    circuit     court's

denial of Purtell's suppression motion."                      Id.

     ¶18        The State petitioned this court for review, which we

granted on November 20, 2013.
                                     II.   STANDARD OF REVIEW

     ¶19        This     case     requires         us    to   address           whether     the

warrantless           search    of    Purtell's         computer     by     his     probation




     15
       "Contraband" is defined in the Wisconsin Administrative
Code as "[a]ny item which the client may not possess under the
rules or conditions of the client's supervision," Wis. Admin.
Code § DOC 328.16(1)(a), or "any item whose possession is
forbidden by law." § DOC 328.16(1)(b).

                                              10
                                                          No.    2012AP1307-CR



officer violated his Fourth Amendment rights.16           Whether evidence

should have been suppressed as the result of a Fourth Amendment

violation is a mixed question of law and fact.                  We take the

circuit    court's   findings    of    fact   as   true   unless     clearly

erroneous, and "our application of constitutional principles to

those facts is de novo."        State v. Sobczak, 2013 WI 52, ¶9, 347

Wis. 2d 724, 833 N.W.2d 59.

                                III. DISCUSSION

     ¶20   The question before this court is whether Purtell's

Fourth Amendment rights were violated when his probation officer

searched the contents of his computer.17           The State argues that




16
  Purtell challenges the search of his computer under both the
United States and Wisconsin Constitutions.      This court has
ordinarily interpreted the protections of the Fourth Amendment
to the United States Constitution and Article I, Section 11 of
the Wisconsin Constitution as coextensive. State v. Artic, 2010
WI 83, ¶28, 327 Wis. 2d 392, 786 N.W.2d 430 (citing State v.
Johnson, 2007 WI 32, ¶20, 299 Wis. 2d 675, 729 N.W.2d 182). For
the sake of efficiency, this opinion will expressly address only
Purtell's Fourth Amendment challenge, but we note our analysis
applies to Article I, Section 11 of the Wisconsin Constitution
as well.
     17
       Purtell argues that this issue is not properly before
this court because the constitutionality of the search was not
raised by the State in its petition for review.    See Motion to
Strike State's Brief Because It Addresses An Issue Not Raised In
Its Petition For Review (Motion to Strike), filed Dec. 20, 2013.
In our order granting the State's petition for review, we
stated, "the plaintiff-respondent-petitioner may not raise or
argue issues set forth in the petition for review unless
otherwise ordered by this court."

                                      11
                                                                       No.    2012AP1307-CR



the   probation       officer    had     reasonable         grounds    to    believe   the

contents of Purtell's computers contained contraband because the

computers themselves were contraband under the conditions of his

probation.           We   conclude     that    the     record    demonstrates       Agent

Anderson       had    reasonable       grounds        to    believe     the     computers

contained contraband and, accordingly, hold the circuit court

properly denied Purtell's motion to suppress.

                 a. Fourth Amendment Principles in the Context of

                                              Probation

      ¶21      The    Fourth    Amendment          protects   "[t]he     right    of   the

people    to    be    secure    in     their       persons,    houses,       papers,   and

effects, against unreasonable searches and seizures . . . ."

U.S. Const. amend. IV.            "A 'search' occurs when an expectation

of privacy that society is prepared to consider reasonable is

infringed."           United    States    v.       Jacobsen,    466     U.S.    109,   113

(1984).          "The      touchstone         of      the     Fourth     Amendment      is

reasonableness," United States v. Knights, 534 U.S. 112, 118


     Once this court has accepted review of a case, however, it
is within our "discretion to review any substantial and
compelling issue the case presents."      Chevron Chem. Co. v.
Deloitte & Touche, 176 Wis. 2d 935, 945, 501 N.W.2d 15 (1993).
Whether   the   search  of  Purtell's  computer   satisfied  the
reasonableness requirement of the Fourth Amendment is a
substantial issue that is dispositive to the question of whether
the circuit court's denial of Purtell's suppression motion was
proper.    Further, the question of whether Agent Anderson had
reasonable grounds to believe that Purtell's computer contained
contraband has been thoroughly argued and briefed by the parties
at every stage of litigation in this case.    Therefore, we find
it is appropriate to reach the underlying merits presented and
consider whether the search of Purtell's computer violated his
Fourth Amendment rights.

                                              12
                                                                           No.       2012AP1307-CR



(2001), and the reasonableness of any search is considered in

the    context       of    the     individual's        legitimate         expectations           of

privacy.      Maryland v. King, 567 U.S. ___, 133 S. Ct. 1958, 1978

(2013).

       ¶22    Here, a Fourth Amendment challenge is being made by a

probationer.              The    Fourth      Amendment    affords         protection            only

against searches that are unreasonable, and what is unreasonable

for a probationer differs from what is unreasonable for a law-

abiding citizen.            Law-abiding citizens are entitled to the full

panoply      of    rights       and   protections       provided      under          the   Fourth

Amendment.           Conversely,        citizens       convicted          of     a   crime       and

incarcerated          have        had       their     privacy        interests             largely

"extinguished by the judgments placing them in custody."                                    Banks

v. United States, 490 F.3d 1178, 1186 (10th Cir. 2007) (quoting

Green v. Berge, 354 F.3d 675, 679 (7th Cir. 2004) (Easterbrook,

J., concurring)); see also United States v. Huart, 735 F.3d 972,

975 (7th Cir. 2013) ("It is well settled that prisoners have no

reasonable expectation of privacy in the belongings they keep
with   them.").            Somewhere        between    these    two       extremes         on   the

"privacy continuum," Banks, 490 F.3d at 1186, lies convicted

felons    placed      on        conditional     release,       such       as     probation       or

parole.           Probationers        are    entitled    to     a    certain          degree      of

constitutional protection under the Fourth Amendment, but their

rights       against            warrantless         searches        and        seizures          are

significantly curtailed.                    See Samson v. California, 547 U.S.

843, 849-850 (2006) (noting that probationers "do not enjoy the
absolute liberty to which every citizen is entitled," and that
                                               13
                                                              No.     2012AP1307-CR



probationers have "significantly diminished privacy interests")

(internal quotation marks omitted).

       ¶23     This is so because, like incarceration, probation is

"a form of criminal sanction imposed by a court upon an offender

after verdict, finding, or plea of guilty."                 Griffin, 483 U.S.

at 874.       Wisconsin probationers are in the legal custody18 of the

Wisconsin Department of Corrections, where they are subject to

the "control of the department under conditions set by the court

and rules and regulations established by the department . . . ."

Wis.        Stat.   § 973.10(1).        Consequently,       while     law-abiding

citizens       enjoy   the   fundamental     rights   and   liberty     interests

conferred by the constitution, probation has been characterized

as   a      "conditional     liberty   [that   is]    properly      dependent   on

observance of special [] restrictions."                 Morrissey v. Brewer,

408 U.S. 471, 480 (1972).

       ¶24     These special restrictions are vitally important to

the State's effective administration of its probation system.

       18
         Legal scholars have critiqued courts for deciding
probation search cases under a "constructive custody" rationale,
arguing that by stating in conclusory fashion a probationer is
in "custody" while outside of prison, they create a legal
fiction that ignores the numerous ways in which a probationer's
life is far more akin to that of an ordinary citizen's than a
prisoner's.    See 4 Wayne R. LaFave, Search and Seizure, A
Treatise on the Fourth Amendment, § 10.10(a) (5th ed. 2012). To
clarify, we do not use the term "legal custody" to equate the
Fourth Amendment rights afforded to a probationer with those
afforded a prisoner. Instead, we merely recognize probationers
are in the "legal custody" of the State because, unlike ordinary
citizens, they are still subject to State supervision to ensure
successful reintegration into the community, lawful conduct, and
public safety.

                                        14
                                                                             No.        2012AP1307-CR



As the United States Supreme Court in                               Griffin       explained, "A

State's operation of a probation system . . . presents 'special

needs' beyond normal law enforcement . . . ."                               483 U.S. at 873-

74.     The     restrictions           inherent        in     the   probation           system     are

necessary to "assure that the probation serves as a period of

genuine rehabilitation and that the community is not harmed by

the    probationer's            being     at     large[]";          these       dual      goals    of

rehabilitation           and     public        safety        "require       and     justify        the

exercise of supervision to assure that the restrictions are in

fact observed."           Id. at 875.

       ¶25    The        background        and         criminal         history           of      each

probationer         is     different,          and      the     individual's             level      of

supervision and corresponding privacy interests will vary.                                         It

is    the    probation          agent's    responsibility             to    obtain        necessary

information         about        the     probationer           to     provide           appropriate

supervision, evaluate their needs and security risks, determine

their goals and objectives, and establish written supplemental

rules of supervision.               This flexibility assists in ensuring the
"degree of impingement upon [a probationer's] privacy" is no

greater than necessary to support rehabilitation and safeguard

the   community          from    potential       harm.          Id.        This     case-by-case

approach      means       that     probation          "can    itself       be     more     or     less

confining depending upon the number and severity of restrictions

imposed," and in certain circumstances, "the probation [agent]

must be able to act based upon a lesser degree of certainty than

the    Fourth       Amendment          would     otherwise          require        in     order    to


                                                 15
                                                                                     No.       2012AP1307-CR



intervene       before         a     probationer               does    damage        to     himself       or

society."       Id. at 874, 879.

          b. The Probation Agent Had Reasonable Grounds to Search

                                        Purtell's Computer.

       ¶26     Wisconsin           probation         regulations           permit          a     probation

agent     to     search        a         probationer's            property           "if       there     are

reasonable       grounds           to    believe         that     the    quarters          or     property

contain        contraband           .     .    .     ."           Wis.     Admin.           Code       § DOC

328.21(3)(a).             In       Griffin          v.    Wisconsin,           the     United        States

Supreme      Court        upheld          this       regulation,          concluding              that    it

"satisfies          the   Fourth          Amendment's            reasonableness             requirement

under well-established principles."                              483 U.S. at 873.                    Griffin

held that the special needs of Wisconsin's probation system in

effectively           supervising              probationers              and        protecting           the

community       justified           replacing            the    standard       of     probable         cause

with a lesser "reasonable grounds" standard.                                   The Court reasoned

that probation officers must be permitted "to respond quickly to

evidence       of    misconduct"              and    "the       deterrent        effect          that    the
possibility         of    expeditious            searches"            creates       would       be    unduly

compromised by a probable cause requirement.                                        Id. at 876; see

also Knights, 534 U.S. at 121 ("Although the Fourth Amendment

ordinarily requires the degree of probability embodied in the

term    'probable            cause,'           a         lesser        degree         satisfies          the

Constitution          when         the    balance          of     governmental             and       private

interests makes such a standard reasonable.").

       ¶27     Purtell does not challenge the search of his residence
(a group home) or the seizure of his computers.                                            He concedes
                                                     16
                                                                      No.    2012AP1307-CR



Agent Anderson had reasonable grounds to search his room and

that his computers were "contraband" under the terms of his

probation.         Instead, Purtell argues that, while his computers

were lawfully seized as contraband, Agent Anderson's search of

the computer's contents constituted an independent, governmental

search      that    violated       his    Fourth    Amendment    privacy      interests.

The    court       of    appeals     agreed,       concluding     that      the    State's

argument      rested      on   the       faulty    assumption     that      Purtell    was

prohibited from possessing images depicting cruelty to animals.

Agent Anderson testified during the suppression hearing that she

was concerned Purtell may have images depicting animal cruelty

or mutilation on his computers.                     Because possessing images of

animal cruelty was not prohibited under Purtell's conditions of

probation, and were not otherwise illegal to possess,19 the court

of    appeals          concluded     that     Agent      Anderson     did     not      have

"reasonable        grounds"     to       believe    Purtell's    computer         contained

contraband.        Purtell, No. 2012AP1307-CR, ¶14.

       ¶28    We disagree.           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


       19
       In United States v. Stevens, 559 U.S. 460, 482 (2010),
the United States Supreme Court held that a federal statute
prohibiting the creation, sale, or possession of depictions of
animal cruelty violated the First Amendment.

                                              17
                                                                 No.   2012AP1307-CR



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.20               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.



      20
       The dissent cites to several cases which stand for the
proposition that the seizure of an electronic device is distinct
from a subsequent search of its contents. Dissent, ¶¶41-48; see
also Riley v. California, 134 S. Ct. 2473 (2014) (addressing the
warrantless search of the contents of the defendant's cell phone
following his arrest); State v. Sobczak, 2013 WI 52, 347
Wis. 2d 724, 833 N.W.2d 59 (discussing whether a third party's
consent for law enforcement to search the defendant's home could
validate the officer's subsequent search of the defendant's
laptop); State v. Carroll, 2010 WI 8, 322 Wis. 2d 299, 778
N.W.2d 1 (reviewing the validity of a warrantless search of the
contents of an arrestee's cell phone).      Our case involves a
probationer——who is already subject to diminished privacy
interests——and the search of contraband that he knowingly
possessed in violation of the terms of his probation. The cases
cited by the dissent, while interesting, are of minimal
assistance to our analysis.

                                       18
                                                            No.     2012AP1307-CR



       ¶30    Conditions    of probation are imposed for a reason.21

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.

       ¶31    The Wisconsin Administrative Code sets forth a list of

factors      to   be   considered    in    determining   whether    there    are

reasonable grounds to believe a probationer's property contains

contraband:

       21
       To be constitutional, conditions must be designed to
assist "the convicted individual in conforming his or her
conduct to the law," and not be overly broad. Rowan, 341 Wis.
2d at ¶10. As we explained in Rowan,

       [a] condition is reasonably related to a person's
       rehabilitation if it assists the convicted individual
       in conforming his or her conduct to the law.     It is
       also appropriate for circuit courts to consider an end
       result of encouraging lawful conduct, and thus
       increased protection of the public, when determining
       what individualized probation . . . conditions are
       appropriate for a particular person.

Id. (citations and footnotes omitted). As previously noted,
Purtell does not challenge the propriety of the condition that
he not own, possess, or use a personal computer.

                                          19
                                                                          No.     2012AP1307-CR


       (a)   The observations of staff members.

       (b)   Information provided by informants.

       (c)   The reliability of the information provided by an informant. In evaluating
             the reliability of the information, the field staff shall give attention to the
             detail, consistency and corroboration of the information provided by the
             informant.

       (d)   The reliability of the informant. In evaluating the informant's reliability,
             attention shall be given to whether the informant has supplied reliable
             information in the past and whether the informant has reason to supply
             inaccurate information.

       (e)   The activity of the client that relates to whether the client might possess
             contraband or might have used or be under the influence of an intoxicating
             substance.

       (f)   Information provided by the client that is relevant to whether the client has
             used, possesses or is under the influence of an intoxicating substance or
             possesses any other contraband.

       (g)   The experience of a staff member with that client or in a similar
             circumstance.

       (h)   Prior seizures of contraband from the client.

       (i)   The need to verify compliance with the rules of supervision and state and
             federal law.

Wis.    Admin.    Code      § DOC      328.21(7).            As    a   condition        of     his

probation, Purtell was "not [to] purchase, possess, nor use a

computer, software, hardware, nor a modem without prior agent




                                              20
                                                                                   No.    2012AP1307-CR



approval."22           (Emphasis            added.)        Here,        Agent        Anderson        was

justified in ascertaining the extent of Purtell's noncompliance

with    the      rules       of   his        supervision.            Wis.    Admin.       Code     § DOC

328.21(7)(i).             It      was       already     established           that       Purtell    had

knowingly violated the condition against possessing a computer,

and    it     was      unquestionably             Agent     Anderson's             prerogative        to

ascertain whether he had further violated the conditions imposed

on his probation by using those computers.                                     It is irrelevant

whether       the      images          of    animal      cruelty            were    prohibited       by

Purtell's probationary terms or otherwise illegal to possess;

the    use       of    the     computer          was    itself        prohibited,          and     Agent

Anderson         had     reasonable              grounds        to     believe           Purtell     had

impermissibly used them.

       ¶32       Further,         it        is    apparent           from     Agent        Anderson's

testimony        at    the     suppression             hearing       she     considered          several

factors set forth in the Wisconsin Administrative Code——which

probation        agents        are      instructed         to    consider          in     determining

whether      a    probationer's              property      contains          contraband——in          her
decision to search Purtell's computer:                                 (1) Purtell's Myspace

page and personal papers indicated he was attempting to start a

       22
       The court of appeals misstated Purtell's condition of
probation as prohibiting him from "own[ing] or possess[ing] a
computer and that he could only use a computer 'at his place of
business or school.'" Purtell, No. 2012AP1307CR, ¶2.        This
condition, which was stated in Purtell's judgment of conviction,
was originally imposed by the Dane County Circuit Court. Agent
Anderson testified at the suppression hearing that, after
Purtell was transferred to Washington County, the circuit court
left it to her discretion whether the condition be modified or
removed.

                                                   21
                                                         No.   2012AP1307-CR



relationship with a fifteen-year-old girl, and Myspace is the

same avenue he used to contact a prior victim.23           Agent Anderson

knew of Purtell's background befriending underage girls and had

prohibited   him   from   being   in    contact   with   children.      She

expressed concern that he may have other Myspace accounts or be

using other networking sites, such as Facebook, where he would

have access to other potential victims;24 (2) Purtell's Myspace

page had cartoon images of human/animal hybrids, which Agent

Anderson——having an expertise in animal cruelty cases25——felt was

a disturbing signal of potential future violence against, not

just animals, but also people;26 (3) Purtell did not attend his




    23
       A factor that probation agents are instructed to consider
in determining whether to search a probationer's property is
"[t]he activity of the client that relates to whether the client
might possess contraband . . . ."       Wis. Admin. Code § DOC
328.21(7)(e).
    24
       Two   additional  factors  that   probation  agents are
instructed to consider prior to conducting a search are "[t]he
experience of a staff member with that client or in a similar
circumstance," Wis. Admin. Code § DOC 328.21(7)(g), and "[t]he
need to verify compliance with rules of supervision and state
and federal law," Wis. Admin. Code § DOC 328.21(7)(i).
    25
       Agent Anderson's expertise with animal cruelty cases
corresponds to Wis. Admin. Code § DOC 328.21(7)(g), which lists
"[t]he experience of a staff member with that client or in a
similar circumstance," as a factor in determining whether
reasonable grounds exist to search a probationer's belongings.
    26
        The author of the 2006 presentence investigation report
ordered by the Dane County Circuit Court expressed concern that
Purtell viewed the two dogs he abused as "human," in that he
believed the dogs could make a conscious decision to reject him.

                                   22
                                                                       No.     2012AP1307-CR



scheduled mental health assessment, did not submit his court-

ordered DNA sample, and failed to follow the residency rules of

his group home by missing curfew;27 and (4) Purtell displayed

extreme reluctance to surrender his computers28, and was even so

bold as to inform the coordinator of his group home that he

intended    to    hide       them   during    home     visits.29            Taken    in   the

aggregate,       and       given    Purtell's       blatant     disregard           for   the

conditions       of    his    probation,       as    well      as     Agent    Anderson's

knowledge    of        Purtell's       background        and        those     of     similar

probationers,         we    conclude   there      were   reasonable           grounds     for

     Agent Anderson was also aware that Purtell's history of
torturing animals stemmed back to childhood. She testified that
she had spoken directly with Purtell's mother regarding
Purtell's childhood, and was informed that Purtell, as a child,
had "disciplined" a family pet and injured the animal to such a
degree they never had animals in the home again.
    27
       Purtell's conduct can be properly considered by Agent
Anderson under Wis. Admin. Code § DOC 328.21(7)(e), describing
"[t]he activity of the client that relates to whether the client
might possess contraband" as a factor in determining whether
reasonable grounds exist to justify a search.
    28
       The prior seizure of Purtell's computers is a relevant
consideration for Agent Anderson under Wis. Admin. Code § DOC
328.21(7)(h),   which   provides  that   "[p]rior  seizures   of
contraband from the client" is pertinent in establishing
reasonable grounds for searching a probationer's property. This
is an especially germane fact here, given that the search of the
seized computer's contents is at issue.
    29
       Purtell's comments to the group home coordinator relate
to three factors probation agents are instructed to consider
prior to searching a probationer's property: "[t]he observations
of staff members," Wis. Admin. Code § DOC 328.21(7)(a), "[t]he
experience of a staff member with that client,"            § DOC
328.21(7)(g), and "the need to verify compliance with the rules
of supervision and state and federal law," § DOC 328.21(7)(i).

                                             23
                                                        No.   2012AP1307-CR



believing   Purtell's   computers   contained    contraband,30    such   as

correspondence   with    underage    girls31    or   additional   Myspace




    30
       We read Agent Anderson's testimony in the suppression
hearing as providing an ample foundation for believing the
contents of Purtell's computers contained contraband.   However,
to the extent Agent Anderson's subjective intent to search
Purtell's computer was motivated by concern he might possess
still images of animal cruelty or mutilation, which was the
basis for the court of appeals' decision,      we conclude that
stated objective by Agent Anderson does not impact the
lawfulness of the search. The Supreme Court has repeatedly held
that a police officer's motive does not invalidate "objectively
justifiable behavior under the Fourth Amendment."      Whren v.
United States, 517 U.S. 806, 813 (1996) ("[T]he fact that the
officer does not have the state of mind which is hypothecated by
the reasons which provide the legal justification for the
officer's action does not invalidate the action taken as long as
the circumstances, viewed objectively, justify that action.")
(internal quotation marks omitted).    See also State v. Sykes,
2005 WI 48, ¶29, 279 Wis. 2d 742, 695 N.W.2d 277 (holding the
actual motivation of an officer does not determine the
constitutionality of a stop).
    31
       The dissent argues that "correspondence with underage
girls" is not contraband under the terms of Purtell's probation.
Dissent, ¶53.   Perhaps the dissent is overlooks the terms of
Purtell's probation, which clearly provide that Purtell is
prohibited from having any unsupervised contact with children.



                                    24
                                                          No.     2012AP1307-CR



accounts.32    In     addition,    Agent     Anderson   was    justified    in

ascertaining    the    extent     of   Purtell's   probation    violation   by

determining whether he had used the computer in addition to

possessing it, and if so, the degree of his use.                Accordingly,


     We    take   issue   with    the   dissent's    constrictive
interpretation of "item" under the statutory definition of
contraband, Wis. Admin. Code § DOC 328.21. We      fail to see a
meaningful difference between a probation officer having
reasonable grounds to believe property contains a tangible
"item" establishing illegal conduct and reasonable grounds to
believe property contains intangible evidence of illegal
conduct.   Under the dissent's unduly narrow interpretation of
the relevant statutes, a probation officer would not have
reasonable grounds to search a probationer's property even if he
or she was certain the property contained evidence of the
probationer's non-compliance with the terms of his or her
probation.    Such an interpretation is contrary to the dual
purposes of the Fourth Amendment "special needs" exception, in
that it would run the risk of endangering the public and state
employees, as well as hinder the rehabilitation of probationers.
     32
        Under the terms of his probation, Purtell was "prohibited
from maintaining a Myspace.com account."     The dissent objects
that   "[t]his   condition  addresses   an  action   rather   than
possession of an item. A prohibited action does not fall within
the definition of contraband." Dissent, ¶54. If possession of
an account——whether it be a social media account, a bank
account, a web page, or a line of credit——is prohibited by an
individual's probationary terms, violation of that term surely
constitutes the possession of "contraband."        The dissent's
characterization of social media accounts fails to embrace the
reality of our increasingly digitized modern era.           Simply
because an "account" cannot be held in one's hand, does not mean
it does not exist.

     The dissent also argues that Agent Anderson did not need to
search Purtell's computer because she "could check his Myspace
activity 'separately because she had his password and had done
that on her own without the computers.'"     Id.   This fails to
account for the possibility that Purtell had multiple Myspace
accounts that had not been disclosed to his probation officer
and would be viewable in his computer's web history.

                                        25
                                                                                  No.    2012AP1307-CR



we   conclude          Agent      Anderson's          warrantless          search       of   Purtell's

computer complied with Wis. Admin. Code § DOC 328.21(3)(a) and

did not violate Purtell's Fourth Amendment rights.

                                            IV.        CONCLUSION

       ¶33    We hold the circuit court properly denied Purtell's

motion       to        suppress.            A     probation             agent's     search       of     a

probationer's property satisfies the reasonableness requirement

of the Fourth Amendment if the probation agent has "reasonable

grounds"          to        believe     the       probationer's             property           contains

contraband.            Griffin, 483 U.S. at 874.                        The record demonstrates

that   the        probation         agent       had    reasonable          grounds       to     believe

Purtell's         computer,           which       Purtell           knowingly       possessed          in

violation         of        the     conditions             of     his     probation,         contained

contraband.             Accordingly, we hold the probation search of the

contents      of        Purtell's       computer            did     not    violate       the    Fourth

Amendment         to     the      United        States          Constitution      or     Article       I,

Section      11        of     the     Wisconsin            Constitution       and       reverse       the

decision of the court of appeals.
       By    the       Court.—The       decision            of    the     court    of    appeals       is

reversed.




                                                      26
                                                                      No.       2012AP1307-CR.awb




     ¶34    ANN WALSH BRADLEY, J.                 (dissenting).             The       State    of

Wisconsin seeks review of an unpublished decision of the court

of   appeals      that     reversed         the    defendant's          conviction.           In

reinstating the defendant's conviction, the majority rides two

analytical horses.

     ¶35    In one, the majority frames an analysis to suggest

that because the computer was lawfully seized as contraband, the

contents of the computer can be searched without a warrant.

Majority op., ¶¶28-29.               This brief discussion, set forth in a

mere two paragraphs, is short on legal analysis but striking in

the length of its legal reach.

     ¶36    In     its     other       analytical             approach,         the     majority

concludes    that     the      record       demonstrates            that    the       agent   had

reasonable grounds to believe the computer contained contraband.

Majority    op.,    ¶20.        In    order       to    reach    this       conclusion,       the

majority     relies      on         prohibited         actions,       rather          than    the

possession of prohibited items.                        It fails to recognize that
"actions" do not fall within the definition of "contraband."

     ¶37    Like the unanimous court of appeals, I determine that

the search of the contents of the computer was not supported by

reasonable       grounds       to    believe       that       the    computer          contained

contraband.       Additionally, I conclude that a lawful seizure of a

computer    as    contraband         does    not       give    license       to     search    its

contents     without       a    warrant.               Accordingly,         I     respectfully

dissent.
                                              I

                                              1
                                                                              No.   2012AP1307-CR.awb


       ¶38       At       issue     in    this       case      is     a       probation             agent's

warrantless search of a probationer's computer.                                     Purtell argues

that although his computers were lawfully seized as contraband,

Agent Anderson's search of the contents of one of the computers

constituted an independent, governmental search that violated

his     Fourth       Amendment           privacy      interests.                    In        its     first

conclusion, the majority determines that because the computer

was    lawfully       seized        as    contraband,           its       contents             could       be

searched without a warrant.

       ¶39     The    analysis       in    support        of    this          conclusion            is     set

forth in a mere two paragraphs.                        At the outset, the majority

opines    that       "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."                                               Id.,

¶28.      It     ends       the    analysis        with     a       conjecture            and        abrupt

conclusion:          if    there     "would        ever        conceivably"               be        such     a

scenario, it is not this case.                   Id., ¶30.

       ¶40      It is unclear why the majority finds it so "difficult
to    imagine    such       a    scenario"    and      that         it    would          be    virtually

inconceivable.             One need look only to one of the most legally

debated issues of the day: whether the search of the contents of

a     legally    seized           computer    is       constitutionally                   permissible

without a warrant.

       ¶41     The United States Supreme Court recently weighed in on

this issue in the context of the search of the contents of a

cellphone.       Riley v. California, 573 U.S. ___, 134 S. Ct. 2473
(2014).      In a decision that is being heralded as an important

                                                 2
                                                             No.   2012AP1307-CR.awb


statement on privacy rights in the digital age, the unanimous

court concluded that "officers must generally secure a warrant

before conducting" a search of data on cell phones.                         Id. at

2485.

      ¶42    Although Riley was decided in the context of a search

of a cell phone, the court observed that the "term 'cell phone'

is itself misleading shorthand; many of these devices are in

fact minicomputers that also happen to have the capacity to be

used as a telephone."          Id. at 2489.1       Furthermore, "the possible

intrusion on privacy is not limited in the same way" as a search

of   other    physical        objects,    given     their     "immense     storage

capacity"     which     has    "several       interrelated    consequences      for

privacy."    Id. at 2489.

      ¶43    The fact that the primacy of these privacy rights has

been recently reaffirmed, even for those with reduced privacy

interests, makes the majority's decision all the more troubling.

As Justice Roberts explained, Fourth Amendment rights apply also

to   those   with     diminished   privacy       rights.     The    existence    of
"diminished privacy interests":

      does not mean that the Fourth Amendment falls out of
      the picture entirely. Not every search "is acceptable

      1
       Likewise, the Seventh Circuit has acknowledged that
cellphones are the equivalent of a computer.    United States v.
Flores-Lopez, 670 F.3d 803, 805 (7th Cir. 2012) ("Judges are
becoming aware that a computer (and remember that a modern cell
phone is a computer) is not just another purse or address book.
. . . computers hold so much personal and sensitive information
touching on many private aspects of life. . . . [T]here is a far
greater potential for the 'intermingling' of documents and a
consequent invasion of privacy when police execute a search for
evidence on a computer.").

                                          3
                                                                No.    2012AP1307-CR.awb

     solely because a person is in custody."        To the
     contrary, when "privacy-related concerns are weighty
     enough"   a    "search   may   require    a   warrant,
     notwithstanding the diminished expectations of privacy
     of the arrestee."
Id. at 2488 (citations omitted).

     ¶44       Regardless      of    whether     the   majority's        analysis    is

hampered       by    its   self-proclaimed     difficulty       in    imagination    or

some other impediment, it is surprising that the majority gives

the issue such short shrift.

     ¶45       It bears noting that all parties agree that the search

of Purtell's residence (the group home) was permissible.                            The

agent had reason to believe, based on communication with the

group home, that Purtell possessed computers in violation of his

rules     of     probation.          Computers    were    the        contraband,    and

computers were seized.              The focus of this inquiry is not whether

there were reasonable grounds to search the residence or seize

the computers, but whether there were independent grounds to

search the contents of one of the computers without a warrant.

     ¶46       The majority glosses over this analytical distinction,

despite        our    precedent      establishing      that   under       the   Fourth

Amendment, each warrantless search must be analyzed separately.

State v. Carroll, 2010 WI 8, ¶16, 322 Wis. 2d 299, 778 N.W.2d 1

("[W]e assess the legality under the Fourth Amendment of each

warrantless search or seizure that produced the evidence.").2



     2
       This framework is applicable even though a different
Fourth Amendment standard applies to searches of probationers in
Wisconsin. See State v. Griffin, 131 Wis. 2d 41, 57, 388 N.W.
2d 535 (1986), aff'd, 483 U.S. 868 (1987) ("Though a probationer
has a diminished expectation of privacy, he still has privacy
rights that must be respected.").
                                4
                                                                       No.   2012AP1307-CR.awb


         ¶47    For example, in State v. Sobczak, 2013 WI 52, ¶30, 347

Wis. 2d 724, 833 N.W.2d 59, the court determined that although a

third party's consent provided constitutional authority for a

warrantless entry into a home, a separate analysis was needed to

determine whether that third party consent allowed for a search

of   a    laptop       in    the    home.        The       court    explained       that    "[t]o

validate the search of an object within a home on consent, the

government           must   satisfy       the     same      requirements       as    apply     to

consent to enter."              Id., ¶31.

         ¶48    This    concept      is     also      illustrated       by   Carroll.          In

Carroll, a police officer handcuffed Carroll after a high-speed

chase, and then grabbed a cell phone that Carroll had dropped.

322 Wis. 2d 299, ¶¶5-6.                     While the officer had the phone, it

rang, and the officer answered.                           The caller made a request to

purchase cocaine.             The officer also browsed through the contents

of the phone, including the phone's image gallery.                                  On appeal,

this     court       addressed      the     question        of     whether   the     officer's

warrantless            search       of     the        phone's       image      gallery        was
constitutional.             Id., ¶2.       The court determined that even though

the seizure of the phone and subsequent phone calls that the

officer        answered      were    constitutionally              permissible,       browsing

through        the    phone's      image    gallery         was    improper.         Id.,    ¶33.

These      cases       demonstrate         that       a     separate    Fourth       Amendment

analysis is required to determine if a lawfully seized item can

be searched without a warrant.

         ¶49    Due to the personal nature of the data contained on a
computer and the weighty privacy concerns inherent in a search

                                                  5
                                                                       No.    2012AP1307-CR.awb


of that data, it is particularly important that a court conduct

a separate analysis to determine if there are reasonable grounds

to justify the search.                   By ignoring precedent and suggesting

that once property is seized it can be searched, the majority

greatly reduces not only the privacy rights of probationers, but

the privacy rights of the millions of people who own cellphones,

computers, and similar electronic devices.

                                               II

    ¶50        Although the majority ultimately conducts an analysis

of whether there were reasonable grounds to search the contents

of the computer, after suggesting one is not necessary, its

analysis       is    unconvincing.          The        majority      concludes          that    the

probation       agent     in      this    case        had    "reasonable           grounds      for

believing       Purtell's         computers       contained         contraband,          such    as

correspondence          with        underage         girls     or    additional           Myspace

accounts."          Majority op., ¶32.           In reaching this conclusion, the

majority fails to take into account the definition of the word

"contraband."
    ¶51        Wisconsin       probation         regulations         permit        a    probation

agent     to     search       a     probationer's            property        "if       there    are

reasonable       grounds       to    believe         that    the    quarters       or    property

contain contraband."              Wis. Admin. Code § DOC 328.21 (Dec. 2006).

"Contraband" is defined as "[a]ny item which the client may not

possess        under    the       rules     or        conditions        of     the       client's

supervision; or . . .               any item whose possession is forbidden by

law."   Wis. Admin. Code § DOC 328.21.



                                                 6
                                                                   No.    2012AP1307-CR.awb


       ¶52     The     majority       lists         the   relevant       conditions         of

Purtell's supervision as follows:

              He could not purchase, possess, nor use a
               computer, software, hardware, nor a modem without
               prior agent approval;

              he was prohibited from maintaining a Myspace.com
               account;

              he was prohibited from having any contact with
               animals; and

              he was prohibited from having any unsupervised
               contact with children.
Majority op., ¶6.             The only item that these conditions prohibit

Purtell from possessing is a computer.

       ¶53     The    majority's       suggestion         that    the    computer      could

contain "correspondence with underage girls" appears related to

Agent   Anderson's           testimony     that       Purtell's    Myspace      page       and

personal       papers        indicated     he       was   attempting       to      start    a

relationship          with     a    fifteen-year-old         girl.          Id.,     ¶¶6-7.

However, this is not contraband.                      Although evidence of contact

with    teenage       girls        could   be       circumstantial       evidence     of     a
probation violation, it is not "an item which the client may not

possess under the rules or conditions of probation" or may not

possess under the law.

       ¶54     The    other        items   the       majority     suggests      could      be

contraband on Purtell's computer are "other Myspace accounts."

Id., ¶32.       This is unpersuasive for two reasons.                      First, as the

circuit       court    noted,      Agent   Anderson       could    check    his     Myspace

activity "separately because she had his password and had done
that on her own without the computers."                      Second, it is far from

                                                7
                                                                No.    2012AP1307-CR.awb


clear that a Myspace.com account is "an item which the client

may not possess under the rules or conditions of probation."

Wis.   Admin.     Code     § DOC     328.21(3)        (emphasis      supplied).        It

appears from the conditions of his probation that Purtell was

prohibited      from     "maintaining       a    Myspace.com        account."        This

condition addresses an action rather than possession of an item.

A   prohibited     action    does     not   fall      within    the    definition      of

contraband.

       ¶55   Accordingly,           the         majority's          assertions        are

disconnected from Purtell's actual conditions of supervision,

and its reliance on actions that are outside the definition of

contraband      cannot     provide    a   legal       basis   for     the   warrantless

search.         Contrary     to     the   majority,       I    conclude       that    the

warrantless      search     of    Purtell's       computer     after    it    had    been

seized    was    unreasonable       because      Agent   Anderson       did   not    have

reasonable grounds to believe that it contained contraband.

                                          III

       ¶56      In sum, I conclude that the warrantless search of
Purtell's computer violated his privacy rights under the Fourth

Amendment of the Constitution.              The majority's analysis suggests

that any item seized can be searched and presents an erroneous

understanding of what constitutes contraband.

       ¶57   Because I disagree with the majority's conclusion that

there were reasonable grounds to believe that Purtell's computer

contained    contraband       and    with       its   assertion     that     the   lawful

seizure of a computer gives license to search its contents, I
respectfully dissent.

                                            8
                                              No.   2012AP1307-CR.awb


    ¶58   I am authorized to state that Chief Justice SHIRLEY S.

ABRAHAMSON joins this dissent.




                                 9
    No.   2012AP1307-CR.awb




1
