This is a review of a published decision of Court of appeals *fn1 which affirmed a judgment and order of the Circuit Court for Walworth County Honorables Robert J. Kennedy and John R. Race Court holding the search of Steven Guzman in the form of urinalysis to be constitutional. The issue is whether Steven Guzman (defendant) who was convicted of felonious delivery of a controlled substance as a party to a crime was searched in violation of the Fourth Amendment to the United States Constitution *fn2 or Article I SEC. 11 of the Wisconsin Constitution. *fn3 At the sentencing hearing the circuit court ordered defendant to submit to a surprise drug screening urinalysis test without probable cause and without a judicial search warrant. We hold that the ordered urinalysis did not violate the United States Constitution or the Wisconsin Constitution.

The facts are not disputed. On January 27, 1989 a one count criminal complaint was filed against defendant charging him with delivering a controlled substance to wit cocaine as a party to a crime in violation of SEC.(s) 161.41(1)(c)1 (Uniform Controlled Substances Act) and 939.05(1) Stats. (Parties to a Crime). On August 14, 1989 the circuit court accepted defendant's guilty plea and adjudged him guilty.

On September 29, 1989 at the initial sentencing hearing Court Kennedy possessed a pre-sentence report prepared by a Department of Health and Social Services probation and parole agent based on interviews of defendant members of defendant's family and a police officer with post-arrest involvement with the defendant. The report revealed that defendant age 23 started using illegal drugs including cocaine and marijuana at age 18 or 19. It noted that after defendant was arrested he moved to Colorado where he worked as a security officer. According to the report defendant stated he "'started over '" and "has been completely free of drugs." The report noted defendant feels "his drug use started as a recreational tool and that this criminal prosecution has cured him of any idea that he would want to use drugs again and that at the present time he is using no illegal drugs." Finally the report recommended defendant be placed on probation fined $1,000 have his probation transferred to the State of Colorado and be required to pay the costs of prosecution.

At the sentencing hearing defendant's Counsel confirmed that defendant wished to be placed on probation. Court Kennedy stated there was a likelihood of probation based on the report but that he wanted to make sure the defendant had no contact with cocaine or marijuana since his conviction. Without a search warrant Court Kennedy then revoked defendant's bond and ordered defendant to submit to a drug screening test stating:

If that test were to be positive obviously they would take him over to the hospital for further testing; but if it's negative then he's going to get his way. It [sic] [I] will go along with this pre-sentence report.

My primary purpose in this particular case is if I am satisfied that drugs are out of Steve's life that they're gone and I think they are then I am going to go along with the type of sentence this type of sentence and let him go to Colorado et cetera.

But if he has cocaine or marijuana in his system then my sentence will be entirely different.

Court recessed and defendant was transported to the Walworth County Huber Dorm *fn4 by Walworth County Sheriff's Department police officers where a urine sample was obtained. The sample tested positive for cocaine.

After recess and over objections by defense Counsel Court Kennedy read the positive test results into the record and scheduled a continued sentencing hearing. Court Kennedy stated that while he "had no foundation to believe that the defendant has drugs" prior to the testing Court nevertheless has the power to demand any sort of reasonable test, Counseling or whatever, in connection with the probation report, or the pre-sentence report.

On November 9, 1989 at the continued sentencing hearing Court Kennedy noted the urine sample had been re-tested at Lakeland Hospital and the test results were again positive for cocaine. Recognizing the possibility of appeal Court Kennedy imposed the sentence distinguishing what he actually was imposing as opposed to what he was prepared to impose prior to the urinalysis. Court Kennedy sentenced defendant to five years probation on the condition that he serve six months in the Walworth County Jail and not leave Wisconsin during the first two years of probation. Prior to the urinalysis Court Kennedy would have sentenced defendant to three years probation no jail time and allowed defendant to leave Wisconsin under certain conditions.

On December 5, 1989 upon trial Counsel's motion for release on bond pending appeal the defendant was released by Court and jail time was stayed pending appeal.

On July 5, 1990 Circuit Court Judge Race heard oral argument on defendant's motion for post-conviction relief seeking modification of Judge Kennedy's sentence. Judge Race denied the motion and upheld Judge Kennedy's sentence.

It is not disputed that Court Kennedy did not issue a search warrant or have probable cause to believe that defendant had ingested a controlled substance. The issue is whether absent a search warrant and probable cause the ordered urinalysis violated either the Fourth Amendment of the United States Constitution or Article I sec. 11 of the Wisconsin Constitution?

Whether a search is reasonable is a constitutional question of law this court reviews independently without deference to either the circuit court or Court of appeals. State v. Griffin 131 Wis. 2d 41 49 388 N.W.2d 535 (1986) aff'd 483 U.S. 868 (1987). We may interpret Article I sec. 11 differently than the Supreme Court interprets the Fourth Amendment. State v. Weide 155 Wis. 2d 537 547 455 N.W.2d 899 (1990). However we have consistently and routinely conformed the law of search and seizure under the Wisconsin Constitution to the law developed by the United States Supreme Court under the Fourth Amendment; in part because the text of Article I sec. 11 of the Wisconsin Constitution and the text of the Fourth Amendment are identical except for a few inconsequential differences in punctuation capitalization and the use of the plural and in part to avoid confusion concomitant with the use of different standards. State v. Fry 131 Wis. 2d 153 172-73 388 N.W.2d 565 (1986) cert denied 479 U.S. 989 (1986); accord Weide 155 Wis. 2d at 546-47. *fn5

Accordingly we do not here distinguish between the Article 1 sec. 11 issue and the Fourth Amendment issue and recognize that the principles enunciated by the Supreme Court regarding the Fourth Amendment are followed in interpreting Article I sec. 11 of the Wisconsin Constitution.

The collecting and testing of an individual's urine intrudes upon expectations of privacy that society has long recognized as reasonable constitutes a search and implicates the Fourth Amendment. Skinner v. Railway Labor Executives' Assn. 489 U.S. 602 617 (1988). To hold that the Fourth Amendment is applicable however is only to begin the inquiry. The analytical framework used to determine whether probable cause and a warrant are necessary before drug testing can be ordered was recently set forth in Skinner:

[T]he Fourth Amendment does not proscribe all searches and seizures but only those that are unreasonable. What is reasonable of course depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself.

Thus the permissibility of a particular practice "is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests."

In most criminal cases we strike this balance in favor of the procedures described by the Warrant Clause of the Fourth Amendment. Except in certain well-defined circumstances a search or seizure in such a case is not reasonable unless it is accomplished pursuant to a judicial warrant issued upon probable cause. We have recognized exceptions to this rule however when 'special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.' When faced with such special needs we have not hesitated to balance the governmental and privacy interests to assess the practicality of the warrant and probable cause requirements in the particular context.

Skinner 489 U.S. at 619 (citations omitted).

Thus the initial question is whether this case presents "special needs beyond the normal need for law enforcement." Id. If it does the question becomes whether such "special needs" justify the abrogation of the warrant and probable cause requirements. This is accomplished by balancing the governmental interests against the defendant's privacy interests. Skinner 489 U.S. at 619. See also Griffin 483 U.S. at 875-80.

The Supreme Court recognizes the existence of "special needs" in various contexts. *fn6 Defendant argues that a "special needs" situation does not exist in the present case since obtaining information relating to sentencing is not an "exceptional circumstance[] . . . beyond the need for law enforcement." T.L.O. 469 U.S. at 351.

We disagree and point out that we are not creating a new "special needs" category for sentencing in drug offenses. Rather we merely hold that the present situation falls into a "special needs" category already recognized by the Supreme Court. In Griffin 483 U.S. at 873-74 the United States Supreme Court held Wisconsin's operation of its probation system to be a "special needs" situation stating:

A State's operation of a probation system like its operation of a school government office or prison or its supervision of a regulated industry likewise presents 'special needs' beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements.

As in Griffin the "special need" confronting us is the operation of Wisconsin's probation system -- specifically the sentencing court's need for information relevant to whether probation is an appropriate safe useful and reasonable disposition of the criminal. In Wisconsin it is an abuse of discretion for a sentencing court to uniformly refuse to consider a grant of probation where probation is an available sentencing alternative. State v. Martin 100 Wis. 2d 326 327 302 N.W.2d 58 (Ct. App. 1981). A decision must therefore be made by the sentencing court as to whether probation is appropriate. The sentencing court's decision thereby becomes an indispensable and integral part of the operation of the probation system since the Court has no choice but to consider the grant of probation where it is an available sentencing alternative.

A finding of a "special need . . . permit[s] a degree of impingement upon privacy that would not be constitutional if applied to the public at large." Griffin 483 U.S. at 875. Thus we must now determine whether such special need abrogates the warrant and probable cause requirements by balancing the governmental interests against the defendant's interest in privacy.

The governmental interest in obtaining relevant information to determine whether probation is an appropriate safe useful and reasonable sentence is substantial. Both the Supreme Court and Wisconsin courts recognize this substantial interest. In Williams v. New York 337 U.S. 241 247 (1949) (footnote omitted) the Supreme Court stated: "Highly relevant -- if not essential -- to [the] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics." Accord State v. Rush 147 Wis. 2d 225 230 432 N.W.2d 688 (Ct. App. 1988). The Supreme Court reiterated this principle in Wasman v. United States 468 U.S. 559 563-64 (1984) (citation omitted):

It is now well established that a Court or other sentencing authority is to be accorded very wide discretion in determining an appropriate sentence. The sentencing court or jury must be permitted to consider any and all information that reasonably might bear on the proper sentence for the particular defendant given the crime committed . . . . Allowing consideration of such a breadth of information ensures that the punishment will suit not merely the offense but the individual defendant.

Wisconsin has a strong public policy that the sentencing court be provided with all relevant information. See Grant v. State 73 Wis. 2d 441 448 243 N.W.2d 186 (1976); State v. McQuay 148 Wis. 2d 823 827 436 N.W.2d 905 (Ct. App. 1989) rev'd on other grounds 154 Wis. 2d 116 452 N.W.2d 337 (1990). As stated in Elias v. State 93 Wis. 2d 278 285 286 N.W.2d 559 (1980): "The responsibility of the sentencing court is to acquire full knowledge of the character and behavior pattern of the convicted defendant before imposing sentence" (emphasis added).

To this end Wisconsin allows the sentencing court to consider a broad range of factors when determining a sentence. The primary factors considered by Court are the gravity of the offense the character of the offender and the need for protection of the public. Elias 93 Wis. 2d at 284; State v. Jones 151 Wis. 2d 488 495 444 N.W.2d 760 (Ct. App. 1989). Court may also consider: the past record of criminal offenses; any history of undesirable behavior patterns; the defendant's personality character and social traits; the results of a pre-sentence investigation; the vicious or aggravated nature of the crime; the degree of defendant's culpability; the defendant's demeanor at trial; the defendant's age educational background and employment record; the defendant's remorse repentance and "cooperativeness;" the defendant's need for close rehabilitative control; the rights of the public; and the length of pretrial detention. Jones 151 Wis. 2d at 495.

Probation the sentencing alternative relevant in this case highlights this substantial governmental interest:

The theory of probation contemplates that a person convicted of a crime who is responsive to supervision and guidance may be rehabilitated without placing him in prison. This involves a prediction by the sentencing court society will not be endangered by the convicted person not being incarcerated . . . . If the convicted criminal is thus to escape the more sever punishment of imprisonment for his wrongdoing society and the potential victims of his anti-social tendencies must be protected. State v. Evans 77 Wis. 2d 225 231 252 N.W.2d 664 (1977).

This is reiterated in the Department of Correction regulations regarding parolees and probationers:

Parole and probation supervision is a mechanism of control and an attempt to guide offenders into socially appropriate ways of living . . . . Specifically field staff are to attempt to help the client adjust to and cope with community living reduce crime and protect the public.

Wis. Admin. Code sec. Doc 328.04 (April 1990).

Balanced against this is the defendant's interest in privacy. The act of providing urine is one in which society recognizes a reasonable expectation of privacy. Skinner 489 U.S. at 617. As stated in Treasury Employees v. Von Raab 816 F.2d 170 175 (1987) (quoted in Skinner 489 U.S. at 617):

There are few activities in our society more personal or private than the passing of urine. Most people describe it by euphemisms if they talk about it at all. It is a function traditionally performed without public observation; indeed its performance in public is generally prohibited by law as well as social custom.

Nevertheless the degree of one's privacy interest may vary with his or her situation. See Von Raab 489 U.S. at 671; O'Connor 480 U.S. at 715; T.L.O. 469 U.S. at 337. There has developed a spectrum of privacy interests within the criminal justice system. It is clear for instance that prisoners retain no expectation of privacy in their cells:

[W]e hold that society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell and that accordingly the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell.

. . . .

A right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order.

Hudson v. Palmer 468 U.S. 517 525-28 (1984) (footnote omitted). *fn7

"Whether a prisoner has any Fourth Amendment protection of his person after Hudson v. Palmer discussed earlier is not entirely clear." Wayne R. LaFave Search and Seizure SEC. 10.9(b) at 114 (2d ed. 1987). What is clear however is the controlling case in that area Bell 441 U.S. 520 (1979) upheld body cavity searches of inmates after contact with visitors to deter the presence of weapons and illicit drugs in the detention facility. *fn8

It is also clear that parolees and probationers while having greater privacy interests than prisoners do not enjoy the same degree of privacy expectations as the ordinary citizen. In State v. Tarrell 74 Wis. 2d 647 654 247 N.W.2d 696 (1976) this court stated: "The expectations of privacy of a person on probation cannot be the same as the expectations of privacy of persons not on probation." The Supreme Court in Griffin stated:

To a greater or lesser degree it is always true of probationers (as we have said it to be true of parolees) that they do not enjoy "the absolute liberty to which every citizen is entitled but only . . . conditional liberty properly dependent on observance of special (probation) restrictions."

Griffin 483 U.S. at 874 (citation omitted).

The specific question regarding the degree of privacy expectations possessed by a convicted defendant awaiting sentencing has not been addressed either by this court or the United States Supreme Court. To determine one's privacy expectation courts must determine whether the expectation in a given context is one which "society is prepared to recognize as 'reasonable.'" Hudson 468 U.S. at 525 (quoting Katz v. United States 389 U.S. 347 361 (1967) (Harlan J. concurring)). *fn9

Common sense dictates that a convicted defendant who has yet to be granted probation has a lesser expectation of privacy than such defendant would have had he or she been granted probation. The reasons are manifest. If society does not recognize as reasonable a probationer's expectation of privacy to be equal to that of the ordinary citizen then surely it is not reasonable to recognize a convicted defendant who has yet to be found appropriate for probation to have interests equaling those of the ordinary citizen or exceeding those of one already found appropriate for probation. Society has been assured by the granting of probation that the Court believes the convicted defendant is able to live with less supervision and interference than one in prison. No such assurance exists prior to the grant of probation. It would defy sound reason to hold that a convicted defendant who has yet to be adjudged safe to society at large has an equal or greater privacy interest than one who has already been adjudged safe to intermingle with the general populace.

Therefore we hold that like the prisoner parolee and probationer one convicted of a crime awaiting sentencing possesses a lesser privacy expectation than the general public. Moreover we hold that where probation is an available sentencing alternative a convicted defendant awaiting sentencing has a lesser expectation of privacy than one already granted probation.

To ascertain whether the warrant and probable cause requirements are practical we thus balance the substantial interest Wisconsin has in obtaining information relevant to whether probation is an appropriate safe useful and reasonable sentencing alternative with the minimal or diminished privacy interests of a convicted defendant awaiting sentencing.

Defendant concedes that had defendant been on probation or parole a seizure and search of his urine would have been permissible if ordered by the probation or parole officer. Defendant argues that Griffin 131 Wis. 2d 41 (1986) which upheld a probation officer's warrant-less search of a probationer's home without probable cause and State v. Flakes 140 Wis. 2d 411 410 N.W.2d 614 (Ct. App. 1987) which upheld a parole agent's warrant-less search of a parolee's home without probable cause do not justify the search in the present case. Defendant first points out that unlike in Griffin and Flakes the search of defendant was ordered by the "government" as opposed to an order from a probation or parole officer and second that the search did not occur when the defendant was on probation or parole.

Defendant's first distinction is without merit. We do not perceive a probation officer who is a state employee and whose activities include: obtaining information necessary for appropriate supervision and control of the client; evaluating the client's needs and security risk; establishing written rules of supervision that are supplemental to existing court-imposed or parole commission conditions; assisting Court in investigation the facts surrounding victim's loss for restitution purposes; and recommending extension discharge and revocation *fn10 as being any less an instrument of the government than a Court.

In addition defendant's first distinction implies that one searched pursuant to a judicial order is protected by the Fourth Amendment while one searched pursuant to a probation officer's order is not protected. This is incorrect. One searched pursuant to a probation officer's order is protected by the Fourth Amendment since as demonstrated in Griffin the search must still meet the "reasonableness" requirement of the Fourth Amendment even though it need not meet the warrant and probable cause requirements. See Griffin 483 U.S. at 872-83.

Defendant's second distinction that a convicted defendant awaiting sentencing is not on probation and therefore should have greater Fourth Amendment protections than one already adjudged appropriate for probation is equally without merit. It rests upon the incorrect assumption that a convicted defendant awaiting sentencing has a greater privacy interest than one already on probation. For the reasons previously discussed a convicted defendant awaiting sentence reasonably possesses a lesser degree of privacy interests than one already adjudged appropriate for probation.

Defendant also argues that both Griffin and Flakes involved warrant-less searches based on "reasonable grounds" while no such grounds were present in defendant's situation. In Griffin the United States Supreme Court upheld this court's determination that a probation officer's search of a probationer's home without a search warrant and without probable cause based instead on "reasonable grounds was constitutional. Griffin, 483 U.S. at 880. Wisconsin places probationers in the legal custody of the State Department of Health and Social Services and renders [the probationers] 'subject . . . to . . . conditions set by Court and rules and regulations established by the department.'" Id. at 870. A Department regulation "permits any probation officer to search a probationer's home without a warrant as long as his supervisor approves and as long as there are 'reasonable grounds' to believe the presence of contraband." Id. at 870-71.

In Griffin a probation officer received a tip from a police officer that the probationer's home contained a gun or guns. Based on the tip a probation officer searched the probationer's home and discovered a gun. The United States Supreme Court noted that it was bound by this court's interpretation that the probation officer's search of probationer's home was based upon "reasonable grounds" pursuant to the regulation. The Supreme Court was careful however to point out that it held the search to be constitutional since it was made pursuant to a regulation which itself satisfied the "reasonableness" requirement of the Fourth Amendment. Griffin 483 U.S. at 872-73. Court did not hold that a finding of "reasonable grounds" was necessary before a finding of "reasonableness" could be found. It merely held that a search made pursuant to a regulation including a reasonable grounds standard was constitutional. Thus while a warrant-less search based on a regulation mandating "reasonable grounds" meets the "reasonableness" requirement of the Fourth Amendment not all warrant-less searches must be based on "reasonable grounds" to meet the Fourth Amendment "reasonableness" requirement.

That "reasonable grounds" are not necessary to satisfy the "reasonableness" requirement of the Fourth Amendment is apparent. We observe that drug tests involving urinalysis absent a warrant probable cause or even individualized suspicion have been upheld in "special needs" cases where the Supreme Court has found substantial government interests and diminished individual privacy interests. Skinner involved Federal Railroad Administration regulations mandating blood and urine tests of employees involved in certain train accidents. Court held:

In light of the limited discretion exercised by the railroad employers under the regulations the surpassing safety interests served by toxicological tests in this context and the diminished expectation of privacy that attaches to information pertaining to the fitness of covered employees we believe that it is reasonable to conduct such tests in the absence of a warrant or reasonable suspicion that any particular employee may be impaired.

Skinner 489 U.S. at 634.

In Von Raab the Commissioner of the U.S. Customs Service instituted a drug screening program requiring urinalysis for employees seeking transfer or promotion to certain positions. The Supreme Court upheld the warrant-less and suspicionless drug testing program:

[O]ur decision in [Skinner] reaffirms the longstanding principle that neither a warrant nor probable cause nor indeed any measure of individualized suspicion is an indispensable component of reasonableness in every circumstance.

Von Raab 489 U.S. at 665.

If a railroad employee as in Skinner and a U.S. Customs employee as in Von Raab may be subjected to urinalysis without a warrant probable cause or even individualized suspicion then surely one convicted of a drug related offense facing possible probation should be subject to such a search also.

The method to determine whether any degree of individualized suspicion is required was stated in Skinner:

In limited circumstances where the privacy interests implicated by the search are minimal and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion a search may be reasonable despite the absence of such suspicion.

Skinner 489 U.S. at 624.

The purpose of probation is to rehabilitate those convicted of a crime and to protect the public from further criminal conduct. Wagner v. State 89 Wis. 2d 70 77 277 N.W.2d 849 (1979); Tarrell 74 Wis. 2d at 653. Whether the convicted defendant continues to use drugs is of paramount importance in his or her rehabilitation. A Court must necessarily have such information to ascertain the rehabilitative needs of one convicted of a drug related offense.

The Court cannot reasonably rely upon the representations of such a defendant because he or she has the incentive to deny continuing drug use in hopes of receiving a more lenient sentence. The individual who is to benefit from the rehabilitation has an incentive to hide the very facts of his or her life which reveal his or her rehabilitative needs. No convicted defendant in need of rehabilitation should be placed in the quandary of deciding whether to lie about their continued drug use in hopes of a more lenient sentence or to be forthright and receive a possibly harsher sentence which nevertheless is tailored to their rehabilitative needs. A Court's authority to order urinalysis thus increases the Court ability to gather information about the convicted defendant's rehabilitative needs reduces the convicted defendant's incentive to misinform Court about his or her continued drug use and forces the convicted defendant to confront his or her drug problem responsibly.

We note that the Court may also look to the pre-sentence report in addition to the representations of the convicted defendant. Such report as demonstrated by the present case is sometimes unreliable as well. The probation officer who wrote the pre-sentence report interviewed the defendant both of defendant's parents defendant's brother defendant's sister and the officer involved with the defendant after his arrest. Despite these diligent and thorough efforts the probation officer did not uncover the fact of defendant's continued illegal drug use.

This same reasoning applies to Court's responsibility to protect society's safety interests as the sentencing court must predict whether the convict will endanger the public. Evans 77 Wis. 2d at 231. The sentencing court must be able to determine whether a convicted defendant is appropriate for probation or whether probation poses a threat to the safety of society. Certainly one convicted of a drug related crime remains a substantial threat to society where such individual continues his or her criminal conduct.

As demonstrated by the present case the existing tools are sometimes inadequate for a sentencing court to obtain critical information about a convicted defendant. Thus the convicted defendant's rehabilitation and society's protection are jeopardized. Without the ability to substantiate a convicted defendant's representations that he or she is no longer involved with illegal drugs the sentencing Court is relegated to the position of guessing of having to rely on demonstrably incomplete inaccurate and dubious information. The Fourth Amendment does not require Court to guess. That would serve neither the convicted defendant in need of rehabilitation nor a society in need of protection.

Since probable cause or individualized suspicion is unnecessary it follows that a warrant is unnecessary also. Court in Griffin explains why. In responding to Justice Blackmun's dissent which argued that even though probable cause is unnecessary a warrant should still be required Griffin 483 U.S. at 882 the majority pointed out that except in certain administrative contexts requiring a warrant when probable cause was not required "runs up against the constitutional provision that 'no Warrants shall issue but upon probable cause.'" Griffin 483 U.S. at 877-878 and nn.4-5. We agree. The very legitimacy of a warrant is based on the fact that such warrant was issued upon a finding of probable cause. Without the finding of probable cause the legitimacy of the governmental power to search ordinarily disappears.

Even though not required we note that the purposes of the warrant requirement were fully served in this case:

An essential purpose of a warrant requirement is to protect privacy interests by assuring citizens subject to a search or seizure that such intrusions are not the random or arbitrary acts of government agents. A warrant assures the citizen that the intrusion is authorized by law and that it is narrowly limited in its objective and scope. A warrant also provides the detached scrutiny of a neutral magistrate and thus ensures an objective determination whether an intrusion is justified in any given case.

Skinner 489 U.S. 621-22 (citations omitted).

Court's order was not random nor arbitrary. The order was specifically related to the nature of the crime and the consideration of probation as a sentencing alternative. The objective was to obtain information regarding the specific issue of whether defendant was using controlled substances to determine the appropriateness of probation. The scope of the search was thus narrowly limited to the presence of a controlled substance in defendant's system. Lastly the Court is the neutral magistrate who by his very position is able to make an objective determination as to whether the intrusion is justified.

Balancing the government's substantial interest in obtaining information relevant to whether probation is an appropriate safe useful and reasonable disposition of the convicted defendant against the minimal privacy interests of a convicted defendant awaiting sentence we hold that a warrant probable cause or individualized suspicion are not practical and therefore the search did not violate the Fourth Amendment or Article I SEC. 11.

We hold that when a convicted defendant is awaiting sentencing for a drug related offense and probation is a sentencing alternative a Court may in his or her discretion order such defendant to submit to urinalysis or other appropriate tests to determine the presence of illegal drugs in his or her system. If the test(s) yield a positive result for the presence of illegal drugs the Court is then to use his or her discretion in deciding whether probation is appropriate. This decision does not mandate urinalysis or other tests for convicted defendants awaiting sentencing or mandate that positive test results yield a denial of probation. Both of these decisions are left to the sound discretion of the sentencing court.

By Court. -- The decision of Court of appeals is affirmed and the cause remanded to the circuit court for further proceedings not inconsistent with this opinion.

Dissenting: The Hon. Chief Justice Heffernan

Both the trial court and the majority seek to reach a desirable result - to determine whether a person convicted of a crime is an appropriate candidate for probation. Unfortunately they attempt to reach this result in the least acceptable fashion -- by discarding the mandated protections of the Fourth Amendment in favor of allowing sentencing Court blanket authority to order searches of convicted persons. The majority concludes that the need for all relevant sentencing information justifies warrant-less searches predicated upon no suspicion at all. Because I conclude that the need for all relevant sentencing information does not nullify the protections of the Fourth Amendment I dissent.

The majority opinion relies upon three faulty assumptions to reach its conclusion: that a Court's sentencing decision is a part of the Wisconsin probation system that the need for relevant sentencing information is a "special need" beyond the need for normal law enforcement and that persons convicted and awaiting sentencing have a lesser expectation of privacy than persons on probation.

The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons houses papers and effects against unreasonable searches and seizures shall not be violated and no Warrants shall issue but upon probable cause supported by Oath or affirmation and particularly describing the place to be searched and the person or things to be seized.

Implicit in this language is the understanding that probable cause is ordinarily required to justify reasonableness. However the United States Supreme Court has recognized numerous exceptions to the warrant requirement in situations where a search is reasonable in the absence of probable cause. One of these exceptions is where "special needs beyond the normal need for law enforcement make the warrant and probable-cause requirement impracticable." New Jersey v. T.L.O. 469 U.S. 325 351 (1985) (Blackmun J. concurring). Where such special needs exist the reasonableness of the search will be determined not by the warrant and probable cause requirements but by balancing the governmental interests against the defendant's privacy interests. Skinner v. Railway Labor Executives' Assn. 489 U.S. 602 619 (1989). *fn1

As the majority indicates the United States Supreme Court has recognized the existence of "special needs" in several different contexts. Majority op. at 588-589 n.6. None of these cases however supports the extension of this doctrine to an ordinary sentencing decision by a trial Court. The majority states that it is not creating a new "special needs" category for sentencing in drug cases but goes on to create a new "special needs" category for a sentencing Court in every case where probation is a sentencing option. Because probation is an option in nearly every criminal prosecution except where the crime is punishable by life imprisonment SEC. 973.09(1) Stats. this new "special needs" category reaches far beyond sentencing in drug cases. The majority gives no logical explanation for this bold expansion of judicial power at the expense of the Fourth Amendment.

The majority asserts that "the present situation falls into a 'special needs' category already recognized by the [United States] Supreme Court." Majority op. at 590. The majority contends that in Griffin v. Wisconsin 483 U.S. 868 (1987) the United States Supreme Court "held Wisconsin's operation of its probation system to be a 'special needs' situation." Majority op. at 590. This is simply not true. In Griffin the United States Supreme Court did not state that Wisconsin's probation system is a special needs situation; rather Court held that the Wisconsin probation system presents certain "special needs one of which was the need for supervision. Specifically, Court stated:

Recent research suggests that more intensive supervision can reduce recidivism, and the importance of supervision has grown as probation has become an increasingly common sentence for those convicted of serious crimes. Supervision, then, is a special need" of the State permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large.

Griffin 483 U.S. at 875 (citations omitted). This limited holding does not translate into a holding that the entire Wisconsin probation system is a "special need."

Additionally the sentencing decision is not a part of the probation system. The majority asserts that a sentencing court's decision regarding whether probation is appropriate is "an indispensable and integral part of the operation of the probation system . . . ." Majority op. at 590-591. This conclusion is not supportable. True the probation system cannot operate until a Court sentences an individual to probation but this no more makes the Court's decision a part of that system than a prison sentence makes a Court's decision an integral part of the Wisconsin prison system. Sentencing probation and imprisonment are each separate components of the criminal process and should be treated as such. Griffin does not control this case.

Outside of the holding of Griffin the question is whether a sentencing Court's need for information relevant to whether probation is appropriate presents "special needs beyond the normal need for law enforcement [which make] the warrant and probable-cause requirement impracticable." T.L.O. 469 U.S. at 351 (Blackmun J. concurring). It does not. A Court's need for information relevant to sentencing is part of the "normal" operation of the criminal justice system. The warrant and probable cause requirements are no more "impracticable" at this point in the proceedings than they are at or before trial. At trial Court does not have a "special need" for information relevant to a determination of the defendant's guilt or innocence. In both instances a primary concern is the protection of the public. Therefore the need for relevant information to determine "whether probation is an appropriate safe useful and reasonable disposition" of a convicted defendant is not a "special need and the warrant-less search of Guzman violated the Fourth Amendment. *fn2

The majority after creating a broad new "special needs" category for nearly all sentencing decisions goes on to consider whether the government's interests served by the warrant-less search outweigh the convicted defendant's privacy interests. It is undeniable that Wisconsin has a substantial interest in obtaining information relevant to sentencing. However this interest alone does not nullify constitutional protections. In the context of this case it must be measured against the privacy interests of a convicted defendant to determine whether the warrant and probable cause requirements are "impracticable" and a warrant-less suspicionless search "reasonable."

The majority correctly states that neither prisoners nor probationers enjoy the same degree of privacy expectations as ordinary citizens. Hudson v. Palmer 468 U.S. 517 528 (1984); State v. Tarrell 74 Wis. 2d 647 654 247 N.W.2d 696 (1976). At this point in the analysis however the majority makes an unsubstantiated leap of logic stating:

Common sense dictates that a convicted defendant who has yet to be granted probation has a lesser expectation of privacy than such defendant would have had he or she been granted probation. The reasons are manifest. If society does not recognize as reasonable a probationer's expectation of privacy to be equal to that of the ordinary citizen then surely it is not reasonable to recognize a convicted defendant who has yet to be found appropriate for probation to have interests equaling those of the ordinary citizen or exceeding those of one already found appropriate for probation. Society has been assured by the granting of probation that the Court believes the convicted defendant is able to live with less supervision and interference than one in prison. No such assurance exists prior to the grant of probation. It would defy sound reason to hold that a convicted defendant who has yet to be adjudged safe to society at large has an equal or greater privacy interest than one who has already been adjudged safe to intermingle with the general populace.

Majority op. at 596. The superficial logic of this conclusion disappears when the reasons underlying a prisoner's or a probationer's limited expectation of privacy are examined. Both derive from pervasive state supervision not from any general need to protect the public. See Hudson 468 U.S. at 528; Griffin 483 U.S. at 874; and Wis. Admin. Code SEC. Doc chs. 302-350 (April 1990).

Individuals convicted of a crime and awaiting sentencing are not subject to similar regulations and supervision. Rather as evidenced in this case the convicted offender may simply be released on bond and ordered to appear for sentencing. The "Certificate of Order to Appear for Sentencing and for Pre-Sentence Investigation" filed in this case stated:

The defendant shall appear personally in Court on September 29 1989 at 1:00 o'clock P.M. which time Court now sets for sentencing; and

The State Department of Health and Social Services shall make a pre-sentence examination and investigation of the defendant and report its findings to this Court at least 48 hours prior to that date; and

Pending sentence the defendant is hereby released on signature bond.

Pursuant to SEC. 969.01(2) and (4) Stats. the sentencing Court has the discretion to allow release on bail after conviction and may impose reasonable conditions to protect the community. *fn3 In this case the trial Court apparently concluded that no conditions were necessary to protect the public. During the interim between the trial court's acceptance of Guzman's guilty plea and the initial sentencing date the record indicates that Guzman moved to Colorado and worked as a security guard. In the absence of any restrictions upon his personal freedom it is without rational foundation to assert that convicted defendants awaiting sentencing as a class have lesser expectations of privacy than probationers who for articulated reasons specifically have been made subject to pervasive regulations.

The majority's conclusion seems to rest on a determination that until a sentence of probation is imposed the convicted defendant should be viewed for Fourth Amendment purposes as the equivalent of a prisoner. This ignores the fact that Guzman could have received the minimum sanction of a $1 000 fine. The penalty prescribed for delivery of cocaine as party to a crime in the amount involved here was a fine of "not less than $1 000 nor more than $200 000" and imprisonment "for not more than 5 years." Section 161.41(1)(c)1 Stats. 1987-88. There was no minimum term of imprisonment. Guzman could have received a sanction less than probation. This is not to say that the potential spectrum of sentences determines a convicted defendant's privacy interests but only that it is erroneous to conclude that convicted persons necessarily have a lesser expectation of privacy than a convicted defendant placed on probation.

The final flaw in the majority's analysis is its conclusion that the convicted defendant's diminished privacy expectation bows to the state's interest in obtaining relevant information such that a chemical search for drugs upon no cause or suspicion of drug use is allowed. The majority acknowledges that "[t]here are few activities in our society more personal or private than the passing of urine." Majority op. at 593 citing Treasury Employees v. Von Raab 816 F.2d 170 175 (5th Cir. 1987) aff'd in part vacated in part 489 U.S. 656 (1989). Yet the majority concludes that the government's interest in knowing the chemical makeup of a convicted defendant's body is so great as to outweigh this interest:

Whether the convicted defendant continues to use drugs is of paramount importance in his or her rehabilitation. A Court must necessarily have such information to ascertain the rehabilitative needs of one convicted of a drug-related offense.

Majority op. at 601. This bold new rule is disturbing. Essentially the majority holds that once convicted an individual's constitutional rights disappear in the face of the trial court's need for sentencing information. Nothing in the majority opinion will prevent future courts from ordering all manner of searches of a defendant's person home car or effects if any information relevant to sentencing is arguably ascertainable. This is not reasonable.

As I stated earlier it is desirable that the trial court obtain all relevant information before passing sentence on a convicted defendant but it is also desirable indeed mandatory that the trial court obtain this information in accordance with the constitution. It is no less desirable that Court before passing a judgment of guilty on an accused defendant obtain all relevant information but never has it been said that this need nullifies the protections of the constitution. Nor should it ever be said. I dissent.

I am authorized to state that Justice Shirley S. Abrahamson joins this dissenting opinion.