STATE оf Wisconsin, Plaintiff-Respondent, v. Joseph G. GRIFFIN, Defendant-Appellant-Petitioner.
No. 84-021-CR
Supreme Court
Argued June 4, 1986.—Decided June 20, 1986.
388 N.W.2d 535
For the plaintiff-respondent the cause was argued by Barry M. Levenson, assistant attorney general, with whom on the brief was Bronson C. La Follette, attorney general.
We hold that by its nature, probation places limitations on the liberty and privacy rights of probationers, and these limitations justify an exception to the
On September 4, 1980, Defendant was convicted of resisting arrest, disorderly conduct and obstructing an officer. Defendant was placed on probation for these offenses and was still on probation as of April 5, 1983.
Mr. Michael T. Lew, a supervisor for the State Bureau of Probation and Parole in Beloit, testified at the suppression hearing that on April 5, 1983, he received a phone call from the Beloit Detective Bureau that the Defendant “may have had guns in his apartment.” While Mr. Lew believed the source of the information was Truett Pittner, a detective captain, Captain Pittner testified at the suppression hearing that he did not believe he called Mr. Lew, but rather, believed it was one of his detectives. After waiting two or three hours for the Defendant‘s probation officer, Mr. Lew made arrangements for another probation agent, Ms. Joanne D. Johnson, to participate in the search, and for three Beloit police officers, Officer Sam W. Lathrop, Officer Gerald A. Leppla and Detective Victor Hanson, to provide protection for him and Ms. Johnson.
Mr. Lew, Ms. Johnson and the three plainclothes police officers went to the Defendant‘s apartment. When Defendant answered the door, Mr. Lew told Defendant who they were and informed him that they were going to search his residence. Upon entering the apartment, Mr. Lew went into the kitchen to search, Ms. Johnson went into a bedroom to search, and the
When Mr. Lew entered the living room, followed by Ms. Johnson, оne of the officers pointed toward the area where a table, with a broken drawer which made it possible to see inside the drawer, was located. The table was located in the general direction that Mr. Lew was headed. In the drawer, Mr. Lew found a handgun and turned it over to one of the police officers. He then directed the officers to take Defendant “into custody on a probation violation apprehension.” Defendant alleged that one of the officers told Mr. Lew that there was a gun in the drawer. Ms. Johnson, upon entering the living room, took possession of the alleged marijuana.
On April 11, 1983, a criminal complaint was filed charging the Defendant with possession of a firearm by a felon, contrary to
Defendant filed the following motions: motion to sever, motion to dismiss habitual criminality allegations, motions to dismiss both charges, motion to suppress all evidence obtained during the search of his residence and a motion to dismiss for illegal arrest, seeking dismissal on the ground that the arrest was based on evidence obtained in an illegal search. The motions to sever and dismiss the habitual criminality
In denying the Defendant‘s motions to dismiss because of an illegal arrest and to suppress evidence, the trial court held that Defendant‘s
In addition to the handgun, other evidence, obtained from the search, was admitted into evidence at the jury trial on August 18, 1983.
The jury found the Defendant guilty of possession of a firearm by a convicted felon. The charge of possessiоn of THC was dismissed and “read in” at the sentencing. The judgment of conviction and sentence to Wisconsin State Prisons, dated September 16, 1983, sentenced Defendant to a prison term of two years. An amended judgment, dated October 24, 1983, gave Defendant one hundred and one days credit toward the two year sentence. Defendant appealed the judgment and amended judgment to the court of appeals.
In affirming, the court of appeals relied on the logic of State v. Tarrell, 74 Wis. 2d 647, 247 N.W.2d 696 (1976), to conclude that a probation officer may conduct a warrantless search of a probationer‘s dwelling even if the search does not meet one of the usual exceptions
The constitutional legality of a warrantless search of a probationer‘s residence by a probation officer raises a question of law. This court reviews questions of law “independently without deference to the decisions of the trial court and court of appeals.” Ball v. District No. 4 Area Board, 117 Wis. 2d 529, 537, 345 N.W.2d 389 (1984).
Defendant‘s motion to suppress the handgun was based on the
“[T]o safeguard the privacy and seсurity of individuals against arbitrary invasions by government officials. See Michigan v. Tyler, 436 U.S. 499, 504 (1978). The United States Supreme Court has consistently held that warrantless searches are per se unreasonable under the fourth amendment, subject to a few carefully delineated exceptions. Cady v. Dombrowski, 413 U.S. 433, 439 (1973). These exceptions have been ‘jealously and carefully drawn‘, Jones v. United States, 357 U.S. 493, 499 (1958), and the bur-
den rests with those seeking exemption from the warrant requirement to prove that the exigencies made that course imperative. Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971).”
A person‘s home or residence is entitled to special dignity and sanctity. Laasch v. State, 84 Wis. 2d 587, 594, 267 N.W.2d 278 (1978). The exceptions to the search warrant requirement recognized by the United States Supreme Court include consent, search incident to a lawful arrest, hot pursuit, exigent circumstances and plain view. Texas v. Brown, 460 U.S. 730, 735-736 (1983); Washington v. Chrisman, 455 U.S. 1, 5-7, 9-10 (1982) (plain view and consent). The state does not rely on any of these recognized exceptions to justify the warrantless search of a probationer‘s residence by a probation officer, but rather, it relies on the Defendant‘s probationary status. If there is to be such an exception, its foundation is to be found in the nature of probation. See, Tarrell, 74 Wis. 2d at 653. Neither this court nor the United States Supreme Court has declared such an exception.
Defendant argues that the court should require the probation agent to obtain a search warrant, absent exigent circumstances. He argues that the Tarrell decision created a very limited exception to the warrant requirement based on the fact that the defendant was only subjected to a limited invasion of privacy for a short period of time. Furthermorе, Defendant propounds three public policy reasons why this court should not create a probationer exception to the warrant requirement: 1) Probationers are citizens whose constitutional rights should not be limited absent a compelling reason; 2) Such an exception invites abuse by the police; and, 3) Rights of innocent third parties
“Although there is some authority to the effect that the Fourth Amendment rights of probationers and parolees are of precisely the same scope and dimension as those of the public at large, the weight of authority is to the contrary. . . . And while there is some disagreement as to whether a probationer‘s Fourth Amendment rights are diminished to the same extent and degree as those of a parolee, there is considerable authority supporting the proposition that probationers may lawfully be subjected to searches which, absent their probation status, would be deemed unlawful because of the absence of probable cause or a search warrant or both.” 3 W. LaFave, Search and Seizure, sec. 10.10, at 421-422 (1978). (Footnotes omitted.)
As the court of appeals pointed out, there is ample authority for the viewpoint that probation or parole officers may conduct warrantless searches of a probationer‘s or parolee‘s residence. See, e.g., United States v. Scott, 678 F.2d 32, 34-35 (5th Cir. 1982); Latta v. Fitzharris, 521 F.2d 246, 250 (9th Cir. 1975) (en banc), cert. denied, 423 U.S. 897 (1975); People v. Anderson, 189 Colo. 34, 536 P.2d 302, 305 (1975); State v. Fields, 686 P.2d 1379, 1389-1390 (Hawaii 1984); State v. Pinson, 104 Idaho 227, 657 P.2d 1095, 1099-1100 (Ct. App. 1983) (evidence obtained from a search of the defendant used in a probation revocation hearing); People v. Huntley, 43 N.Y.2d 175, 371 N.E.2d 794, 796, 401 N.Y.S.2d 31 (1977); State v. Earnest, 293 N.W.2d 365, 368-369 (Minn. 1980) (evidence obtained used in a probation revocation hearing; State v. Velasquez, 672 P.2d 1254, 1260 (Utah 1983); State v. Simms, 10 Wash. App. 75, 516 P.2d 1088, 1094 (1974). There is also some authority for the viewpoint that a probation or parole officer may not search a probationer‘s or parolee‘s residence without a warrant, unless one of the judicially recognized exceptions is present. United States v. Rea, 678 F.2d 382, 387-388 (2nd Cir. 1982) (concluding that such requirement would not significantly interfere with the dual goals of рrobation); United States v. Bradley, 571 F.2d 787, 789 (4th Cir. 1978); State v. Cullison, 173 N.W.2d 533, 537 (Iowa 1970), cert. denied, 398 U.S. 938 (1970) (holding that a parolee‘s fourth amendment rights receive the same recognition as any other person); State v. Fogarty, 187 Mont. 393, 610 P.2d 140, 152 (1980) (holding warrant needed to protect legal interests of innocent third persons).4
This court has recognized limits on the liberty and privacy interests of probationers based on the nature of probation. Tarrell, 74 Wis. 2d at 654. In Tarrell, the defendant was on probation for enticing a child for im-
“If there is to be an exception to the requirements of the fourth amendment granting probation agents a limited right to search or seize a probationer without a warrant, the foundation for this exception lies in the nature of probation itself. Probation, like parole, ‘is an integral part of the criminal justice system and has as its object the rehabilitation of those convicted of crime and the protection of the state and community interest.’ State ex rel. Niederer v. Cady, 72 Wis. 2d 311, 322, 240 N.W.2d 626, 633 (1976). While probation is a privilege, not a matter of right, once it has been granted this conditional liberty can be forfeited only by breaching the conditions of probation. A sentencing judge may impose conditions which appear to be reasonable and appropriate.
Sec. 973.09, Stats. A sentence of probation places the probationer ‘in the custody of the department’ subject to the conditions of probation and rules and regulations of the Department of Health and Social Services.Sec. 973.10. All conditions, rules and regulations must be imposed with the dual goal of rehabilitation of the probationer and protection of the public interest. The imposition of these conditions, rules and regulations demonstrates that while a probationer has a conditional liberty, this
liberty is neither as broad nor as free from limitations as that of persons who have not committed a crime. The expectations of privacy of a person on probation cannot be the same as the expectations of privacy of persons not on probation. It is only the reasonable expectations of privacy which the fourth amendment protects. Conditions of probation must at times limit the constitutional freedoms of the probationer. Necessary infringements on these freedoms are permissible as long as they are not overly broad and are reasonably related to the person‘s rehabilitation. By the very nature of probation, limitations on the liberty and privacy of probationers are imposed. These limitations are the bases for an exception to the warrant requirement of the fourth amendment.” Id. at 653-654. (Footnotes omitted.) (Emphasis added.)
Furthermore, this court stated that the application of a “less stringent standard for the probation agent‘s search and seizure” coincides with the agent‘s dual role of assisting in rehabilitating the probationer and protecting the public. Id. at 655. “While there may not have been probable cause for the issuance of a warrant, there was probable cause for the agent‘s attempt to determine whether Tarrell had complied with the probation conditions.” Id.
In Tarrell, this court determined that the seizures were reasonable, and therefore, constitutional. Id. at 656-657. A probation agent has a duty to determine whether the probationer is complying with the terms of his probation, and in Tarrell, this court determined that ordering the defendant to have his photograph taken, and the taking of the photograph furthered the agent‘s efforts to comply with this duty. Id. at 655-656.
In Earnest, the Minnesota court looked at the relationship between the probation officer and his probationer and the dual nature of probation. The court recognized that because of this special relationship the “law relating to probation searches cannot be strictly governed by automatic reference to ordinary search and seizure law.” Earnest, 293 N.W.2d at 368. The Earnest court cited this court‘s decision in Tarrell for this proposition. In Scott, the fifth circuit focused on the dual role of parole to justify warrаntless searches. Scott, 678 F.2d at 34-35. In United States v. Consuelo-Gonzalez, 521 F.2d 259, 265-266 (9th Cir. 1975), the ninth circuit recognized that while probationers are subject to constitutional limitations from which other citizens are free, such limitations must serve the ends of probation. In balancing the probationer‘s right to privacy with the probation system‘s interest in invading the probationer‘s privacy, the court concluded that a probation officer need not obtain a warrant prior to a search.
We are not persuaded by the Defendant‘s argument that this court should not create a probationer exception to the warrant requirement because it will result in abuse by the police. We are not granting a right to the police to undertake a warrantless search. This exception applies to searches conducted by proba-
Nor are we persuaded by the Defendant‘s argument that a warrant is necessary to protect the rights of innocent third persons who may be living with the probationer. Defendant cites only Fogarty for this proposition. Fogarty, 610 P.2d at 152. In dicta, the court in Velasquez said that caution would suggest that a warrant be obtained if the rights of nonparolees may be involved. Velasquez, 672 P.2d at 1260, n. 3. In accordance with the court of appeals’ decision in this case, we find that a nonprobationer‘s rights may be affected whether or not a warrant is required. If a warrant were required, the impartial magistrate would determine whether there was probable cause to search the probationer‘s residence, and the rights of other persons would not be considered. We are not creating a right for probation officers to conduct arbitrary and unreasonable searches. Though a probationer has a diminished expectation of privacy, he still has privacy rights that must be respected. We conclude that the standard which a probation agent must comply with to conduct a warrantless search adequately protects the proba-
Therefore, based on the nature of probation, we conclude that a probation agent who reasonably believes that a probationer is violating the terms of probation may conduct a warrantless search of a probationer‘s residence.6 Furthermore, we conclude that the evidence obtained in the search may be used, as in this case and in Tarrell, at a trial seeking a new conviction against the probationer. If the search is otherwise reasonable, such a search is constitutional. Thus, there is no reason to suppress any evidence discovered during a warrantless search of the probationer‘s residence.
The ultimate standard set forth in the
Defendant argues that in Boggess, 115 Wis. 2d at 455, this court determined that the “totality of the circumstances” analysis used in Illinois v. Gates, 462 U.S. 213 (1983), is to be used in determining the reasonableness of a search. The Supreme Court in Gates used the totality of the circumstances test for the purpose of determining whether probable cause existed to issue a warrant. Boggess, 115 Wis. 2d at 453. We distinguish Boggess from this case on the facts.
In Boggess, the court was confronted with a social worker‘s and police officer‘s warrantless entry into the defendant‘s home to determine the safety and welfare of two children. Id. at 445. The defendant in Boggess was not on probation. Here we are confronted with a
In accordance with the aforementioned cases, we hold that a warrantless search of a probationer‘s residence may be made by a probation officer based on “reasonable grounds” to believe that the probationer has contraband at his residence.
The Department of Health and Social Services has promulgated a rule whiсh allows probation agents to search a probationer‘s residence “if there are reasonable grounds to believe that the quarters . . . contain contraband.”
We agree with the court of appeals’ decision in this case, and we conclude that the reasonable grounds standard in the Administrative Code is less than the probable cause standard needed to obtain a warrant. The notes to
We hold that the “reasonable grounds” standard of
“(6) CONTRABAND. In deciding whether there are reasonable grounds to believe that a client possesses contraband or that a client‘s living quarters or property contain contraband, a staff member shall consider:
“(a) The observations of staff members;
“(b) Information provided by informants;
“(c) The reliability of the information relied on. In evaluating reliability, attention shall be given to whether the information is detailed and consistent and whether it is corroborated;
“(d) The reliability of the informant. In evaluating reliability, attention shall be given to whether the informant has supplied reliable information in the past and whether the informant has reason to supply inaccurate information;
“(e) The activity of the client that relates to whether the client might possess contraband;
“(f) Information provided by the client that is relevant to whether the client possesses contraband;
“(g) The experience of a staff member with that client or in a similar circumstance;
“(h) Prior seizures of contraband from the client; and
“(i) The need to verify compliance with rules of supervision and state and federal law.” (Emphasis added.)8
Finally, we conclude that Mr. Lew had “reasonable grounds” to search the probationer‘s residence. At the motion hearing on August 15, 1983, the trial court found that the searсh in question was not a police search, and that the purpose of the police officers in going to the probationer‘s residence was for the protection of Mr. Lew and Ms. Johnson. The trial court also found, as a matter of fact, that the tip “that there were . . . or maybe there were guns in the probationer‘s apartment,” did not come from an ordinary patrolman, but rather, it came from a detective on the Beloit Police Department. Based on the evidence before it, the trial court determined that the probation officer acted reasonably in making the search.
The question of whether a search is reasonable is a question of constitutional fact, and we review constitutional questions independent of the conclusions madе by the lower courts. State v. Woods, 117 Wis. 2d 701, 715, 345 N.W.2d 457 (1984). However, the trial court‘s findings of evidentiary or historical facts, relevant to the issue of whether the search was reasonable, will not be upset on appeal unless they are contrary to the great weight and clear preponderance of the evidence. See, Id. at 714-715.
The record before the trial court also supports its finding that this was not a police search. The record shows that Mr. Lew testified that he requested police assistance for protection purposes and that the police did not search. The record shows that upon entering Defendant‘s residence, Mr. Lew went to search the kitchen, Ms. Johnson went to search a bedroom, and the officers went into the living room with the Defendant and his woman friend. Upon entering the living room, Mr. Lew found the gun in a drawer that was apparently broken, and because it was broken, Mr. Lew could see the weapon in the drawer before he opened it. While there is testimony by Mr. Lew that an officer pointed in the direction of the table when Mr. Lew entered thе living room, and testimony by Defendant that an officer informed Mr. Lew that there was a gun in the drawer, this evidence does not turn this into a police search. Mr. Lew testified that he was already headed in that direction. Mr. Lew and Ms. Johnson conducted the search and the police were there for protection purposes.
To determine whether Mr. Lew had “reasonable grounds” to conduct this warrantless search of Defendant‘s residence, we turn to the considerations set forth
Here, Mr. Lew had information that the Defendant may have a weapon, which could have been used to injure or kill another. “That weapons be kept out of the hands of clients is critical for the safety of others. Contraband must also be kept out of the hands of clients so they may be better able to effectively participate in jobs, schooling or training, and other programs.” Note to
By the Court.—The decision of the court of appeals is affirmed.
SHIRLEY S. ABRAHAMSON, J. (dissenting). I agree with the majority that the fourth amendment governs probation searches. I agree with the majority that probationers have an expectation of privacy but that their expectation is not the same as that of other citizens who are not on probation. I agree with the majority that the probation officer must have latitude in
This case does not, however, involve a probation officer making a home visit, which is generally regarded as an important part of the supervision. This case involves a probation officer making a search of the probationer‘s home. This kind of supervision is not usual. As the Department of Health and Social Services has stated, “it is preferable to have searches and seizure conducted by law enforcement authorities, [but] that may not always be feasible or advisable.” Appendix,
I agree with the majority that a full search of the probationer‘s home is permissible without the usual quantum of probable cause. I depart from the majority because I would require that the evidence be suppressed in a criminal case unless the search was conducted by the probation officer with a warrant unless the case falls within one of the traditional exceptions to the warrant rule, e.g., exigent circumstances. The rule under the constitution is that there should be a warrant. That requirement should not be easily cast aside.
I would allow the рrobation officer to search a probationer‘s home if the officer has reasonable cause to believe that the probationer is violating or is in imminent danger of violating a condition of probation and that the officer has reasonable cause to believe that evidence of the violation will be found in the home to be searched. Evidentiary support for the reasonable cause standard need not meet the standards of Gates, or Aguilar-Spinelli. Illinois v. Gates, 462 U.S. 213 (1983);
In deciding whether to issue the warrant and in defining its terms, the judge would take into account the strength of the showing of reasonable cause and such additional factors as the nature of the probation violation suspected, the extent to which persons other than the probationer would have their privacy invaded by the search, and the existence of means less intrusive than the search to meet the probations officer‘s supervisory responsibilities. The issuance of a warrant on this kind of showing is not an undue burden on the probation officer and provides the protection for the probationer guaranteed by the constitutions. Requiring an officer to articulate reasons for the search is a deterrent to impulsive or arbitrary governmental conduct—and that is what thе fourth amendment is about. Upholding the warrant requirements for searches of the probationer‘s home does not impede the dual goals of probation, protecting the public and rehabilitation. Latta, supra 521 F.2d at 257.
Professor LaFave characterizes Judge Hufstedtler‘s dissent in the Latta case as “cogently reasoned.” Search and Seizure, sec. 10.10, p. 441 (1978). I am persuaded by her dissent and the similar reasoning in United States v. Rea, 678 F.2d 382 (2d Cir. 1982).
Even if I were to agree with the majority that no warrant was needed, I would have to dissent because the facts in this case do not satisfy the tests set forth by the majority and the Deрartment of Health and Social Services.
WILLIAM A. BABLITCH, J. (dissenting). The facts in this case do not meet the majority‘s own test for reasonable grounds justifying the probation officers to search Griffin‘s residence for contraband nor do the facts satisfy the Department of Health and Social Services’ (DHSS) standards for reasonable grounds to believe that a probationer possesses contraband.
The only basis for the fullblown, warrantless search of Griffin‘s home by probation officers was the supervisor‘s testimony that a police detective told him that Griffin “may have had guns in his apartment.” Nothing more. We do not know which detective telephoned the probation department with this information. We do not know the source of the detective‘s information. We do not know any fact which indicates thаt the probation supervisor had reason to believe that Griffin ever had anything to do with guns.
The facts in this case fail to satisfy any of nine standards in
For this reason, I cannot conclude that the search of Griffin‘s apartment meets even the minimal standard which the majority now adopts.