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Justices considering questionable search

Justices considering questionable search

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In brief

Case: State v. Jeremiah Purtell

Attorneys for state: Attorney General J.B. Van Hollen and Assistant Attorney General Sandra Tarver of the Wisconsin Department of Justice

Attorneys for defendant: Ellen Krahn and Eileen Hirsch of the State Public Defenders Office Appellate Division

In a case now before the Wisconsin Supreme Court, the state hopes the justices will find some reason to keep pornographic images on a computer file admissible after a questionable Fourth Amendment search.

The appellate court, in State v. Jeremiah Purtell, 2012 AP 1307, reversed Jeremiah Purtell’s trial court conviction on four counts of child pornography, suggesting his probation officer and law enforcement had gone too far when they seized and reviewed files on Purtell’s personal computer.

Although it was clear the probation officer believed she had enough evidence to seize and search the property, the appellate court said the search of Purtell’s computer was unlawful.

Case history

In 2006, Purtell was convicted in Dane County on two counts of animal mistreatment, one resulting in the death of an animal.

He was serving out his probation in Washington County when he met with probation officer Kristine Anderson on a Friday in April 2007 and complained about his “harsh” computer use restrictions. Part of Purtell’s probationary terms indicated he could not own or possess a computer, but could use a computer at work or during school.

Purtell admitted having a MySpace page and gave Anderson his MySpace password, in addition to describing several computers he had at home. After the weekend, Purtell promised to turn in the computers he had on Monday.

Soon after the Friday meeting, Anderson went online and found Purtell’s MySpace page, where what she saw “concerned” her, including “half-man” and “half-cow” images.

Anderson claims she reviewed Purtell’s probation record, noting that he had missed a mental health appointment and failed to show up to give a DNA specimen. At the suppression hearing, she claimed part of her motivation for the search was to find out whether any images or information she found would be the basis for any additional mental health follow-up.

The weekend passed and Purtell failed to turn in his computers as promised to Anderson.

Allegedly based upon these factors, Anderson had Purtell’s landlord open his apartment where she conducted a warrantless search and toted away “computers, letters, drawings” and various papers.

Anderson examined several files on Purtell’s laptop computer and found images that appeared to be females in sexual situations with animals, as well as files with female names yet content that didn’t match the names, suggesting information may have been deleted.

Anderson contacted local law enforcement and a warrant was issued to search all of Purtell’s computers.

Further examination of the computer files showed Purtell had numerous images of children in pornographic positions. He was arrested on eight counts of child pornography.

The defendant’s motion to suppress failed, and a jury convicted Purtell of four of the eight counts of possession of child pornography.

On appeal

On appeal, Purtell admitted the state had enough evidence to conduct a search and seize his property, but not to inspect the actual computers. The appellate court agreed and reversed.

In its brief to the state Supreme Court, the state slammed the appellate court decision, suggesting the court just did not get it. In particular, the state attacked Purtell’s reliance on State v. Carroll, 2010 WI 8, and State v. Sobczak, 2013 WI 52, claiming those two cases were easily distinguishable because they don’t factor in the special circumstances of probationers.

In State v. Carroll, for example, a fleeing defendant was stopped in his car and his personal cellphone was seized by police. Although law enforcement had the right to examine the phone’s primary screen, the court found a search warrant should have been issued to look at the other stored phone images, which included pictures of drugs, weapons and U.S. currency.

In State v. Sobczak, the state Supreme Court found that permission given by a third party to enter and search Sobczak’s room was not sufficient to allow access to his laptop. A second analysis was required.

Although these cases did create separate Fourth Amendment burdens for both the device and its stored information, according to the state, both defendants in Carroll and Sobczak would have a greater expectation of privacy than a probationer, and so were not on point.

Wisc. Admin. Code Doc. 328.21(3)(a) permits a probation officer to undertake a search of probationer’s residence and personal property without a warrant if there were “reasonable grounds” the residence or property contained “contraband.”

This is necessary in order to address the “special needs of the Wisconsin probation system,” according to the U.S. Supreme Court in Griffin v. Wisconsin, 483 US 868, (1987). These needs include the ability of probation officers to respond quickly to “evidence of misconduct,” and the fact that such searches have a strong deterrent effect on probationers.

Wis. Admin. Code Section DOC 328.16(1) defines contraband as “(a) any item which the client may not possess under the rules or conditions of the client’s supervision, or (b) any item whose possession is forbidden by law.”

If a probationer is not allowed to possess a computer, according to the state, then the computer itself, and any images on that computer, would be contraband. The fact that the appellate court separated the contents of the hard drive from the physical box of the computer does not change the fact that the hard drive was part of the computer and thus contraband.

With that in mind, the state strongly contended that it easily fulfilled its “reasonable basis” burden to examine the computer content.

The seizure and search of Purtell’s computer and files was legal, according to the state, because it was supported by the following facts: 1) Purtell possessing a computer, 2) Purtell using the computer without consent, 3) Purtell admitting he had a MySpace account, 4) the probation officer had seen his MySpace page, 5) Purtell failed to return the computers after the weekend and 6) the disturbing nature of the images on his MySpace page, coupled with Purtell’s failure to attend a counseling session and missed DNA drop.

Purtell responded that the evidence was clear, and the appellate court finding that Anderson’s search was illegal was well supported by the facts, as well as state and federal law.

“Because Purtell had no rules governing the content of his computer,” according to defense counsel’s brief, the only contraband that would support a broader search would have to be something illegal.

The state raised the issue that Purtell was bringing up a new matter on appeal based on an improper “finding of fact” made by the appellate court, not specifically found by the trial court.

The appellate court reversed, according to the state, because the circuit court decided Purtell’s probation terms did not include any limitation on possessing or having images of animal cruelty. The trial court never specifically stated that the probation terms lacked such a term, according to the state, which made the appellate court’s action speculative and fact finding in nature.

Counsel for Purtell responded that the circuit court did not have to spell out every conceivable possible scenario within terms of probation to make a finding. During the suppression hearing, according to Purtell’s brief, Anderson was asked extensive questions about Purtell’s terms of probation, which were clearly explained.

And because the state did not dispute Anderson’s testimony, it was appropriate for circuit and appellate court to rely on her testimony as findings.

“The court is not required,” according to defense counsel’s brief, “to use ‘magic words’ when making findings of facts.”

A ruling from the justices is expected this term.

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