from an order of the circuit court for Washington County, No.
2015CF207 JAMES K. MUEHLBAUER, Judge. Reversed.
Neubauer, C.J., Reilly, P.J., and Gundrum, J.
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.
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.
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.
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
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
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.
"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.
Search of Keller's Computer was a Probationary
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, ¶¶4-5.
The facts before us involve both concepts: a law ...