Wednesday, March 01, 2017

“Knowingly Seeking Out and Viewing Child Pornography” and “Possession”

This post examines a recent opinion from the Supreme Court of Colorado: Marsh v. People, 2017 WL 481608 (2017).  The court began the opinion by explaining that a
jury convicted petitioner Anthony Edwin Marsh of sexually assaulting three of his granddaughters and possessing more than twenty images depicting child pornography. Marsh appealed, and the court of appeals affirmed his conviction. Marsh v. People, ––– P.3d ––––, No. 08CA1884, 2011 WL 6425492 (Colorado Court of Appeals Dec. 22, 2011). We granted certiorari to consider whether the presence of temporary internet cache files stored on a person's hard drive can constitute evidence of `knowing possession’ as used in Colorado's child pornography statute, section 18–6–403, Colorado Revised Statutes (2016).
Marsh v. People, supra.
The opinion goes on to summarize the facts that led to Marsh’s conviction:
Marsh allegedly sexually assaulted three of his granddaughters, C.S., E.M., and S.O., between 2005 and 2007. The children ranged in age from four to seven years old at the time of the alleged assaults. Two forensic interviewers from Blue Sky Bridge Advocacy Center (`Blue Sky’) interviewed each of the three granddaughters, as well as a fourth granddaughter, A.S., who was fifteen years old at the time of the trial in 2008.  The two interviewers and four granddaughters all testified at trial, and the jury watched a video recording of each forensic interview. During those interviews, the children's accounts of the alleged assaults varied from their testimony at trial in certain respects, including when and how many times the assault happened and what the assault entailed. The children also gave some conflicting information during their interviews. Each granddaughter consistently testified, however, that Marsh touched her `between the legs,’ sometimes while viewing pornography on a desktop computer that he had in his basement.

The four granddaughters also testified that they, Marsh, and one of Marsh's daughters all used the computer. The children testified that the computer had pornographic images on it, some involving adults and some involving children. They said that they accessed the computer when Marsh was not present and located pornographic images that he had saved on it. They also claimed to have found child pornography websites on Marsh's internet `Favorites’ toolbar. During her forensic interview, A.S. stated that she attempted to delete some of the pornographic images that she found.
Marsh v. People, supra.
The opinion goes on to explain how the forensic interviewers’ testimony was presented at trial:
[T]he forensic interviewers testified about their backgrounds and training and about the goals and methods of conducting forensic interviews. Jennifer Martin, who interviewed A.S. and E.M., testified that she had attended sixteen trainings on forensic interviews and had interviewed approximately 2,000 children. She also explained the difference between forensic interviews and regular interviews. Martin stated that her initial goal in conducting forensic interviews is to make children feel comfortable talking about `things that may have happened to them’; if something has happened, then the goal becomes to obtain detailed information. In particular, Martin said that she conducts forensic interviews of child sex assault victims according to national guidelines that entail starting the interview with broad or open-ended questions and gradually getting more specific. She also noted that this approach entails avoiding leading questions entirely.

The second interviewer, Michelle Peterson, interviewed C.S. and S.O. She testified that she conducted nine to ten forensic interviews per week and that she had been employed with Blue Sky for nine years. Like Martin, Peterson also explained the difference between forensic interviews and other types of interviews. She testified that police or social workers first conduct a short interview and then bring in a forensic interviewer if they believe it is possible that a crime occurred.

Marsh objected to both interviewers' testimony on the grounds that it was expert testimony. The trial court overruled the objections, finding that the interviewers provided no expert opinions and that their testimony provided `background information as to [interviewing] techniques.’
Marsh v. People, supra.
The opinion then explains that a
computer forensic expert also testified at trial about Marsh's possession of child pornography. The expert testified that he examined Marsh's computer and recovered a series of pornographic images depicting children. The series of images included one image from the `My Pictures’ folder, seven deleted files, thirty-eight thumbnail database files (i.e., files that contain smaller versions of image files that have been previously opened on the computer), and seventeen internet cache files. The image from the My Pictures folder and the seven deleted images were attributable to the relevant time period between January 1, 2007, and May 16, 2007. The thirty-eight original files that corresponded to the images depicted in the thumbnail database files had been deleted from the hard drive prior to the examination of Marsh's computer, and the expert could not determine when the original files had been opened or deleted.

As for the seventeen internet cache files, evidence at trial established that an internet cache is a temporary file that contains images automatically stored on the computer's hard drive after a computer user views them on a website. If the website is accessed at a later time, the computer recalls the images from the cache rather than downloading them from the internet again, which allows the website to load more quickly. The expert testified that computer users typically do not know that images they view on websites are being saved to their computer's hard drive. Three of the cache images were identical to three of the deleted images.
Marsh v. People, supra.
The court then explains that the jury found Marsh
guilty of three counts of sexual assault on a child, three counts of sexual assault on a child—position of trust, and two counts of sexual assault on a child—pattern of abuse. §§ 18-3-405(1), (2)(d); 18–3–405.3(1), (2)(a), Colorado Revised Statutes (2016). The jury also found Marsh guilty of sexual exploitation of children (possessing material) (possessing more than twenty sexually exploitative items), and inducement of child prostitution. §§ 18–6–403(3)(b.5), (5)(b)(II)18–7–405.5, Colorado Revised Statutes (2016).
Marsh v. People, supra.
The Supreme Court then took up the arguments Marsh made in his appeal to that court, noting, initially, that Marsh
raised several issues in the court of appeals; we address the two arguments that pertain to the issues on which we granted certiorari. First, he argued that the evidence was not sufficient to establish that he knowingly possessed more than twenty images depicting child pornography. Second, he argued that the trial court erred in permitting the forensic interviewers to offer expert testimony in the guise of lay opinion. The court of appeals affirmed his convictions in a unanimous, published opinion. Marsh, 2011 WL 6425492, at *1.
Marsh v. People, supra.
The Supreme Court then explained what the Court of Appeals did in the opinion cited at the end of the paragraph above. Marsh v. People, supra. It began with Marsh’s argument that the evidence was not sufficient to prove beyond a reasonable doubt that he knowingly possessed more than twenty images of child pornography. Marsh v. People, supra. The court went on to explain that
[a]s to the first issue, the court of appeals held that sufficient evidence supported Marsh's conviction for knowing possession of child pornography. Id. at *3. The court held that `for purposes of section 18–6–403, “possession” means the non-exclusive control or dominion over sexually exploitative material, and the statute requires that any such control or dominion be carried out knowingly.’ Id. at *4. Reasoning that `[w]hen [an] image is viewed, the user possesses and controls it in the sense that he or she has the ability to enlarge, save, copy, forward, or print the image,’ the court of appeals held that internet cache images `can constitute evidence of a prior act of possession.’ Id. at *5. Because Marsh did not contest that he possessed the seven deleted images or the single image in the My Pictures file, the court of appeals held that the combination of those eight images and the seventeen internet cache images was sufficient to prove possession of more than twenty images. Id. at *6. 

The court then concluded that those images—combined with the facts that (1) Marsh owned the computer and exercised control over the computer and its environs, (2) Marsh's granddaughters testified that he viewed sexually exploitative material on his computer, (3) the forensic computer expert also recovered the sexually exploitative thumbnail database images from Marsh's computer, and (4) three of the cache images were identical to three deleted images—were sufficient for the jury to infer that Marsh knowingly viewed and possessed over twenty sexually exploitative images. Id.
Marsh v. People, supra (emphasis in the original).
The opinion then explains that as to the second issue,
the court of appeals addressed the forensic interviewers' testimony about their qualifications and protocols. Relying on People v. Tillery, 231 P.3d 36 (Colo. App. 2009), aff'd on other grounds sub nom. People v. Simon, 266 P.3d 1099 (Colo. 2011), it held that the trial court did not abuse its discretion in admitting the forensic interviewers' testimony because it was proper lay witness testimony within the scope of Colorado Rule of Evidence (“CRE”) 701. Marsh, 2011 WL 6425492, at *18. The court of appeals noted that the interviewers testified about their qualifications, experience, training, protocols, and techniques, and `provided some basic information about interviewing children concerning possible sexual abuse.’ Id. The court held that this fell within the scope of lay opinion testimonyId.
Marsh v. People, supra.
The Supreme Court also noted that
Marsh petitioned for review on these two issues, and we granted certiorari. We now affirm the court of appeals.
Marsh v. People, supra.
The Supreme Court then began its analysis of the first issue, explaining that
[f]irst, we consider whether the evidence in this case was sufficient to support Marsh's conviction for possession of more than twenty sexually exploitative images under section 18–6–403(5)(b)(II). In essence, Marsh asserts that he did not possess the images that appeared on his screen during online viewing because he did not download or save them. Additionally, he contends that because he did not know that the images in the cache were on his hard drive, he could not have knowingly possessed them. We therefore examine the meaning of the term `possession’ as used in the child pornography statute and consider whether internet cache images can constitute evidence that a defendant knowingly possessed those images. Second, we consider Marsh's complaint that the forensic interviewers were allowed to testify as experts without being properly endorsed. To do so, we address the preliminary question of whether admission of this testimony harmed Marsh.
Marsh v. People, supra.
The court went on to explain that,
[f]irst, we hold that when a computer user seeks out and views child pornography on the internet, he possesses the images he views. Since the evidence presented at trial established that Marsh's cache contained images that a computer user had previously viewed on the web browser, we conclude that the internet cache images qualified as relevant evidence that Marsh had previously viewed, and thus possessed, those images. Therefore, when considered as a whole and in the light most favorable to the People, the evidence was sufficient to support the jury's conclusion that Marsh possessed more than twenty images depicting child pornography. Second, we hold that even if the trial court improperly admitted the forensic interviewers' testimony as lay opinion, the error was harmless.
Marsh v. People, supra.
The Supreme Court then took up the issue of “knowing possession of Internet cache images”.
Marsh v. People, supra.  It noted that Marsh argued that the evidence was insufficient to
support his conviction for possession of more than twenty images depicting child pornography under section 18–6–403(5)(b)(II) because the People could prove neither that he was aware of the images in his computer's internet cache nor that he had exercised dominion or control over those images. Therefore, he argues, the People's evidence was insufficient to prove that he knowingly possessed more than twenty sexually exploitative images. Essentially, Marsh interprets the statute's `possession or control’ language to encompass acts like downloading images to a hard drive but not to merely viewing them online.

We have not yet addressed how Colorado's child pornography statute applies to images viewed only online. Thus, we first analyze the term `possession’ as it is used in section 18–6–403. We then examine the evidentiary significance of the images in the internet cache. Finally, we consider whether the evidence in this case was sufficient for the jury to find Marsh guilty of knowingly possessing more than twenty sexually exploitative images.
Marsh v. People, supra.
The Supreme Court went on to explain that
Marsh was convicted of sexual exploitation of a child by knowingly possessing more than twenty sexually exploitative images under sections 18–6–403(3)(b.5) and 18–6–403(5)(b)(II). Section 18–6–403(3)(b.5) provides that `[a] person commits sexual exploitation of a child if ... he or she knowingly ... [p]ossesses or controls any sexually exploitative material for any purpose.’ While possession of sexually exploitative material is normally a class 5 felony, section 18–6–403(5)(b)(II) increases it to a class 4 felony when the offender possesses `more than twenty different items qualifying as sexually exploitative material.’

Here, we must decide whether viewing child pornography without any evidence of affirmative action to save or download an image and without knowledge of the computer's automatic caching function constitutes possessing or controlling that image within the meaning of section 18–6–403(3). Because the statute criminalizes possession or control of child pornography, we assume that the General Assembly intended those words to have two distinct meanings. See Robinson v. Colo. State Lottery Div., 179 P.3d 998, 1010 (Colo. 2008). But because the common meaning of possession often includes the term `control,’ and because possession has a number of definitions, the statute's plain language is unclear.

The General Assembly did not define the term `possession’ in the child pornography statute, nor has this court ever determined its meaning as used in this statute. To the extent we have considered the meaning of `possession’ elsewhere, we have done so in the context of tangible items. See, e.g., Patton v. People, 35 P.3d 124, 131 (Colo. 2001) (concluding that possession of an illegal drug requires immediate and knowing control); People v. Garcia, 197 Colo. 550, 595 P.2d 228, 231 (1979) (concluding that possession of a firearm means actual or physical control). The concept of possession in the context of the internet, on the other hand, is unsettled because of evolving technology and the reality that computer users are often unaware of a computer's various unseen functions. Cf. ClearCorrect Operating, LLC v. Int'l Trade Comm'n, 819 F.3d 1334, 1339 (Fed. Cir. 2016) (`[S]tatutory law should be adapted to its legislative purpose, in the context of advances in technology.’). As relevant here, evidence at Marsh's trial established that after a computer user views images online the cache function automatically stores those images on the computer's hard drive in order to enhance the computer's performance in the event that the user revisits the same page. This function is enabled without any action by the computer user.
Marsh v. People, supra.
The opinion goes on to point out that
analyzing the plain language of section 18–6–403(3) does not resolve the meaning of possession in the context of online child pornography, we look elsewhere to determine its definition. Relevant factors include the problem that the legislation is meant to address, the consequences of a particular construction of the legislation, and the legislative declaration or purpose. See § 2–4–203(1), Colorado Revised Statutes (2016); Rowe v. People, 856 P.2d 486, 489 (Colorado Supreme Court 1993). Here, the General Assembly's legislative declaration is telling. In it, the General Assembly asserts that to protect children from sexual exploitation, `it is necessary to prohibit the production of material which involves or is derived from such exploitation and to exclude all such material from the channels of trade and commerce.’ § 18–6–403(1). It further provides that both possessing and viewing such material is harmful to children, declaring:

`that the mere possession or control of any sexually exploitative material results in continuing victimization of our children by the fact that such material is a permanent record of an act ... of sexual abuse of a child; that each time such material is shown or viewed, the child is harmed; ... that laws banning the production and distribution of such material are insufficient to halt this abuse; that in order to stop the sexual exploitation and abuse of our children, it is necessary for the state to ban the possession of any sexually exploitative materials.
§ 18–6–403(1.5) (emphasis added). This declaration emphasizes that the harm in possessing child pornography recurs every time someone views it. As such, we conclude that the statute criminalizes knowingly viewing online child pornography.

This approach finds support in other jurisdictions. For example, in United States v. Ramos, 685 F.3d 120, 131–32 (2d Cir. 2012), the Second Circuit Court of Appeals explained that `[e]ven without saving them,’ a computer user possesses illegal pornographic images because online viewing provides for control over the images:

`[H]e could view them on the screen, he could leave them on his screen for as long as he kept his computer on, he could copy them to an email and send them to someone, he could print them, and he could . . . move the images from a cached file to other files and then view or manipulate them off-line.’

See also New v. State, 327 Ga.App. 87, 755 S.E.2d 568, 575 (2014) (holding that a computer user looking at child pornography on a website `gains actual control over the images, just as a person who intentionally browses child pornography in a print magazine ‘knowingly possesses' those images, even if he later puts the magazine down’). In Ramos, there was evidence that the defendant had visited child pornography websites, viewed images of child pornography, and attempted to delete his browsing history. 685 F.3d at 125. The court held that the evidence was sufficient to prove that the defendant was guilty of knowingly receiving and possessing child pornography. Id. at 134.
Marsh v. People, supra.
The court then began the process of articulating its holding – its decision – on this issue:
Marsh asks us instead to limit the definition of possession to include only those instances where the defendant has saved images onto a computer or tangible drive. Cf. United States v. Romm, 455 F.3d 990, 1000 (9th Cir.2006) (holding that the defendant must know that internet cache images are stored on a hard drive in his possession to possess those images); United States v. Tucker, 305 F.3d 1193, 1203–04 (10th Cir. 2002) (holding that the defendant possessed images in an internet cache because he knew that his internet browser automatically stored the images that he viewed online). While proponents of this approach acknowledge that viewing child pornography online without downloading images exploits children, they conclude that a statutory prohibition against “possession” cannot encompass mere online viewing. See Commonwealth v. Diodoro, 932 A.2d 172, 176 (Pa. Super. 2007) (Klein, J., dissenting) (arguing that viewing is not possessing, and stating that `[i]f the legislature fails to keep up with modern technology, it is not our responsibility to correct its oversight’).

We reject this limitation. To hold that viewing child pornography online does not constitute possession would ignore today's technological realities and the purpose of the statute. When section 18–6–403(3)(b.5) was added to Colorado's child pornography statute in 1988, access to the internet was not yet ubiquitous. Prior to widespread use of the internet, child pornography generally came in the form of tangible objects such as books, periodicals, or videotapes. As a general rule, a person who viewed child pornography could not do so without physically possessing it.
Marsh v. People, supra.
The court then wound up its analysis of this issue by noting that,
[t]oday, computer users can access child pornography simply by navigating to a website. Seeking out and accessing the images online harms children, even where the seeker does not manipulate or save the image, because navigation to and within child pornography websites promotes the exploitation of children. As the court of appeals reasoned, a computer user viewing an image online `has the ability to enlarge, save, copy, forward, or print the image. The user can also show the image on the screen to others.’ Marsh, 2011 WL 6425492, at *5. Thus, we conclude that for purposes of section 18–6–403(3), knowingly seeking out and viewing child pornography on the internet constitutes knowingly possessing or controlling it under the statute. Having made this determination, we now consider whether internet cache images can be evidence of knowing possession.
Marsh v. People, supra.
It also noted that
Marsh argues that the internet cache images do not constitute evidence that he knowingly possessed the images. Because we hold that viewing images online amounts to possession, and because a cache image is automatically downloaded when an image is viewed online, we reject Marsh's argument and conclude that cache images can constitute evidence that the defendant knowingly possessed the images when he viewed them online. It is for the fact-finder to determine the weight to give cache images in light of all the other evidence in any given case.
Marsh v. People, supra.
And, finally, it pointed out that
images contained in the internet cache may constitute evidence of possession, and therefore, the fact-finder may consider those images in reaching its ultimate conclusion. A number of other jurisdictions have adopted this approach. See, e.g., United States v. Kain, 589 F.3d 945, 948–50 (8th Cir. 2009) (holding that the presence of child pornography in temporary internet files is evidence of prior possession). . . . To determine if a defendant accessed the images stored in an internet cache and did so knowingly, the fact-finder must consider the cache images in light of all other evidence.
Marsh v. People, supra.
After some other comments, the Supreme Court articulated its holding in this case:
[f]irst, we hold that when a computer user seeks out and views child pornography on the internet, he possesses the images he views. Since the evidence presented at trial established that Marsh's cache contained images that a computer user had previously viewed on the web browser, we conclude that the internet cache images qualified as relevant evidence that Marsh had previously viewed, and thus possessed, those images. Therefore, when considered as a whole and in the light most favorable to the People, the evidence was sufficient to support the jury's conclusion that Marsh possessed more than twenty images depicting child pornography. Second, we hold that even if the trial court improperly admitted the forensic interviewers' testimony as lay opinion, the error was harmless. Therefore, we affirm the court of appeals' judgment in its entirety.
Marsh v. People, supra.


Friday, February 24, 2017

The Probationer, the Computer Equipment and the Search

This post examines a recent opinion from the Court of Appeals of Wisconsin: State v. Keller, 2017 WL 536058 (2016). The court begins by explaining how the case arose and what issues were involved in the appeal:
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 equipment.

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.

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.
State v. Keller, supra.
The Court of Appeals prefaced its analysis of the legal issues in this case with an explanation of the “standard of review” it would apply to what happened here:
 `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.
State v. Keller, supra.
The court then began its analysis, explaining that 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, 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 enforcement analyst assisting a probation agent in the warrantless search of the contents of a computer lawfully seized by a probation agent.
State v. Keller, supra (emphasis in the original).
The Court of Appeals went on to explain that
[t]here is no dispute that Keller's computers were contraband and were lawfully seized without a warrant. The court stated that while the agent had valid suspicions that child pornography was on Keller's computer, the agent was on a `fishing expedition’:

`I am not aware of any case anywhere in the entire United States where this fact scenario has occurred where an agent has basically made no attempt to search the computer herself, and has said, let's call up the criminal investigative unit and have their people do a forensic examination of a computer specifically looking for child porn, when that specific type of analysis is not directly relevant to the issue of whether the computer is being used or not. That's the rule violation: did he use it or didn't he. Of course he admitted he used it.’

We disagree with the circuit court's premise that the only relevant issue was whether Keller `used’ a computer. Given the nature of probation, a probation agent has a duty to determine whether a probationer is complying with the terms of his probation. See State v. Griffin, 131 Wis. 2d 41, 55, 388 N.W.2d 535 (1986). Probation, by its very nature, `places limitations on the liberty and privacy rights of probationers,’ and these limitations provide an exception to the warrant requirement for searches of a probationer's home and property by a probation agent. Id. at 45-46. What is an unreasonable search for a probationer differs from what is unreasonable for a law-abiding citizen. Purtell, 358 Wis. 2d 212, ¶22. If a probation agent has `reasonable grounds’ to believe that a probationer has contraband, the agent may conduct a warrantless search. Id., ¶26. Contraband is any item whose possession is forbidden by law. Id., ¶51.

In Purtell, Purtell pled guilty to two felony counts of mistreating animals in 2006 and was placed on probation. Id., ¶¶4-5. Given that police had discovered sexually inappropriate images on Purtell's computer during their investigation, Purtell had a probation rule that he `not purchase, possess, nor use a computer, software, hardware, nor a modem without prior agent approval.’ Id., ¶¶4, 6. Purtell's probation agent was informed in April 2007 that Purtell had possession of computers. Id., ¶¶11-12. The agent performed a warrantless search of Purtell's home, resulting in the seizure of computer equipment. Id.
State v. Keller, supra.
The opinion goes on to explain that the
agent brought Purtell's computer back to her office and searched it without a warrant. Id., ¶14. The agent observed images of underage females engaged in sexual activity. Id. The agent notified law enforcement who obtained search warrants that resulted in eight criminal charges of possession of child pornography. Id. Purtell moved to suppress the evidence seized from his computers, arguing that while there were `reasonable grounds’ to seize his computer as it was “contraband,” the agent's warrantless search of the contents of his computer constituted an independent governmental search that violated his Fourth Amendment privacy interests. Id., ¶¶15, 27.

Our supreme court concluded that the search of the contents of Purtell's computer was permissible as the agent had reasonable grounds to believe the computers contained contraband. Id., ¶20. The court concluded 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. A critical fact was that the computer itself was contraband. `[W]hen 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.’ Id., ¶30. The court found that Purtell's agent was justified in ascertaining the `extent’ of Purtell's probation violation by ascertaining whether Purtell had not only possessed the computer, but also used the computer, and if so, the degree of his use. Id., ¶32
State v. Keller, supra.
The Court of Appeals went on to explain that
Purtell tells us that as long as there are `reasonable grounds’ to believe a probationer has contraband, a probation agent will almost always have the right to search the contraband itself without a warrant. The special need for ensuring that probationers are rehabilitated and that the public is protected creates an exception to the warrant or probable cause requirement for reasonable searches. Hajicek, 240 Wis. 2d 349, ¶36. While ordinary citizens have a legitimate expectation of privacy in the contents of their electronic devices, that expectation is `undercut’ when the electronic device is contraband. Purtell, 358 Wis. 2d 212, ¶28; see also United States v. Skinner, 690 F.3d 772, 785 (U.S. Court of Appeals for the 6th Circuit 2012) (noting 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’).

When a condition of probation prohibits the possession of an item, and the probationer knowingly breaks that condition, `in most situations’ a probation agent would `presumably’ have “reasonable grounds” to search the contents of the item. Purtell, 358 Wis. 2d 212, ¶30. Moreover, given Keller's possession and admitted use of a computer at the house in violation of the probationary rules, his prior conviction for possession of child pornography provided reasonable grounds to search the contents for further illegal use of the computer in violation of the rules.
State v. Keller, supra.
The court goes on to explain that in
Devries, we addressed whether a probation agent who requested police assistance in performing a search transformed the probationary search into an illegal police search. Devries, 344 Wis. 2d 726, ¶4. The facts of Devries are straightforward. Devries met with her probation agent who detected an odor of intoxicants emanating from Devries. Id., ¶2. The agent requested a law enforcement officer to administer a preliminary breath test (PBT) to Devries. Id. A police officer performed a PBT, which revealed a blood alcohol concentration (BAC) of .128. Id. The agent placed Devries in custody and told the police officer that Devries had driven to her office. Id. The officer performed further investigation which resulted in Devries' arrest for sixth offense operating a motor vehicle while intoxicated. Id. Devries brought a motion to suppress on the grounds that a police search occurred and therefore the PBT and all evidence flowing from it should be suppressed. Id., ¶1. The circuit court denied the motion. Id.
State v. Keller, supra.
The court then explained that
[w]e affirmed as Devries' probation agent initiated the search and the police officer's only purpose for his initial involvement was to assist the agent in conducting the probation investigation. Id., ¶5. We found, based upon the historical facts in the record, that the PBT was administered for no independent police purpose but instead was a limited search executed at the request and on behalf of the probation agent for probation purposes. Id., ¶7.
State v. Keller, supra.
The Court of Appeals then articulated its holding in this case, i.e., its decision:
Applying Purtell and Devries to our facts leads us to conclude that the search of Keller's computer was a probationary search. As noted in Purtell, an agent has the authority to examine not only whether a probationer has contraband but also has the right to determine the “extent” of the violation. Purtell, 358 Wis. 2d 212, ¶32. Keller's probation agent lawfully seized contraband from Keller but did not have the ability to examine the contents of the contraband. The agent requested the assistance of an analyst at DCI, independent from any law enforcement investigation, so as to examine the contents of Keller's computer. Just as the agent in Devries did not have the ability to administer the test to determine Devries' BAC, the agent here did not have the ability to forensically examine the extent of Keller's use of the computer. Based upon the rationale set forth in Purtell and Devries, we respectfully disagree with the circuit court's conclusion that the search was a police search.

Conclusion
Given the historical facts, we conclude that a warrant was not required for the probation agent to search the contents of Keller's computer utilizing the assistance of an analyst from DCI. The order suppressing the evidence is reversed.
State v. Keller, supra.