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    Supreme Court Affirms Search Without Probable Cause of Felon Under Extended Supervision

    Deborah Spanic

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    Supreme Court Affirms Search Without Probable 
Cause of Felon Under Extended Supervision June 11, 2012 – A circuit court’s decision to allow for the search of a defendant’s person, vehicle, or residence for firearms, at any time and without probable cause or suspicion, was upheld by the Wisconsin Supreme Court in State v. Tally Ann Rowan, 2012 WI 60 (June 8, 2012).

    Tally Ann Rowan was convicted of battery of a police officer, in addition to a number of other charges, resulting from an incident occurring on March 13, 2008. Rowan was sentenced to one year and two months initial confinement and three years extended supervision.

    One of the conditions of extended supervision imposed by the court was that “[Rowan’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.” Rowan appeals this condition as violating her rights under the Fourth Amendment of the U.S. Constitution and Wisconsin Constitution article 1, section 11.


    On March 13, 2008, an officer observed Rowan driving erratically, running a stop sign, and then crashing into a pole. Rowan appeared intoxicated and extremely agitated.

    On the scene, Rowan was witnessed cursing emergency responders, asking where her gun was while reaching toward the floor of the car. Police later discovered a semiautomatic handgun and ammunition on the floor of the driver’s side of the car.

    Rowan was taken to the hospital for treatment and was placed under arrest. At the hospital, Rowan was combative, and threatened to kill the officers and medical staff in the emergency room, as well as kill their families. When an officer sought to restrain her, she resisted and then seriously injured the officer’s hand.

    At trial, the circuit court noted the nature of Rowan’s crime, involving threats, violence, and a firearm, stating, “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.” There was also testimony from a gun shop owner that Rowan purchased several guns after the March 13, 2008, incident and before she was charged.

    The circuit court judge in his decision added, “I think just having her know at any time she could be searched for the possession of a firearm, and … it could result in her return to confinement will aid in the rehabilitation goal. … It is because of the nature of the underlying offense and the facts specific to this particular case.”

    The Court’s Analysis

    In the decision written by Justice N. Patrick Crooks, the Wisconsin Supreme Court noted that the issue is the constitutionality of an individualized supervision condition that applies only to Rowan and was imposed by a circuit court after determining it was necessary based on the facts of this case, involving violence, threats, and a firearm.

    “Conditions of probation may impinge upon constitutional rights as long as they (1) are not overly broad and (2) are reasonably related to the person’s rehabilitation,” Justice Crooks noted, continuing, “A condition is reasonably related to the person’s rehabilitation ‘if it assists the convicted individual in conforming his or her conduct to the law.’”

    The court found that the fact the condition authorizes searches by any law enforcement officer without probable cause or suspicion for the duration of Rowan’s extended supervision does not make the condition overly broad. The U.S. Supreme Court, in Samson v. California, 547 U.S. 843 (2006), held that people on parole have severely diminished expectations of privacy by virtue of their status alone and that the State’s interest in reducing recidivism among parolees warrants privacy intrusions that would not otherwise be tolerated under the Fourth Amendment.

    Justice Crooks noted that “Rowan’s extended supervision condition unquestionably impinges on her privacy more than the standard conditions imposed on persons on extended supervision.”

    However, because the condition is limited to the duration of her extended supervision and to the search for firearms, and because it is based on the specific facts of this case, “the aspects of the condition that are more intrusive are still not overly broad such that they violate her protections under the Fourth Amendment or Article I, Section 11.”

    Officer Acting in an Official Capacity

    The other issue before the court was whether the evidence presented at trial was sufficient to support the element of the crime of battery to a law enforcement officer that the officer be acting in an official capacity at the time of the battery. This is an element the State must prove beyond a reasonable doubt.

    Rowan’s argument was that police officers are not “employed to assist hospital personnel in providing medical treatment,” and since the officer here restrained Rowan at the request of a nurse who was attempting to conduct a blood draw, there was insufficient evidence to support the conviction because the officer was not acting in an official capacity.

    The evidence heard by the jury included that the officer was dispatched to the hospital by her employer, the River Falls Police Department. The emergency room doctor testified that when Rowan arrived at the hospital, she was combative, fighting and threatening the lives of the emergency room personnel and their families.

    While in the emergency room, Rowan received treatment for her injuries and was subject to a blood draw to which she did not consent, and that procedure was supervised by the law enforcement officers present. The officer who was injured was actively assisting the other officers in restraining a combative suspect who was under arrest and under investigation for operating while intoxicated.

    After reviewing the evidence presented to the jury, the court held that, “we are satisfied that there was evidence that supported the jury verdict that included the finding that Officer Knutson was acting in an official capacity at the time of the battery by Rowan.”

    As to both issues presented to the court, the court affirmed the judgment of the circuit court.


    Deborah Spanic is a legal writer for the State Bar of Wisconsin.