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    A condition of extended supervision would let police search the convicted defendant, her residence or vehicle, for firearms anytime without probable cause or without reasonable suspicion.

    Joe Forward

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    Supreme court could decide Fourth Amendment 
issue relating to firearm searches July 29, 2011 – The Wisconsin Supreme Court could decide whether a sentencing court can eliminate a person’s Fourth Amendment rights when it comes to searching for firearms during a period of extended supervision.

    Yesterday, the District III Wisconsin Court of Appeals certified State v. Rowan to review a sentencing court order allowing extended supervision on condition that Tally Ann Rowan allow law enforcement to search her, her vehicle, or her residence any time without probable cause or reasonable suspicion.

    “There are no cases in Wisconsin that address this issue,” the appeals court noted. “Because this is a novel issue of statewide importance that is certain to recur, we hereby certify this appeal. …”

    Rowan was convicted of carrying a concealed weapon, obstructing an officer and battery of an officer. This happened after Rowan, intoxicated, crashed her car into roadside post.

    When emergency personnel arrived and approached Rowan’s car, Rowan asked where the f*** her gun was and said “I’m going to shoot you” before reaching around in her car. A police officer pulled her from the car before she threatened violence on him and his family. While at the hospital, Rowan seriously injured a police officer’s thumb, which led to the battery charge.

    Convicted, the sentencing court ordered a year and two months confinement and three years extended supervision, on condition that her “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.”

    In requiring that condition, the sentencing court noted Rowan’s threats, her continuing pattern of threatening behavior, and the unusual level of risk she posed to the public. Such a condition, the court noted, would discourage Rowan from possessing firearms in the future.

    As the appeals court explained, the sentencing court “found that this was a ‘special need situation’ that justified departure from the normal Fourth Amendment rules on probable cause and warrant requirements.”

    Rowan argues that the condition is unlawful absent legislative authority. The State argues the condition is allowed under Samson v. California, 547 U.S. 843 (2006). In that case, the U.S Supreme Court upheld a California law requiring every parolee to subject themselves to search and seizure, at any time by any police officer, without warrant or cause.

    “At first glance, it would appear that Samson answers the question presented and the condition is constitutional, at least under the federal constitution,” the appeals court explained. “Some cases interpreting Samson, however, have limited its application to conditions that are controlled by state law.”

    The appeals court also noted Griffin v. Wisconsin, 483 U.S. (1987), a case in which the U.S. Supreme Court upheld the warrantless search of a probationer’s residence by a probation officer, pursuant to state regulation, because of the “special needs” identified in the regulations.

    “When creating the condition at issue here, the circuit court applied the Griffin approach and found that this was a ‘special needs’ situation,” the appeals court explained. “Given that the condition allows searches by ‘any law enforcement officer,’ we are not convinced that the ‘special needs’ analysis applies.”

    By Joe Forward, Legal Writer, State Bar of Wisconsin