*1 Plaintiff-Respondent, Wisconsin, State (NMI) Defendant-Appellant.† Colleen West, Appeals
Court of on March No. 92-1017-CR. Submitted briefs 2, 1993. September 1993.—Decided 343.) (Also reported in N.W.2d granted. to review †Petition *2 defendant-appellant sub- the cause was For the Jeffrey D. on briefs of Knickmeier mitted Stoughton. plaintiff-respondent the cause submit-
For was Doyle, attorney general, on the of James E. ted briefs attorney Gregory Posner-Weber, assistant and general. M. Dykman Sundby, Eich, C.J., Before JJ. *3 SUNDBY, Wisconsin, J. 483 U.S. Griffin (1987), Supreme Court held that the United States proba- search of a warrantless, nonconsensual by probation pursuant home state officers tioner's 328.21(3) (1981), HSS not an Wis. Adm. Code sec. was under fourth amendment unreasonable search United Constitution. In this case we decide States apart- West, that defendant Colleen who shared an by parolee Clark, did have a ment rented Paul not legitimate expectation privacy precluded which a apartment parole searching pursuant from the 328.21(3)(a) officer sec. DOC to Wis. Adm. Code without obtaining We consent and without a search warrant. by property subsequently further hold that seized police not an as a of such search was the fruit of result unreasonable search.
West claims that the record does not show also forgery that Minnesota conviction was crime which 939.62(3)(b), trial sec. court could consider under Stats., to enhance her sentence. We conclude that her plea charges no contest to the in the criminal informa- repeater allegation tion which contained a constituted repeater an allegation. 973.12, admission under sec. Stats., of the reject We therefore West's claims and judgment. affirm the trial court's
BACKGROUND charged Defendant West was in a criminal com- plaint sixty-eight and information with counts of felony repeat misdemeanor and theft, each as a offender. Sections charged 939.62, 943.20 and Stats. She was personal property during
with theft of found apartment November 1988 search of an West parolee1 pur- shared with Clark, Paul and later seized suant to a search warrant. At the time of the search, jail. Clark was in undisputed
It is that neither Clark nor West con- sented to the search. The search was conducted Agent Clark's Probation and Parole Trameri, James City Department of Madison Police Detective Mark Twombly, police and two other officers. Defendant Col- present objected leen West was to the search. apartment, In their search of the the officers dis- equipment covered numerous items of electronic recorded the serial numbers. The later deter- apartment mined that some of the items seen in the reported They had been stolen. obtained a search war- they finding rant which executed on 1,1988, December *4 apartment empty. police the West later told the storage she had moved the contents to a locker. She 1 suppression At the hearing, West testified that when she got involved with Clark in leasing apartment the she knew parole. Clark was on
185 storage of the locker which consented to a search majority previously items seen the revealed a of the apartment. The seized items. the officers suppress motion The trial court denied West's a result of these searches. West the evidence seized as negotiated pleas to five counts of then entered charged of West did not information, all which felonies. postconviction 809.30, file a for relief under sec. motion judgment appeals She from the Stats. conviction sentence. OF REVIEW
STANDARD apartment Whether the search of West shared right Clark free from an unrea- violated be is a sonable search under the fourth amendment question inde- of constitutional law which we review pendently court, and without deference to circuit except as conclusions of the circuit court insofar may persuasive. 577, Guzman, State v. 166 2dWis. 448, cert. 119 575 586, 480 (1992). 446, denied, L.Ed.2d N.W.2d argument is insufficient to West's record requires appli- support repeater allegation the state's undisputed 973.12, Stats., to the facts. cation sec. application undisputed facts of a statute presents question law, which also decide with- we out deference to the trial Guertin v. Harbour court. 622, 627, 415 Co., Assurance Wis. 2d N.W.2d (1987). *5 I. FIELD THE SUPERVISION SEARCH provides: Wisconsin Adm. Code sec. DOC 328.21 (1) Policy. General A of a the search client or living quarters property may client's or be made at time, but any only in accordance this section.
(3) (a) Living Quarters Property, Search of or A living quarters property search of a client's or may by be conducted field staff if there are reason- grounds quarters able the or believe super- contain property Approval contraband. the exigent shall visor obtained unless circumstances, such as the will suspicion or destroy weapon, require contraband use a approval. without person
"Client" "means a who to the cus- is committed tody department [of corrections] of the for correctional purposes depart- supervision field and under of the 328.03(5). ment . . . Wisconsin sec. ." Adm. Code DOC parolee. Thus, "client" "Field includes staff' "means professional paraprofessional and workers [department] assigned responsibility for the con- supervision, provision program trol, services to 328.03(18). clients." Wisconsin Adm. Code sec. DOC parole agents probation staff Thus, "field includes officers. Griffin, the Court held the Wisconsin regulations authorizing
Administrative Code rules and department's employees to conduct a warrantless probationer's living quarters search of satisfied requirement. fourth amendment's reasonableness challenge U.S. at 872-73. West does not cor- Griffin's argues rights rectness. She that her were not affected right had no Clark's status and that authorities *6 upon to Adm. Code sec. DOC 328.21 based Wis. dwelling without a warrant and her residence and her consent.2 without argues regarding that doubts this further "all
West
. . . recent United
matter have been resolved
the
Supreme
Olson,
in
Court decision Minnesota
States
(1990)]."
police
[495
Olson,
the
made
U.S. 91
entry into
house where
warrantless, nonconsensual
overnight guest,
The
arrested him.
Olson was an
the
Olson's fourth
Court held that
arrest violated
rights.
that
amendment
The Court said
Olson's status
overnight guest
enough to
that
had
as an
was
show
he
society
privacy
expectation
in
home that
an
of
the
recognize
prepared
of she been Clark's had regular guest, very resi- "it is clear that status as exercising dent, full and control confers dominion standing on her." holds that an over-
The state asserts that Olson night expectation privacy guest's is derived from the of disagree. degree premises. the We host's of control over guest's privacy expectation of Olson holds that the analyzed guest's perspective. The Court said: from the overnight guest's perspective, he seeks shel- "From the precisely provides him it ter another's home because privacy, possessions place he his will where by anyone his but his host and those not be disturbed parole the trial court found that which apartment The court searched was Clark's residence. officer and hers, exclu rejected that the residence was West's claim dispute of not West's statement sion Clark. The state does together lived at agent Trameri she and Clark apartment. expectation
host allows inside." Id. at 99. West's privacy pos- was based on her belief that she and her by anyone sessions could not be disturbed because the living quarters she shared with Clark were her home. only expectation pri- However, West had a limited vacy parolee because Clark's status as a allowed department field staff to make a warrantless, noncon- living quarters, sensual search of Clark's which West knowledge parolee shared in full of Clark's status. parolee's There are few decisions on the effect of a probationer's upon privacy rights or status of those probationer. who live with the or The state adopt reasoning Superior asks us to of Russi v. Napa County, App. Court 33 Cal. 3d 160, 168-69, 108 Rptr. (1973), *7 716, 720-21 Cal. and later decisions of the Appeals. California Court of a cotenant of Russi, a probationer him, contended that as to warrantless, premises nonconsensual search of the was constitu tionally unreasonable because he did not consent to the rights. search or waive his fourth amendment The rejected holding court Russi's contention, that "if the entry and search was reasonable and lawful as to the probationer [ñussi's] cotenant, consent is irrelevant position and he is in no to claim that the officers did not right premises any have the to search the and seize process." contraband 168, discovered in the Id. at 108 Rptr. (emphasis original). Cal. at 720 in As to the nar drug paraphernalia by police cotics and seized the in search, their the court said:
There gross legal incongruity would be a moral and requirement that blind themselves to evidence discovered in a lawful that may search implicate person a third while the use of the same or permitted other against probationer evidence is revocation of prosecution both a new who faces probation. 720-21.
Id. at
Cal.
at
169, 108
Rptr.
with the result reached
Cal-
agree
by
While we
of
the court's
Appeals,
disagree
ifornia Court
we
Russi's
the issue was
assumption
apparent
to the search.
anal-
"standing"
object
"standing"
ysis
rejected
of fourth amendment violation claims was
Court in Rakas v. Illi
by the United States Supreme
(1978). The
nois,
128,
439 U.S.
138-48
appropriate
fourth amend
analysis
person claiming
is whether
has a
ment
an unreasonable
protection against
in or
the property
of
legitimate expectation
privacy
person invoking
or
searched. Whether
person
claim a legiti
of the fourth amendment
can
protection
embraces
two
expectation
privacy "normally
mate
Smith Maryland,
736,
442 U.S.
discrete questions."
(1979).
individual,
his
The first is
whether
an
conduct,
(subjective)
or her
has "exhibited
actual
Id.
Katz v. United
privacy."
(quoting
expectation
(1967) (Harlan,
States,
concur-
J.,
389 U.S.
is
The second
whether
individual's
question
ring)).
is
expectation
privacy
"legitimate,"
subjective
'reason-
is,
as
society
prepared
recognize
"one that
. .
expectation,
able'
"whether
.
the individual's
under
the circum-
'justifiable'
viewed objectively,
353).
Katz,
stances." Id. (quoting
389 U.S. at
*8
"he
that Trameri
told her that
was
West testified
on
told the officers
there to do a search
Paul Clark." She
there,
she lived
not Clark. She further
testified
that
told
he
to do the
then
her that
was
Twombly
going
if
on Clark and
she didn't
aside she would
step
for
We
that West
be arrested
obstruction.
are satisfied
of
subjective
privacy.
exhibited a
expectation
190
expec-
However, we
not
are
convinced that West's
privacy
society
prepared
tation
is one that
recognize
undisputed
reasonable.
as
It
that Clark
apartment
leased the
and that he lived there with
parolee.
legitimacy
West. West knew Clark
awas
expectation
against
of West's
must
tested
knowledge.
opera-
In
the Court
"A
Griffin,
said:
State's
probation system,
operation
tion of a
like
of school,
its
government
prison,
supervision
reg-
office or
or its
of a
industry
presents 'special
beyond
.
ulated
. .
needs'
may justify departures
normal law enforcement that
probable-cause require-
from the usual warrant and
Railway
ments."
In addition to the Skinner Court cited Griffin, sev- eral decisions in which the Court concluded that government outweighed privacy interest interests: (1987) Burger, 691, New York v. 482 U.S. 699-703 (search premises highly regulated of certain busi- nesses); Ortega, O'Connor v. 709, 480 U.S. 721-25 (1987) (work-related employees' searches desks and offices); Jersey T.L.O., 325, New 469 U.S. 337-42 (1985) (search officials); property by of students' school (1979) (body and Bell v. Wolfish, U.S. 558-60 inmates). cavity prison searches of Skinner, regulations adopted Court concluded that the Fed- authorizing eral Railroad Administration railroads employees administer breath and urine tests who *9 employ- safety rules did not violate the violated certain rights. ees' fourth amendment equally parole reasoning applies to the Griffin's system. difference There "no constitutional between parole probation purposes for of the fourth amend (3d 902, Hill, States v. 967 F.2d 909 Cir. ment." United 1992) Harper, (quoting 894, 928 States v. F.2d United 1991)). (9th parole may fact, "In be an even 896 n.1 Cir. liberty restriction on because the more severe adjudged already in need of incarceration." has been (citing Cardona, States v. 903 F.2d 63 Id. United (1st (1991)). 1990), denied, 498 1049 Cir. cert. U.S. 'special probation appear to Thus, would the" needs' heightened parole." (citing Harper, Id. 928 F.2d for be n.1). at 896 "special Court identified needs" Griffin delay obtaining in a warrant
include that the inherent probation more difficult for officials makes it respond quickly misconduct, and reduces to evidence possibility expeditious the deterrent effect that Also, 483 at 876. search would otherwise create. U.S. probation of the officer is to have mind the welfare counselling probationer, provide for individualized progress client, to monitor the client's and evaluate provided by other the need for continuation of services governmental agencies. at Id. 876-77. unconvincing majority's
LaFave finds the Griffin reasoning special proba- needs of Wisconsin's "the requirement system tion make the warrant impracticable." 4 W. LaFave, AND Search SEIZURE (2nd Supp.). § 10.10, ed. Another commenta- at surveyed sample group who tor probation of Wisconsin parole officers concluded: Supreme fearful of the There reason *10 to war- willingness Court's validate a waiver of the for large group rant a and diverse of requirement based on about citizens undocumented contentions probation supervision. Contrary to the Griffin assumption, majority's requirement a warrant imposed for non-emergency searches would not unduly probation departments burden Wisconsin agents reported because that they need to utilize power their search rather infrequently. the Bench Conflicting and
Comment, Perspectives from the Field on Probationer Home Searches — Griffin Wisconsin Reconsidered, 1989 Wis. L. Rev. 664 (1989). Blackmun,
LaFave that Justice suggests speaking for three of Court, effectively members the Griffin countered the majority's conclusion a warrant would interfere to an requirement appreciable degree at probation system. 10.10, with Wisconsin's LaFave § 25. Justice Blackmun stated: about the status nothing probation
There is justifies a special require- to exception the warrant ment under in particular these circumstances. If a case, compelling there is a need home to search the of probationer delay, a it is for possible without then to immediately search be conducted under the exception exigent established for circumstances. There is no to a separate need create warrant requirement probationers. existing excep- for provides probation tion agent all flexibility agent needs. 885 (emphasis
483 U.S. at in original). It dissent's reason- tempting apply Griffin to West. She is not Code ing subject Wis. Adm. sec. DOC The "special 328.21. needs" of Wisconsin’s proba- do not to her. The fourth system apply and parole
tion Smith, not people, places." amendment "protects States, 389 U.S. at Katz v. United at (quoting U.S. 351-53). effect of an is not deterrent subject West it not her for contraband expeditious agent officer or has parole welfare which probation in mind. West, she
Nonetheless, conclude that because we status, did not have legiti- knew of Clark's in the she living expectation privacy quarters mate Clark. To accord that expectation shared with of Wiscon- special would emasculate the needs privacy agree We with the parole system. sin's probation *11 in State v. Court conclusion of the Utah Supreme (Utah Johnson, 748 P.2d 1987), the where said: court in may
A a result parolee search of warrantless extent, for privacy, of at least to some an invasion If Fourth Amend- living parolee. those with the the of rights nonparolees living parolees ment all reduced, parolee not could avoid warrant- were by living nonparolee parole less searches with a rights, asserting nonparolee's the constitutional the significant one feature of and thus emasculate parole system. Davis, States v.
LaFave cites Johnson and United
(9th
1991),3
following
the
3 Davis, Appeals that the In the Ninth Circuit Court of held apart legitimate expectation privacy in an had a defendant key had to the occupied by probationer because he ment safe, free to apartment, things there in a locked and was stored held, go pleased. he F.2d at 757. The court come and as however, reasonably suspected the could have that probationer or parolee sharing living
If the quarters with someone else not on conditional release, may the nonetheless extend all parts premises probationer the the which or parolee has common authority. § 10.10, at 21 n.70.1. do not hold We that a
LaFave person living quarters probationer who shares with a legitimate expectation or can never have a privacy any portion premises of the shared or in the person's private property premises. located on the It may person liberty be that the whose is not condition- ally separated living restricted will so her have his or quarters personal property they or cannot be con- living quarters property" sidered the "client's or under 328.21(1). Wis. Adm. Code sec. DOC passing brief, West mentions in that none of procedures set forth in sec. Wis. Adm. Code DOC 328.21 were followed and "Clark was not informed of search, etc." Wisconsin Adm. Code sec. DOC 328.21(5), provides: "Whenever feasible before a search section, conducted under this shall be client why occur, informed that a search is about to and how place search will be conducted where any However, search is to occur." West does not cite to point in the record which establishes Clark was not 809.19(l)(e), given requires Stats., this notice. Rule *12 parts appellant's that the brief cite those of the record support arguments. appellant's relied on to We will supply necessary not search the record to the facts to support appellant's argument, develop nor will we they jointly owned, the safe where discovered was contraband possessed, by probationer or controlled Davis and the and was subject thus to probationer's search under the rubric search condition. Id. at 759.
195 96 531, Wis. 2d Shaffer, State v. argument. appellant’s 1980). (Ct. 370, Whether App. 545-46, 292 N.W.2d field department's standing argue to West has Adm. Code sec. DOC with Wis. comply staff failed undeveloped. 328.21 is completely
(HH—I STATUS REPEATER WEST'S the record does not support claims that West for satisfied forgery 1985 Minnesota conviction 936.62(3)(b), Stats., and allowed of sec. requirements thereunder. The enhance her sentence the trial court to should why of reasons we a number suggests state that State v. claim; however, conclude we West's reject 494, 512-13, 465 N.W.2d Rachwal, 2d 159 Wis. Rachwal con- the court is sufficient. (1991), criminal or no contest plea guilty cluded that alleging a containing repeater provision complaint 973.12, Stats., constituted, under sec. conviction prior conviction. prior of such admission the defendant an that: charged herein The criminal information 939.62 of the provisions of Section fflnvoking the Defendant, COLEEN Statutes, Wisconsin convicted of the fol- WEST, previously was "NMI" offense(s): County Hennepin lowing Convicted 30,1985, of the of For- May on crime District Court Statutes, which gery, contrary the Minnesota conviction(s) unreversed; and, remain of record and charged offense therefore, upon conviction of the for an repeater, may imprisoned proof (6) years. six additional *13 in
This was contained each allegation count to which pleaded West no-contest. We conclude that by pleading no-contest to the charge, West repeater admitted that could be considered in charge trial court determining Further, sentence. at the hear- plea West ing, truthfulness acknowledged as to the allegations repeater offense. We conclude that by her to the plea charges this containing allegation, West admitted that crime Minnesota was a prior 973.12, conviction under sec. Stats.
theBy affirmed. Judgment Court. — J. DYKMAN, The (dissenting). views this majority as case a choice between denying fourth amendment protection those who probationers live with or parol- ees and a safe haven for providing probationers and Wisconsin, parolees, undercutting 483 U.S. Griffin (1987). Were that choice necessary, this would be a more difficult case. But it is not. What the has majority man, done is to set aup then, straw and with reluc- tance, tear it I down. believe that we can Griffin, deny probationers follow simultaneously full parolees fourth amendment protection, and yet grant protection Therefore, to all other citizens. I dissent.
The majority worries that the fourth amendment of a rights person living parolee with a would transfer to the parolee, entitling parolee to assert those That was the rights. Utah Court's Supreme theory (Utah 1987). Johnson, State v. 1069, 1073 748 P.2d Utah court concluded that a all could avoid warrantless searches parole by living There is no nonparolee. logic to this reasoning. Griffin holds that parolees have limited probationers *14 parolee's rights. of a resi- A search
fourth amendment Department pursuant of Corrections rules to dence parolee or with someone. valid, lives alone whether of that search is admissi- a result Evidence obtained as against parolee. A cannot avoid ble living nonparolee. by a The with searches warrantless Supreme majority Court and of the Utah fears of the groundless. are produce apartment not evi- did
The of the search not a Clark. This case is which incriminated dence parole revocation, nor is it a review of review of Clark's against charges brought is a criminal This Clark. sought against to be West, the evidence action and ques- suppressed West, not Clark.1 The incriminated majority suggests, whether we should not, tion is as the per- reasoning apply a West, but whether Griffin's by protections or her fourth amendment son forfeits his By probationer parolee. choosing or live majority attacking avoids the real man, the a straw question posed case. this abrogate necessary to West's not Because it is rights ensure that Clark cannot fourth amendment his need not be consid- Clark and status avoid Griffin, apartment. analyzing of the the search ered in analysis proper officers and is not difficult. Three parole agent probation residence searched West’s exigent circumstances, and warrant, without without exactly type permission. That is without West's prohibited by result fourth amendment. The sup- in the search must be is that the evidence seized But Perhaps also incriminated Clark. the seized evidence Clark, evidence also incriminated that is not relevant. If the Griffin, to those in case be identical facts Clark's would result should occur. the same
pressed against insofar as the state seeks to it use West. Griffin, 183, 206, State v. 126 Wis. 2d (Ct. 1985) App. (Dykman, dissenting), 62, 73 J.,
N.W.2d
(1986),
2d
131 Wis.
pared accept nighttime breaking as the reasonable parents' subsequent down of doors and the search of occupants handcuffed, home are while with the only justification being teenage proba- son is on that a possessing marijuana cigarette.2 for a I am tion not so convinced. requires grounds" also that "reasonable for the Griffin exist, 200-01, 376 70-71, 2d at
search Wis. N.W.2d at which police that may in case was a statement a officer that Griffin guns. Thus, police have had Id. at at a 376 N.W.2d 63-64. that might illegal officer's statement an individual have an marijuana cigarette proba trout or for a would sufficient tioner search. probable police a believe that cause to
If have or her person items in his or stolen has contraband why cannot obtain no home, there is reason person's home. That the occu- to search warrant probationer no pant reason or with a lives exception Here, amendment. to the fourth invent an possessed police apparently no that West had belief without, they goods her home entered when stolen permission. no She was and without warrant position Wisconsin's from of most of different pos- police, except she that, unknown to residents enough goods. for is not That stolen sessed anyone's Therefore, residence. warrantless majority, writing I would reverse I for the were suppress the evidence instructions remand with during at West's trial. the search found