State v. Tally Ann Rowan

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Appeal No. 2010AP1398-CR Cir. Ct. No. 2008CF32
WISCONSIN COURT OF APPEALS

DISTRICT Il
STATE OF WISCONSIN,
PLAINITFF-RESPONDENT, FI
V. Jul 28, 2011
TALLY ANN ROWAN, Acting Gerk of
Suprene Court
DEFENDANI-APPELLANT.

CERTIFICATION BY WISCONSIN COURT OF APPEALS

Before Vergeront, P.J., Higginbotham and Blanchard, JJ.

The issue presented by this appeal is whether a sentencing court
violated the Fourth Amendment or WIS. CONST. art. I, § 11, by setting a condition
of extended supervision that allows any law enforcement officer to search the
defendant’s person, vehicle, or residence for firearms, at any time and without
probable cause or reasonable suspicion. While it is clear that a court may impose
conditions of extended supervision that limit a defendant’s Fourth Amendment
nights, the issue presented here is whether it is permissible to impose a condition
that, in essence, eliminates those rights. There are no cases in Wisconsin that
address this issue. Because this is a novel issue of statewide importance that is

No. 2010AP1398-CR
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certain to recur, we hereby certify this appeal to the Wisconsin Supreme Court for
its review and determination, pursuant to WIS. STAT. RULE 809.61 (2009-10).1
BACKGROUND
Tally Ann Rowan was convicted of battery to a police officer.2 The
facts surrounding Rowan’s arrest are relevant to an understanding of why the
circuit court thought it necessary to impose the challenged condition as part of her
extended supervision. The underlying incident occurred after Rowan, who was
intoxicated, crashed her car into a post. A police officer at the scene suspected
that Rowan had been drinking and was concerned that Rowan may have been
injured in the crash, so he called for assistance. When emergency personnel
arrived and approached Rowan’s car, Rowan said: “[G]et the fuck away from
there. Where the fuck is my gun? I’m going to shoot you.” Rowan then began to
reach down, “reaching into an area” in her car. Rowan was pulled from the car
and put in handcuffs. Rowan then told an officer that she was going to find him
and his family, that she would shoot his family, and that she was a member of a
militia.
Rowan was taken to a hospital, where she continued to be very
agitated, grabbing at people, spitting at police and hospital employees, and
threatening the doctor, other medical staff, and their families. A nurse asked an
officer to hold Rowan’s arm so they could give her medication to calm her down.
1 All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise
noted.
2 At the same time, Rowan was also convicted of resisting or obstructing an officer and
carrying a concealed weapon. Those charges are not at issue in this appeal.

No. 2010AP1398-CR
3
As the officer held Rowan’s arm, Rowan grabbed the officer’s thumb, and very
seriously injured the officer’s hand. It was this incident that led to the charge of
battery to a police officer.
Rowan was found guilty after a jury trial. The court sentenced her to
one year and two months of initial confinement and three years of extended
supervision on the battery charge. The court ordered the following as a condition
of extended supervision, and explained its rationale:
No possession of a firearm or ammunition. Consent to
search your person, any premises you occupy or any
vehicles you occupy at any time without probable cause.
The goal is to make sure that you are not in possession of a
firearm. Knowing that you could be searched will be an
additional incentive for you not to have contraband.
Rowan brought a motion for postconviction relief asking the court to
remove this search condition. The court denied the motion but amended the
condition of extended supervision to read: “[T]he defendant’s person or her
residence or her vehicle is subject to search for a firearm at any time by any law
enforcement officer without probable cause or reasonable suspicion.” The court
stated that the evidence had shown that “the scope of persons that she threatened
was quite expansive and shows at least at that point an unusual level of risk to the
public,” and that many of the threats involved firearms. The court noted that
Rowan had threatened another judge, and showed a continuing “pattern of
threatening behavior.”
The court stated that it was imposing the condition so that Rowan
would know that she could be searched for the possession of a firearm at any time,
and that the condition would aid in her rehabilitation and encourage her not to
have a firearm when she returned to the community. The court found that this was

No. 2010AP1398-CR
4
a “special need situation” that justified departure from the normal Fourth
Amendment rules on probable cause and warrant requirements.3 The court said it
imposed the condition of extended supervision because of “the nature of the
underlying offense and the facts specific to this particular case,” and that
“anything we can do to minimize the temptation for her to possess a firearm will
promote community safety … while she is under the supervision of the Court.”
The court limited the condition to searches of Rowan’s own home or vehicle, and
stated that any search conducted as a condition of her extended supervision must
be conducted in a reasonable manner.4
ANALYSIS
The issue presented by this certification is whether a condition of
extended supervision that allows any law enforcement officer to search the
defendant, her home, or her vehicle, for a firearm at any time and without
requiring reasonable suspicion and in the absence of a state statute or regulation
allowing such a search, is permissible under the Fourth Amendment and WIS.
CONST. art. I, § 11.
WISCONSIN STAT. § 973.01(1) allows a court to impose conditions
on a term of extended supervision. “The statute grants a court ‘broad, undefined
discretion’ in imposing conditions of extended supervision, as long as the
3 While the court actually said “Fifth Amendment,” it is clear from the context that the
court was referring to the Fourth Amendment.
4 The court stated in relevant part: “I think the constitution would require the search be
done in a reasonable manner…. To come in and just tear apart a house might be an example of
[a] search which is performed in an unreasonable manner.”

No. 2010AP1398-CR
5
conditions are reasonable and appropriate.” State v. Galvan, 2007 WI App 173,
¶8, 304 Wis. 2d 466, 736 N.W.2d 890 (citations omitted).
Rowan argues that the condition the court placed on her extended
supervision is not reasonable or appropriate.5 She further argues that there must
be some legislative authority to allow any law enforcement officer, as opposed to
the community corrections officer assigned to supervise her, to conduct searches.
The State, on the other hand, argues that the circuit court properly exercised its
discretion and that the condition is permissible under Samson v. California, 547
U.S. 843 (2006). The State also argues that the condition is analogous to the
conditions imposed in other Wisconsin cases.
There are two lines of United States Supreme Court cases relevant to
the analysis of this issue. In Griffin v. Wisconsin, 483 U.S. 868, 872 (1987), the
Court ruled that the warrantless search of a probationer’s residence was reasonable
because it was conducted under a valid State regulation, WIS. ADMIN. CODE HSS
§§ 328.21(4) and 328.16 (1981),6 that was a reasonable response to a “special
need” of the probation system. The Court held that the State’s “special needs” as
5 Rowan also argues that there was insufficient evidence to prove that the police officer
was acting in her official capacity when Rowan injured her. We believe that this issue can be
decided based on well-established precedent.
6 Now WIS. ADMIN. CODE DOC § 328.21 (2006). This provision allows a probation
officer to search a probationer, his or her “body contents,” or his or her “living quarters or
property” under specified conditions. § 328.21(1). A personal search is allowed if the staff
member has “reasonable grounds” to believe that the probationer possesses contraband, “[a]t the
direction of a supervisor,” before a probationer enters or after he or she leaves a secure facility, or
when a probationer is taken into custody. § 328.21(2)(b). Living quarters or property may be
searched “if there are reasonable grounds to believe that the quarters or property contain
contraband or an offender who is deemed to be in violation of supervision.” § 328.21(3).

No. 2010AP1398-CR
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articulated in its probation regulations justified the departure from the warrant and
probable cause requirements. Id. at 876.
In United States v. Knights, 534 U.S. 112, 114 (2001), the Court
considered a condition of probation that allowed a search of the probationer’s
person, property, place of residence, vehicle, and personal effects at any time
without a warrant or reasonable cause by a probation officer or any law
enforcement officer. The Court held that a warrantless search of the probationer’s
apartment, supported by reasonable suspicion and authorized by a condition of
probation, was “reasonable” within the meaning of the Fourth Amendment. Id. at
122. The Court noted that “[j]ust as other punishments for criminal convictions
curtail an offender’s freedom, a court granting probation may impose reasonable
conditions that deprive the offender of some freedoms enjoyed by law-abiding
citizens.” Id. at 119. The Court balanced the probationer’s rights against the
State’s interests and held that “the balance of these considerations requires no
more than reasonable suspicion to conduct a search of this probationer’s house.”
Id. at 121.
In Samson, the United States Supreme Court addressed the
constitutionality of a California law that required every prisoner who was eligible
for parole to agree in writing to be subject to search and seizure by a peace officer
at any time of the day or night without a warrant or without cause. Samson, 547
U.S. at 846. The Court noted that parolees “have fewer expectations of privacy
than probationers, because parole is more akin to imprisonment than probation is”
because parole is “‘an established variation on the imprisonment of convicted
criminals.’” Id. at 850 (citation omitted). “This Court has repeatedly
acknowledged that a State has an ‘overwhelming interest’ in supervising parolees
because ‘parolees … are more likely to commit future criminal offenses.’” Id. at

No. 2010AP1398-CR
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853 (citation omitted). The Court held that “the Fourth Amendment does not
prohibit a police officer from conducting a suspicionless search of a parolee.” Id.
at 857.7
These cases have been described as creating two lines of analysis.
United States v. Freeman, 479 F. 3d 743, 748 (10th Cir. 2007). The Griffin line
of cases use a “special needs” analysis that rests “on the rehabilitative relationship
between the parolee and the parole officer, and thus [does not extend] to other law
enforcement officers unless they are acting under the direction of the parole
officer.” Id. In contrast, the Knights-Samson line of cases rest “on the parolee’s
diminished expectation of privacy stemming from his own parole agreement and
the state regulations applicable to his case.” Id.
At first glance, it would appear that Samson answers the question
presented and the condition is constitutional, at least under the federal constitution.
Some cases interpreting Samson, however, have limited its application to
conditions that are controlled by state law. See, e.g., Freeman, 479 F. 3d at 748;
United States v. Kone, 591 F. Supp. 2d 593, 603 (S.D.N.Y. 2008) (Samson “has
little to no bearing on whether a warrantless search not authorized by statute,
regulation or condition of supervision is permissible”); State v. Bennett, 200 P.3d
455 (Kan. 2009) (Samson limited to suspicionless searches deemed permissible by
state statute). Some courts have applied Samson to allow warrantless,
suspicionless searches of parolees if the language of the parole agreement
specifically allows for it. See, e.g., United States v. Smith, 526 F.3d 306, 310-11
7 Rowan was placed on extended supervision, yet “[u]nder Truth-in-Sentencing,
extended supervision and reconfinement are, in effect, substitutes for the parole system that
existed under prior law.” State v. Brown, 2006 WI 131, ¶44, 298 Wis. 2d 37, 725 N.W.2d 262.

No. 2010AP1398-CR
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(6th Cir. 2008). And at least one state has held that Samson violated the state
constitution, whose search and seizure provision is identical to WIS. CONST. art. I,
§ 11. See State v. Ochoa, 792 N.W.2d 260, 291 (Iowa 2010).8
When creating the condition at issue here, the circuit court applied
the Griffin approach and found that this was a “special needs” situation. Given
that the condition allows searches by “any law enforcement officer,” we are not
convinced that the “special needs” analysis applies. See, e.g., Freeman, 479 F. 3d
at 748 (this was not a “special needs” case because the search was not conducted
by a community corrections officer). In addition, it is open to question whether
Knights applies in this case, because the condition does not require reasonable
suspicion.
There is no case in Wisconsin that directly addresses this situation.
The State argues that there are Wisconsin cases that establish by analogy that the
condition was permissible. See, e.g., State v. Oakley, 2001 WI 103, ¶1, 245
Wis. 2d 447, 629 N.W.2d 200 (court properly exercised its discretion when it
imposed a condition of probation prohibiting a father of nine who had
8 The Iowa court held:
We conclude that a parolee may not be subjected to broad,
warrantless searches by a general law enforcement officer
without any particularized suspicion or limitations to the scope
of the search. The power asserted by the State in this case too
closely resembles authority pursuant to a general warrant,
provides no meaningful mechanism to control arbitrary searches,
avoids the warrant preference rule that this court has traditionally
recognized, utilizes a balancing test that improperly weighs the
interests involved, and does not adequately recognize the
security and sanctity interests of parolees in their home.
State v. Ochoa, 792 N.W.2d 260, 291 (Iowa 2010).

No. 2010AP1398-CR
9
intentionally refused to pay child support from having another child until he could
show that he could support that child and his current children); and Krebs v.
Schwarz, 212 Wis. 2d 127, 128-29, 568 N.W.2d 26 (Ct. App. 1997) (finding
constitutional a condition of probation prohibiting probationer, who had been
convicted of first-degree sexual assault of his daughter, from entering into an
intimate or sexual relationship with any person without first receiving approval
from his agent).
However, these cases do not answer the question here because the
condition imposed on Rowan is of a different nature than those in the cases cited:
it continues for the entire period of her extended supervision, it can be enforced at
any place, at any time of the day or night, and there is nothing she can do to
remove the condition. While it is clear that limitations are allowed on a parolee or
probationer’s Fourth Amendment rights, the condition imposed here essentially
eliminated Rowan’s Fourth Amendment rights, by allowing searches by any law
enforcement officer, at any time, at any place, for a small handgun, without need
for even reasonable suspicion. Whether this is permissible is an open question of
statewide importance and certain to recur.

No. 2010AP1398-CR
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