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State v. Keller

Court of Appeals of Wisconsin, District II

February 8, 2017

State of Wisconsin, Plaintiff-Appellant,
v.
Richard L. Keller, Defendant-Respondent.

         APPEAL from an order of the circuit court for Washington County, No. 2015CF207 JAMES K. MUEHLBAUER, Judge. Reversed.

          Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.

          REILLY, P.J.

         ¶1 The State appeals the finding that the search of Richard L. Keller's computer was a police search rather than a probationary search. As the search was administered and executed for probation purposes at the request of and on behalf of the probation agent and as the Division of Criminal Investigation (DCI) analyst was not independently conducting a police investigation or search, we reverse.

         Facts

         ¶2 Keller was on probation in July 2013 for an arson conviction. Given Keller's earlier conviction for possession of child pornography, one of his rules of probation was that "[y]ou shall not purchase, possess, nor use a computer, software, hardware, nor modem without prior agent approval." The rules also precluded Keller from committing an illegal act. On July 25, 2013, Keller's probation agent made a scheduled visit to Keller's Farmington, Wisconsin, home and observed a locked room off the kitchen. Keller told the agent the room was his wife's office where she kept her computer equipment. Keller opened the locked door, and the agent observed computer equipment. At an August 8, 2013 office visit, Keller advised the agent that his Farmington home was going to be listed for sale and that his wife and children were already living in Kewaskum. Keller could not live with his family in Kewaskum due to his sex offender status.

         ¶3 On August 13, 2013, Keller missed a scheduled appointment with his agent. On August 20, 2013, Keller's wife told the agent that she had all of her computer equipment in Kewaskum. The agent made an unscheduled visit to Keller's Farmington home the same day and observed two modems with blinking lights, computers, a tower, a laptop, and a large screen on a wall. Keller told the agent that he did not think the computers worked but that he did use the laptop the previous day. Computer equipment was also discovered in the basement. The agent seized the computers and Keller was placed in custody for violating his rules of probation, namely having a computer without approval.

         ¶4 The agent took the seized computer equipment to her office and secured it. Neither the agent, nor anyone in her office, had the requisite knowledge to search Keller's computer equipment. The agent contacted DCI for assistance and arrangements were made for a DCI forensic analyst to assist the agent in examining the contents of the computer equipment.

         ¶5 The agent took the computer equipment to the DCI analyst on September 5, 2013, and instructed the analyst that she would be present throughout the search and that she would order the search stopped if any illegal image was observed. When the analyst discovered an image that appeared to be child pornography, the agent ordered the analyst to cease the search and returned to her office with all of Keller's computer equipment.

         ¶6 The agent referred the matter to the Washington County Sheriff's Department who obtained a search warrant for Keller's computer equipment, which led to the discovery of images of child pornography. Keller moved to suppress all evidence obtained, arguing the search by the DCI analyst was illegal. The circuit court found the search to be a police search and suppressed all evidence obtained from Keller's computer equipment. The circuit court was not concerned with the seizure of Keller's computer equipment as the court found the computer equipment was clearly contraband, but the court was troubled by the use of the DCI analyst and the lack of direction to the analyst as to the scope of the search. The court also commented that the agent made no attempt to search the computers on her own. The state appeals.

         Standard of Review

         ¶7 "Whether a search is a police or a probation search is a question of constitutional fact which 'requires a conclusion based on an analysis of all the facts surrounding the search.'" State v. Devries, 2012 WI.App. 119, ¶3, 344 Wis.2d 726, 824 N.W.2d 913 (quoting State v. Hajicek, 2001 WI 3, ¶23, 240 Wis.2d 349, 620 N.W.2d 781). A circuit court's findings of historical fact are examined under the clearly erroneous standard while the court's finding of constitutionality is reviewed de novo. Hajicek, 240 Wis.2d 349, ¶15. A probation search is reasonable if a probation officer has "reasonable grounds" to believe that a probationer has contraband. Id., ¶3. A search done by a police officer at the request and behalf of a probation agent is not per se a police search. Devries, 344 Wis.2d 726, ¶7.

         The Search of Keller's Computer was a Probationary Search

         ¶8 The issue in this case runs parallel to those in State v. Purtell,2014 WI 101, 358 Wis.2d 212, 851 N.W.2d 417');">851 N.W.2d 417, and Devries. In Purtell, the issue was whether the warrantless search of the contents of a computer lawfully seized by a probation agent violated the Fourth Amendment. Purtell,358 Wis.2d 212, ¶33. In Devries, the issue was whether the involvement of police in a probationary search violates the Fourth Amendment. Devries,344 Wis.2d 726, ΒΆΒΆ4-5. The facts before us involve both concepts: a law ...


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