STATE of Wisconsin, Plaintiff-Respondent, v. Colleen (NMI) WEST, Defendant-Appellant.†
No. 92-1017-CR
Court of Appeals
Submitted on briefs March 11, 1993.—Decided September 2, 1993.
507 N.W.2d 343
†Petition to review granted.
For the plaintiff-respondent the cause was submitted on the briefs of James E. Doyle, attorney general, and Gregory M. Posner-Weber, assistant attorney general.
Before Eich, C.J., Dykman and Sundby, JJ.
SUNDBY, J. In Griffin v. Wisconsin, 483 U.S. 868 (1987), the United States Supreme Court held that the warrantless, nonconsensual search of a probationer‘s home by state probation officers pursuant to
West also claims that the record does not show that a Minnesota forgery conviction was a crime which the trial court could consider under
BACKGROUND
Defendant West was charged in a criminal complaint and information with sixty-eight counts of misdemeanor and felony theft, each as a repeat offender.
It is undisputed that neither Clark nor West consented to the search. The search was conducted by Clark‘s Probation and Parole Agent James Trameri, City of Madison Police Department Detective Mark Twombly, and two other police officers. Defendant Colleen West was present and objected to the search.
In their search of the apartment, the officers discovered numerous items of electronic equipment and recorded the serial numbers. The police later determined that some of the items seen in the apartment had been reported stolen. They obtained a search warrant which they executed on December 1, 1988, finding the apartment empty. West later told the police that she had moved the contents to a storage locker. She
The trial court denied West‘s motion to suppress the evidence seized as a result of these searches. West then entered negotiated pleas to five counts of the information, all of which charged felonies. West did not file a motion for postconviction relief under
STANDARD OF REVIEW
Whether the search of the apartment West shared with Clark violated her right to be free from an unreasonable search under the fourth amendment is a question of constitutional law which we review independently and without deference to the circuit court, except insofar as the conclusions of the circuit court may be persuasive. State v. Guzman, 166 Wis. 2d 577, 586, 480 N.W.2d 446, 448 (1992), cert. denied, 119 L.Ed.2d 575 (1992).
West‘s argument that the record is insufficient to support the state‘s repeater allegation requires application of
(1) General Policy. A search of a client or the client‘s living quarters or property may be made at any time, but only in accordance with this section.
. . . .
(3) Search of Living Quarters or Property. (a) A search of a client‘s living quarters or property may be conducted by field staff if there are reasonable grounds to believe that the quarters or property contain contraband. Approval of the supervisor shall be obtained unless exigent circumstances, such as suspicion the parolee will destroy contraband or use a weapon, require search without approval.
“Client” “means a person who is committed to the custody of the department [of corrections] for correctional purposes and is under field supervision of the department . . . .”
In Griffin, the Court held that the Wisconsin Administrative Code rules and regulations authorizing the department‘s employees to conduct a warrantless search of a probationer‘s living quarters satisfied the fourth amendment‘s reasonableness requirement. 483 U.S. at 872-73. West does not challenge Griffin‘s correctness. She argues that her rights were not affected
West further argues that “all doubts regarding this matter have been resolved by the . . . recent United States Supreme Court decision in Minnesota v. Olson, [495 U.S. 91 (1990)].” In Olson, the police made a warrantless, nonconsensual entry into a house where Olson was an overnight guest, and arrested him. The Court held that the arrest violated Olson‘s fourth amendment rights. The Court said that Olson‘s status as an overnight guest was enough to show that he had an expectation of privacy in the home that society is prepared to recognize as reasonable. 495 U.S. at 96-97. West argues that if she would have had a reasonable expectation of privacy had she been Clark‘s overnight guest, “it is very clear that her status as regular resident, exercising full dominion and control confers standing on her.”
The state asserts that Olson holds that an overnight guest‘s expectation of privacy is derived from the host‘s degree of control over the premises. We disagree. Olson holds that the guest‘s expectation of privacy is analyzed from the guest‘s perspective. The Court said: “From the overnight guest‘s perspective, he seeks shelter in another‘s home precisely because it provides him with privacy, a place where he and his possessions will not be disturbed by anyone but his host and those his
There are few decisions on the effect of a parolee‘s or probationer‘s status upon the privacy rights of those who live with the parolee or probationer. The state asks us to adopt the reasoning of Russi v. Superior Court of Napa County, 33 Cal. App. 3d 160, 168-69, 108 Cal. Rptr. 716, 720-21 (1973), and later decisions of the California Court of Appeals. In Russi, a cotenant of a probationer contended that as to him, a warrantless, nonconsensual search of the premises was constitutionally unreasonable because he did not consent to the search or waive his fourth amendment rights. The court rejected Russi‘s contention, holding that “if the entry and search was reasonable and lawful as to the probationer cotenant, [Russi‘s] consent is irrelevant and he is in no position to claim that the officers did not have the right to search the premises and seize any contraband discovered in the process.” Id. at 168, 108 Cal. Rptr. at 720 (emphasis in original). As to the narcotics and drug paraphernalia seized by the police in their search, the court said:
There would be a gross moral and legal incongruity in a requirement that police blind themselves to evidence discovered in a lawful search that may implicate a third person while the use of the same or other evidence is permitted against a probationer
who faces both a new prosecution and revocation of probation.
Id. at 169, 108 Cal. Rptr. at 720-21.
While we agree with the result reached by the California Court of Appeals, we disagree with the court‘s apparent assumption that the issue was Russi‘s “standing” to object to the search. The “standing” analysis of fourth amendment violation claims was rejected by the United States Supreme Court in Rakas v. Illinois, 439 U.S. 128, 138-48 (1978). The appropriate analysis is whether the person claiming fourth amendment protection against an unreasonable search has a legitimate expectation of privacy in or to the property or person searched. Whether the person invoking the protection of the fourth amendment can claim a legitimate expectation of privacy “normally embraces two discrete questions.” Smith v. Maryland, 442 U.S. 736, 740 (1979). The first is whether the individual, by his or her conduct, has “exhibited an actual (subjective) expectation of privacy.” Id. (quoting Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)). The second question is whether the individual‘s subjective expectation of privacy is “legitimate,” that is, “one that society is prepared to recognize as ‘reasonable’ “: “whether . . . the individual‘s expectation, viewed objectively, is ‘justifiable’ under the circumstances.” Id. (quoting Katz, 389 U.S. at 353).
West testified that Trameri told her that “he was there to do a search on Paul Clark.” She told the officers that she lived there, not Clark. She further testified that Twombly then told her that he was going to do the search on Clark and if she didn‘t step aside she would be arrested for obstruction. We are satisfied that West exhibited a subjective expectation of privacy.
In addition to Griffin, the Skinner Court cited several decisions in which the Court concluded that the government interest outweighed privacy interests: New York v. Burger, 482 U.S. 691, 699-703 (1987) (search of premises of certain highly regulated businesses); O‘Connor v. Ortega, 480 U.S. 709, 721-25 (1987) (work-related searches of employees’ desks and offices); New Jersey v. T.L.O., 469 U.S. 325, 337-42 (1985) (search of students’ property by school officials); and Bell v. Wolfish, 441 U.S. 520, 558-60 (1979) (body cavity searches of prison inmates). In Skinner, the Court concluded that regulations adopted by the Federal Railroad Administration authorizing railroads to administer breath and urine tests to employees who
Griffin‘s reasoning applies equally to the parole system. There is “no constitutional difference between probation and parole for purposes of the fourth amendment.” United States v. Hill, 967 F.2d 902, 909 (3d Cir. 1992) (quoting United States v. Harper, 928 F.2d 894, 896 n.1 (9th Cir. 1991)). “In fact, parole may be an even more severe restriction on liberty because the parolee has already been adjudged in need of incarceration.” Id. (citing United States v. Cardona, 903 F.2d 60, 63 (1st Cir. 1990), cert. denied, 498 U.S. 1049 (1991)). Thus, the ” ‘special needs’ of probation would appear to be heightened for parole.” Id. (citing Harper, 928 F.2d at 896 n.1).
The “special needs” identified by the Griffin Court include that the delay inherent in obtaining a warrant makes it more difficult for probation officials to respond quickly to evidence of misconduct, and reduces the deterrent effect that the possibility of expeditious search would otherwise create. 483 U.S. at 876. Also, a probation officer is to have in mind the welfare of the probationer, to provide individualized counselling for the client, to monitor the client‘s progress and evaluate the need for continuation of services provided by other governmental agencies. Id. at 876-77.
LaFave finds unconvincing the Griffin majority‘s reasoning that “the special needs of Wisconsin‘s probation system make the warrant requirement impracticable.” 4 W. LAFAVE, SEARCH AND SEIZURE § 10.10, at 24 (2nd ed. 1993 Supp.). Another commentator who surveyed a sample group of Wisconsin probation and parole officers concluded:
There is reason to be fearful of the Supreme Court‘s willingness to validate a waiver of the warrant requirement for a large and diverse group of citizens based on undocumented contentions about probation supervision. Contrary to the Griffin majority‘s assumption, a warrant requirement imposed for non-emergency searches would not unduly burden Wisconsin probation departments because agents reported that they need to utilize their search power rather infrequently.
Comment, Conflicting Perspectives from the Bench and the Field on Probationer Home Searches—Griffin v. Wisconsin Reconsidered, 1989 WIS. L. REV. 607, 664 (1989).
LaFave suggests that Justice Blackmun, speaking for three members of the Griffin Court, effectively countered the majority‘s conclusion that a warrant requirement would interfere to an appreciable degree with Wisconsin‘s probation system. LAFAVE § 10.10, at 25. Justice Blackmun stated:
There is nothing about the status of probation that justifies a special exception to the warrant requirement under these circumstances. If in a particular case, there is a compelling need to search the home of a probationer without delay, then it is possible for a search to be conducted immediately under the established exception for exigent circumstances. There is no need to create a separate warrant requirement for probationers. The existing exception provides a probation agent with all the flexibility the agent needs.
483 U.S. at 885 (emphasis in original).
It is tempting to apply the Griffin dissent‘s reasoning to West. She is not subject to
Nonetheless, we conclude that West, because she knew of Clark‘s parolee status, did not have a legitimate expectation of privacy in the living quarters she shared with Clark. To accord her that expectation of privacy would emasculate the special needs of Wisconsin‘s probation and parole system. We agree with the conclusion of the Utah Supreme Court in State v. Johnson, 748 P.2d 1069, 1073 (Utah 1987), where the court said:
A warrantless search of a parolee may result in an invasion of privacy, at least to some extent, for those living with the parolee. If the Fourth Amendment rights of nonparolees living with parolees were reduced, a parolee could avoid all warrantless parole searches by living with a nonparolee and asserting the nonparolee‘s constitutional rights, and thus emasculate one significant feature of the parole system.
LaFave cites Johnson and United States v. Davis, 932 F.2d 752 (9th Cir. 1991),3 to support the following statement:
If the probationer or parolee is sharing living quarters with someone else not on conditional release, the search may nonetheless extend to all parts of the premises to which the probationer or parolee has common authority.
LAFAVE § 10.10, at 21 n.70.1. We do not hold that a person who shares living quarters with a probationer or parolee can never have a legitimate expectation of privacy in any portion of the shared premises or in the person‘s private property located on the premises. It may be that the person whose liberty is not conditionally restricted will have so separated his or her living quarters or personal property that they cannot be considered the “client‘s living quarters or property” under
In her brief, West mentions in passing that none of the procedures set forth in
II. WEST‘S REPEATER STATUS
West claims that the record does not support that her 1985 Minnesota conviction for forgery satisfied the requirements of
The criminal information herein charged that:
[I]nvoking the provisions of Section 939.62 of the Wisconsin Statutes, the Defendant, COLEEN “NMI” WEST, was previously convicted of the following offense(s): Convicted in Hennepin County District Court on May 30, 1985, of the crime of Forgery, contrary to the Minnesota Statutes, which conviction(s) remain of record and unreversed; and, therefore, upon conviction of the charged offense and proof of repeater, may be imprisoned for an additional six (6) years.
By the Court.—Judgment affirmed.
DYKMAN, J. (dissenting). The majority views this case as a choice between denying fourth amendment protection to those who live with probationers or parolees and providing a safe haven for probationers and parolees, undercutting Griffin v. Wisconsin, 483 U.S. 868 (1987). Were that choice necessary, this would be a more difficult case. But it is not. What the majority has done is to set up a straw man, and then, with reluctance, tear it down. I believe that we can simultaneously follow Griffin, deny probationers and parolees full fourth amendment protection, and yet grant that protection to all other citizens. Therefore, I dissent.
The majority worries that the fourth amendment rights of a person living with a parolee would transfer to the parolee, entitling the parolee to assert those rights. That was the Utah Supreme Court‘s theory in State v. Johnson, 748 P.2d 1069, 1073 (Utah 1987). The Utah court concluded that a parolee could avoid all warrantless parole searches by living with a nonparolee. There is no logic to this reasoning. Griffin holds that parolees and probationers have limited
The search of the apartment did not produce evidence which incriminated Clark. This case is not a review of Clark‘s parole revocation, nor is it a review of charges brought against Clark. This is a criminal action against West, and the evidence sought to be suppressed incriminated West, not Clark.1 The question is not, as the majority suggests, whether we should apply Griffin‘s reasoning to West, but whether a person forfeits his or her fourth amendment protections by choosing to live with a probationer or parolee. By attacking a straw man, the majority avoids the real question posed by this case.
Because it is not necessary to abrogate West‘s fourth amendment rights to ensure that Clark cannot avoid Griffin, Clark and his status need not be considered in analyzing the search of the apartment. The proper analysis is not difficult. Three police officers and a probation and parole agent searched West‘s residence without a warrant, without exigent circumstances, and without West‘s permission. That is exactly the type of search prohibited by the fourth amendment. The result is that the evidence seized in the search must be sup-
In State v. Griffin, 126 Wis. 2d 183, 206, 376 N.W.2d 62, 73 (Ct. App. 1985) (Dykman, J., dissenting), aff‘d, 131 Wis. 2d 41, 388 N.W.2d 535 (1986), aff‘d, 483 U.S. 868 (1987), I noted in dissent that probationers may achieve their status as a result of convictions for disorderly conduct, drunk driving, and fish and game law violations. Many persons are convicted of issuing worthless checks and placed on probation. A person who makes a bet can be placed on probation, as can a person who drinks intoxicants while a passenger on a common carrier. Persons convicted of possessing small amounts of marijuana are commonly placed on probation. The majority has concluded that the parents, grandparents, siblings, roommates and spouses of persons convicted of any of these crimes have forfeited their fourth amendment rights if they continue living with their children, grandchildren, siblings, roommates or spouses.
The majority may be convinced that society is prepared to accept as reasonable the nighttime breaking down of parents’ doors and the subsequent search of the home while the occupants are handcuffed, with the only justification being that a teenage son is on probation for possessing a marijuana cigarette.2 I am not so convinced.