(dissenting). 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 judges blanket authority to order searches of convicted persons. The majority concludes that the need for all relevant sentencing information justifies warrantless 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 judge'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 *606enforcement, 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).1
As the majority indicates, the United States Supreme Court has recognized the existence of "special *607needs" 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 judge. 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 judge 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, the Court held that the Wisconsin probation system presents certain "special needs," one of which was the need for supervision. Specifically, the 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 *608upon 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 judge sentences an individual to probation, but this no more makes the judge's decision a part of that system them a prison sentence makes a judge'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 judge'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 judge'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, the 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 *609probation is an appropriate, safe, useful, and reasonable disposition" of a convicted defendant is not a "special need," and the warrantless search of Guzman violated the Fourth Amendment.2
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 warrantless 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 warrantless, 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 equalling those of the ordinary citizen *610or exceeding those of one already found appropriate for probation. Society has been assured by the granting of probation that the judge 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: *611Pursuant to secs. 969.01(2) and (4), Stats., the sentencing judge has the discretion to allow release on bail after conviction, and may impose reasonable conditions to protect the community.3 In this case, the trial judge 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 *612who, for articulated reasons, specifically have been made subject to pervasive regulations.
*610The defendant shall appear personally in the Court on September 29, 1989 at 1:00 o'clock P.M., which time the 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.
*612The 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 fíne of "not less than $1,000 nor more than $200,000" and imprisonment "for not more than 5 years." Section 161.41(l)(c)l, 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 reha*613bilitation. A judge 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 the 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.
In effect, a finding of "special needs" reduces the Fourth Amendment to its first operative phrase: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .."
The state offered no other justification for the search than "special need."
Section 969.01(2)(a), Stats., provides:
Release pursuant to s. 969.02 or 969.03 may be allowed in the discretion of the trial court after conviction and prior to sentencing or the granting of probation.
Section 969.01(4), Stats., provides:
If bail is imposed, it shall be only in the amount found necessary to assure the appearance of the defendant. Conditions of release, other than monetary conditions, may be imposed for the purpose of protecting members of the community from serious bodily harm or preventing intimidation of witnesses. Proper considerations in determining whether to release the defendant without bail, fixing a reasonable amount of bail or imposing other reasonable conditions of release {tie: the ability of the arrested person to give bail, the nature, number and gravity of the offenses and the potential penalty the defendant faces, whether the alleged acts were violent in nature, the defendant's prior criminal record, if any, the character, health, residence and reputation of the defendant, the character and strength of the evidence which has been presented to the judge, whether the defendant is currently on probation or parole, whether the defendant is already on bail or subject to other release conditions in other pending cases, whether the defendant has been bound over for trial after a preliminary examination, whether the defendant has in the past forfeited bail or violated a condition of release or was a fugitive from justice at the time of arrest, and the policy against unnecessary detention of the defendant's pending trial.