This сase comes to us on certification from the court of appeals pursuant to Wis. Stat. Rule 809.61 (2009-10). It requires us to address two questions arising from Tally Ann Rowan's
¶ 2. The facts of this case are important to the circuit court's decision to impose the above condition оn Rowan's extended supervision, as the circuit court noted. Rowan's arrest and convictions resulted from an incident on March 13, 2008, during which a police officer observed Rowan drive erratically, run a stop sign, and crash into a pole. Rowan appeared intoxicated and agitated. She cursed emergency responders, and asked them where her gun was while reaching toward the floor of her car. Police later discovered a semiautomatic handgun and ammunition on the floor of the driver's side of Rowan's car. Rowan was taken to the hospital for medical treatment and a blood draw, where she was placed under arrest. At the hospital, Rowan
¶ 3. The circuit court considered the nature of Rowan's crime — involving violence, threats, and a firearm — and Rowan's conduct prior to and during the trial. The court stated, "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 while she was in this mind set." Further, the court noted that Rowan was charged in a separate case with threatening a judge. There was also testimony from a gun shop owner that Rowan had purchased several guns after the March 13, 2008, incident at issue and before she was sentenced. In prescribing the search condition, the circuit court relied on these facts that reflect Rowan's histоry of violence and threats, which often involved firearms.
¶ 4. We hold that while the condition that the circuit court imposed on Rowan's extended supervision "may impinge on constitutional rights,"
¶ 5. The second question presented by this case concerns the sufficiency of the evidence in regard to Rowan's conviction for battery to a police officer. One of the elements of that crime that must be proved beyond a reasonable doubt is that the officer who is the victim was "acting in an official capacity" at the time of the battery. Rowan argues that the evidence was insuffi
¶ 6. For the reasons stated herein, we affirm the judgment of the circuit court.
¶ 7. The sеries of events that led to Rowan's convictions began when a police officer on patrol started following Rowan's vehicle after seeing her drive erratically and run a stop sign around 2 a.m. on March 13, 2008. Moments later, Rowan crashed into a pole. At the scene of the accident she appeared intoxicated and was highly agitated. She cursed emergency responders and reached toward the floor while asking them where her gun was, apparently trying to locate the semiautomatic handgun that police later recovered from the floor on the driver's side of the vehicle, along with a box of ammunition. At the hospital where Rowan was taken for emergency medical treatment and a blood draw, she was placed under arrest and continued to be combative, сursing, spitting, grabbing medical staff, and threatening to kill them and their families. Before the blood draw when a police officer stationed at the side of her hospital bed attempted to restrain her, Rowan resisted and seriously injured the officer's hand. Rowan was charged with five counts related to the March 13 incident: in one case, she was charged with battery to a law enforcement officer
In this case, I think the argument is fair, if I was saying that with every ease no matter what, [defendant is subject to] search for anything. What I'm going to do is modify that a little bit to say any law enforcement officer can search her person, her premises or any vehicle she is riding in at any time without probable cause to search for a firearm. Limit that infringement on her Fourth Amendment right to firearms. The reason why I'm tailoring is to balance her constitutional rights against achieving these two goals.
This case is notable in certain respects. First of all, it did involve a firearm. It involved a concealed firearm carried in a vehicle. It was a concealed firearm that she threatened to use against an officer at a time when she had possession of it.
She also threatened emergency personnel on the scene. She threatened the doctor in the emergency room. She threatened the officers in the emergency room. She threatened medical staff. She threatened the family of those persons. There is even a discussion about threatening somebody's grandmother .... 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 while she was in this mind set.
Many of those threats included threats to use a firearm. So it was specific to firearms as well. I note in passing that there were other cases involving threats to the judge. I just note that as being a continuation of threatening conduct and specifically threats to Judge Wing, which didn't involve me. That was a continuation of a pattern of threatening behavior. I still don't quite now know what the details of the threats were. It really doesn't matter to me. She was convicted of those two*291 crimes. So I note them as a continuation of that threatening conduct even while she was incarcerated.
I think just having her know at any time she could be searched for the possession of a firearm, and if she would be in illegal possession, it could result in her return to confinement and will aid the rehabilitation goal because it will encourage her to not possess a firearm when she is returned to the community. I also note as a convicted felon she couldn't possess one any way, but I'm not making this order because of her felony status. It's because of the nature of the underlying offense and the facts specific to this particular case.
(Emphasis added.)
II. DISCUSSION
A. THE SUSPICIONLESS SEARCH CONDITION
¶ 9. The first question we address is a challenge to the constitutionality of a condition for a person released into the community under supervision, including those on probation, parole or extended supervision. It is important to highlight the fact that, in the instant case, we analyze the constitutionality of an individualized supervision condition that applies only to Rowan and was imposed by a circuit court pursuant to its authority under Wis. Stat. § 973.01(5)
Both the fourth amendment to the federal constitution and Article I, sec. 11 of the Wisconsin Constitution guarantee citizens the right to be free from "unreasonable searches and seizures." The Wisconsin Supreme Court consistently follows the United States Supreme Court's interpretation of the search and seizure provision of the fourth amendment in construing the same provision of the state constitution.
Id. at 137 (internal citations omitted).
¶ 10. The test set forth for analyzing the constitutionality of conditions of probation has two parts: "[Clonditions 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."
¶ 11. Concerning the first part of the test, the fact that the condition authorizes suspicionless searches by any law enforcement officer for the duration of Rowan's extended supervision does not make the condition
¶ 12. Similarly, in Griffin v. Wisconsin, the United States Supreme Court upheld a Wisconsin regulation that permits warrantless searches of a probationer's home by a probation officer if that officer has "reasonable grounds to believe" that the person possesses contraband.
¶ 13. While the Samson and Griffin decisions did not address the precise question presented here, their holdings support our analysis under the Edwards/
¶ 14. Rowan's extended supervision condition unquestionably impinges on her privacy more than the standard conditions imposed on persons on extended supervision by exposing her to search by law enforcement officers including agents supervising persons on probation, parole or extended supervision. It further impinges on her privacy by eliminating the requirement that would otherwise apply to agents — i.e., that searches of supervised persons must be made "only in accordance with [the procedures set forth in Wis. Admin. Code § DOC 328.21 (June 1999)]."
Examining the totality of the circumstances pertaining to petitioner's status as a parolee, "an established variation on imprisonment," including the plain terms of the parole search condition, we conclude that petitioner did not have an expectation of privacy that society would recognize as legitimate.
The State's interests, by contrast, are substantial. This Court has repeatedly acknowledged that a State has an "overwhelming interest" in supervising parolees because "parolees . .. are more likely to commit future criminal offenses." Similarly, this Court has repeatedly acknowledged that a State's interests in reducing recidivism and thereby promoting reintegration and positive citizenship among probationers and parolees warrant privacy intrusions that would not otherwise be tolerated under the Fourth Amendment.
Samson,
¶ 15. Additionally, even the dissent in Samson suggested that it would have upheld an individualized
¶ 16. In this case, the circuit court had evidence that Rowan had concealed a semiautomatic handgun unlawfully and had possessed ammunition for it as well. At trial, the court heard an audio tape made of Rowan's lengthy threatening rant at the hospital, in which she specifically threatened to find and kill people, including a doctor, police officers, other members of the medical staff, and their family mеmbers. The court heard testimony by a gun shop owner that between the time of the March 13 incident and the day she was charged in the cases, Rowan had purchased several guns. As the court noted, the pattern continued while this case was pending, Rowan was also charged in a separate case with threatening judges in comments she made while in jail. The court went to some effort to articulate carefully the
¶ 17. The court limited its authorization to searches "for firearms," and therefore by implication only to searches where a firearm could be concealed. The circuit court further clarified that the search condition did not dispense with the constitutional requirement that "thе search be done in a reasonable manner."
¶ 18. We next turn to the second part of the test relating to the constitutionality of the condition of extended supervision, including persons released on community supervision such as probation and parole. We conclude that the condition is, under the circumstances presented here, reasonably related to Rowan's rehabilitation. A condition is reasonably related to a person's rehabilitation "if it assists the convicted individual in
¶ 19. For the reasons set forth, we conclude that the condition was limited so that it was not overly broad and was reasonably related to Rowan's rehabilitation. It was therefore permissible under the Fourth Amendment and Wisconsin Constitution Article I, Section 11.
B. THE SUFFICIENCY OF THE EVIDENCE AS TO THE OFFICER ACTING IN AN OFFICIAL CAPACITY AT THE TIME OF THE BATTERY
¶ 20. The second issue presented by this appeal is a challenge to the sufficiency of the evidence to support one element of the crime of battery to a law enforcement officer. As we noted earlier:
The standard of review in determining whether the evidence was sufficient to support a conviction is that "an appellate court may not substitute its judgment for that of the trier of fact unless the evidence, viewed most favorably to the state and the conviction, is so lacking in probative value and force that no trier of fаct, acting reasonably, could have found guilt beyond a reasonable doubt."
Our review of a sufficiency of the evidence claim is therefore very narrow. We give great deference to the determination of the trier of fact. We must examine the record to find facts that support upholding the jury's decision to convict.
State v. Hayes,
¶ 21. We agree with Rowan that the fact that an officer "is acting in an official capacity" is an element of
III. CONCLUSION
¶ 22. The first question concerns a condition imposed as part of Rowan's extended supervision, which she argues is overly broad and violative of her constitutional rights. The certification asks us to determine "whether a sentencing court violated the Fourth Amendment [to the United States Constitution] or Wis. Const. art. I, § 11, by setting a condition of extended supervision that allows any law enforcement officer to search the defendant's person, vehicle, or residence for firearms, at any time and without probable cause or reasonable suspicion."
¶ 23. The facts of this case are important to the circuit court's decision to impose the above condition on Rowan's extended supervision, as the circuit court noted. Rowan's arrest and conviction resulted from an incident on March 13, 2008, during which a police officer observed Rowan drive erratically, run a stop sign, and crash into a pole. Rowan appeared intoxicated and agitated. She cursed emergency responders, and asked them where her gun was while reaching toward
¶ 24. The circuit court considered the nature of Rowan's crime — involving violence, threats, and a firearm — and Rowan's conduct prior to and during the trial. The court stated, "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 while she was in this mind set." Further, the court noted that Rowan was charged in a separate case with threatening a judge. There was also testimony from a gun shop owner that Rowan had purchased several guns after the March 13, 2008, incident at issue and before she was sentenced. In prescribing the search condition, the circuit court relied on these facts that reflect Rowan's history of violence and threats, which often involved firearms.
¶ 25. We are satisfied that while the condition that the circuit court imposed on Rowan's extended supervision "may impinge on constitutional rights," it does not violate them. The supervision condition imposed in this case does not violate Rowan's constitutional rights because the circuit court made an individualized determination, pursuant to the circuit court's authority under Wis. Stat. § 973.01(5), that the condition was necessary based on the facts in this case — involving violence, threats, and a firearm. It conforms with the applicable two-part test — that it is "not overly broad" and that it is
¶ 26. The second question presented by this case concerns the sufficiency of the evidence in regard to Rowan's conviction for battery to a police officer. One of the elements of that crime that must be proved beyond a reasonable doubt is that the officer who is the victim was "acting in an official capacity" at the time of the battery. Rowan argues that the evidence was insufficient on that element, because the evidence showed that the officer was assisting a nurse who was performing a medical procedure, which she claims is not what the officer is employed to do. The State argues that in
¶ 27. For the reasons set forth, we affirm the judgment of the circuit court.
By the Court. — Affirmed.
Notes
Rowan was convicted of battery to a police officer, contrary to Wis. Stat. § 940.20(2) (2007-08); obstructing an officer, contrary to Wis. Stat. § 946.41(1); carrying a concealed weapon, contrary to Wis. Stat. § 941.23; operating a motor vehicle while under the influence of an intoxicant and operating a motor vehicle with a prohibited alcohol concentration (PAC), contrary to Wis. Stat. § 346.63(1)(a) and § 346.63(1)(b).
All subsequent references to the Wisconsin Statutes are to the 2007-08 version unless otherwise indicated.
Edwards v. State,
State v. Oakley,
Samson v. California,
Id. at 852-53.
State v. Hayes,
The standard of rеview in determining whether the evidence was sufficient to support a conviction is that "an appellate court may not substitute its judgment for that of the trier of fact unless the evidence, viewed most favorably to the state and the conviction, is so lacking in probative value and force that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt."
Our review of a sufficiency of the evidence claim is therefore very narrow. We give great deference to the determination of the trier of fact. We must examine the record to find facts that support upholding the jury's decision to convict.
Wisconsin Stat. § 940.20(2) (2007-08) states,
Whoever intentionally causes bodily harm to a law enforcement officer ... acting in an official capacity and the person knows or has reason to know that the victim is a law enforcement officer... by an act done without the consent of the person so injured, is guilty of a Class H felony.
The court had initially phrased the condition slightly differently. At the sentencing, the court had stated that the conditions (as relevant to this appeal) were "No possession of firearms or ammunition" and "Defendant must consent to a search at any time." [R. 82] In response to a post-conviction motion by Rowan requesting that the conditions be modified to delete the consent-to-search requirement, the court stated on the record (and asked the clerk to verify the statement by reading it back to the courtroom) that the condition should be reworded to state, "The defendant'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]."
As counsel for Rowan acknowledged at oral argument before this court, it was evident in the context of the hearing that the circuit court intended for the term "law enforcement officer" to encompass agents who supervise persons on probation, parole or extended supervision. The transcript of the hearing shows that Rowan's counsel said, "I would ask on behalf of Ms. Rowan that police officers and field staff of the Department of Corrections have to have reasonable suspicion. The concern I have if it just states [']may search at any time for a firearmf] that as a practical matter would allow them to search at any time. There would be no kind of restrictions or no proteсtion of her privacy....” (Emphasis added.) In response, the circuit court states, in part, "The message I would rather have in Tally Rowan's mind is, I have no idea when they can come in, and they can come in to search for a firearm even without reasonable suspicion." The court in its response made no distinction between the two categories mentioned by counsel.
Wisconsin Stat. § 973.01(5) provides: "Extended supervision conditions. Whenever the court imposes a bifurcated sentence under sub. (1), the court may impose conditions upon the term of extended supervision."
Oakley,
Oakley,
See Samson,
Cal. Penal Code § 3067(a) (West 2000) states, "Any inmate who is eligible for release on parole. . . shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause." We note that the condition at issue here does not require Rowan's consent or agreement to search, and makes Rowan's "person or her residence or her vehicle subject to search for a firearm at any time. .. ." The circuit court initially described Rowan's supervision condition as "[c]onsent to search of your person, any premises you occupy or any vehicles you occupy at any timе without probable cause." The circuit court later modified the condition and removed the consent-to-search reference.
Samson,
Samson,
Cal. Penal Code § 3067(d) states, "It is not the intent of the Legislature to authorize law enforcement officers to conduct searches for the sole purpose of harassment."
Samson,
Id at 852-53.
Id. at 875-76. We note that the regulation at issue in Griffin, Wis. Admin. Code § DOC 328.21 (June 1999), allows only probation agents, not police officers, to conduct a search on the basis of reasonable suspicion that a probationer has contraband. See State v. Hajicek,
Wisconsin Admin. Code § DOC 328.21(1) states,
General policy. A search of a client, the client's body contents or the client's living quarters or property may be made at any time, but only in accordance with this section.
(2) Personal search, (a) In this subsection, "personal search" means a search of a client's person, including but not limited to the client's pockets, frisking the client's body, an examination of the client's shoes and hat, and a visual inspection of the client's mouth.
(b) A personal search of a client may be conducted by any field staff member:
1. If the staff member has reasonable grounds to believe that the client possesses contraband;
2. At the direction of a supervisor;
3. Before a client enters and after a client leaves the security enclosure of a correctional institution, jail or detention facility; or
4. When a client is taken into custody.
(c) A written report of еvery personal search shall be prepared by the staff member who conducted the search and shall be filed in the client's case record.
(3) Search of living quarters or property, (a) A search of an offender's living quarters or property may be conducted by field staff if there are reasonable grounds to believe that the quarters or*297 property contain contraband or an offender who is deemed to be in violation of supervision. Approval of the supervisor shall be obtained unless exigent circumstances, such as suspicion the offender will destroy contraband, use a weapon or elude apprehension, require search without approval.
(b) There shall be a written record of all searches of a client's living quarters or property.
Samson,
See supra ¶ 11 and note 14 (noting that Samson,
Oakley, 245 Wis. 2d 447, ¶ 21.
Edwards,
Hayes,
Samson,
Id. at 852-53.
Hayes,