State v. West
State v. West
Opinion of the Court
This is a review of a published court of appeals decision affirming a judgment of the circuit court for Dane County, Honorable Robert R. Pekowsky, Judge.
The defendant, Ms. Colleen West (Ms. West), and her co-defendant, Paul Clark (Mr. Clark), were charged with sixty-eight counts of theft under sec. 943.20, Stats. Ms. West was charged as a repeat offender under sec. 939.62, Stats. She was convicted and sentenced after a plea agreement, whereby she pleaded "no contest" to five of the counts.
Ms. West brought a motion in the circuit court to suppress the evidence of the stolen property found during the search of the apartment, claiming that the search of Mr. Clark's apartment violated her Fourth Amendment protection against unreasonable searches and seizures. The circuit court denied her suppression motion, based in part on what the court phrased as a
On appeal, Ms. West challenged her conviction and the circuit court's dismissal of her motion to suppress the evidence obtained following the search of Mr. Clark's apartment.
Ms. West then petitioned for review in this court, which was granted. Review was sought only as to the search and seizure question. We conclude that the search and seizure were valid and that the evidence found in the search may be used against Ms. West. We therefore affirm the decision of the court of appeals. We conclude that Ms. West did have a reasonable expectation of privacy in the apartment, but because her control of the apartment was shared with Mr. Clark, the parole search could validly extend to all those areas in which Mr. Clark enjoyed common authority.
The background of this case is framed by two important facts. The first fact is that Mr. Clark, Ms. West's companion and co-defendant in the circuit court case, leased an apartment in Madison and allowed Ms. West to occupy the apartment. Mr. Clark retained access to the apartment, maintained possessions at the apartment, and stayed at the apartment with Ms. West
The next important fact is that Mr. Clark was on parole. As a parolee, Mr. Clark was subject to certain conditions on his release as elaborated in Wis. Admin. Code, sec. DOC 328. Among the conditions placed on Mr. Clark's release on parole was the requirement that he refrain from committing further criminal acts while on parole and the requirement that he report his residence(s) to the DOC and local law enforcement authorities. See, Griffin v. Wisconsin, 483 U.S. 868, 870-871, 107 S. Ct. 3164 (1987), affirming State v. Griffin, 131 Wis. 2d 41, 388 N.W.2d 535 (1986); State v. Tarrell, 74 Wis. 2d 647, 653-655, 247 N.W.2d 696 (1976).
Mr. Clark's activities had come under suspicion of the DOC officials. They suspected that Mr. Clark was engaged in criminal activity despite being on parole. They also suspected that Mr. Clark was maintaining an unreported apartment in Madison. Mr. Clark's only reported residence was in Pardeeville. He never did report his Madison apartment to the proper authorities. Following events which need not be described here, Mr. Clark was held in Columbia County jail. While detained, Mr. Clark was asked by a parole officer whether he had an unreported apartment in Madison. Mr. Clark denied that he had any such apartment. Soon thereafter, however, the police were able to confirm the existence of Mr. Clark's "secret" apartment in Madison when the apartment manager provided the police with a copy of a lease for an apartment with Mr. Clark's name on it.
The search was conducted by four officers, one parole officer accompanied by three police officers. When the officers arrived at the apartment, they could hear someone inside. The person inside turned out to be Ms. West. The officers knocked repeatedly, but no one answered. The officers then obtained a key from the apartment manager. They were still unable to secure entry, however, because the door was deadbolted. Soon thereafter the officers noticed Ms. West in the window, signaled to her, and she then opened the door.
The officers entered the apartment, identified themselves, and announced that they were there to
As the search progressed and the officers noticed more and more stolen property, Ms. West admitted that Mr. Clark had stayed there many times with her, sometimes up to a week at a time. She also claimed that many of the things in the apartment were his. The officers also found additional evidence that Mr. Clark had resided at the apartment, at least periodically, including mens clothing and mens toiletries.
The search covered the entire apartment, including one room which was locked with a padlock. The officers asked Ms. West if she had a key to the room. Initially she denied having a key, but she then produced a key which the officers used to open the door. The room contained many items which were later found to be stolen.
The officers spent several hours taking inventory of the items found in the apartment and writing down serial numbers. The officers found cameras, cellular phones, car phones, dozens of radar detectors, a computer, an electronic keyboard, sunglasses, clothing, and many other items, most all of which turned out to be stolen. The officers also found a stun gun and a kit to convert an M-16 rifle into a full automatic.
Ms. West acknowledges that the State has the basic authority to conduct warrantless and nonconsen-sual searches against parolees such as Mr. Clark, pursuant to sec. DOC 328.21. Although she reserves to herself the right to challenge the conduct of this specific search, it is undisputed that the general practice of probation (and parole) searches was clearly upheld by the United States Supreme Court in Griffin, 483 U.S. 868. It is Ms. West's basic contention, however, that what is allowed as to parolees is not allowed against nonparolees, and that a nonparolee should not be made to suffer the consequences of the parole search directed at the parolee.
Ms. West begins by observing that the Fourth Amendment protects "people, not places," Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507 (1967). A parolee may be subjected to a somewhat diminished scope of Fourth Amendment protections, but a nonparolee retains the full range of Fourth Amendment protections. See, Griffin, 483 U.S. at 875; Tarrell,
The first of these suggestions may be rejected outright. Were a nonparolee living with a parolee allowed an automatic objection to a parole search directed against the parolee, it would effectively thwart all parole searches. In the words of the Supreme Court of Utah, this would allow a parolee to "avoid all warrant-less parole searches by living with a nonparolee and asserting the nonparolee's constitutional rights." State v. Johnson, 748 P.2d 1069, 1073 (Utah 1987) (cited in West, 179 Wis. 2d at 194). See also, Russi v. Superior Court of Napa County, 33 Cal. App. 3d 160, 168-169, 108 Cal. Rptr. 716, 720-721 (1973) (cited in West, 179 Wis. 2d at 189). Our court of appeals likewise warned that, "[t]o accord [Ms. West] that expectation ... would emasculate the special needs of Wisconsin's probation and parole system." West, 179 Wis. 2d at 194. Finally, we find it significant that neither Judge Dykman, dissenting in the court of appeals, nor the ACLU of Wisconsin, writing in support of Ms. West, argues that a nonparolee could prevent the authorities from conducting a warrantless and nonconsensual search as against the parolee.
We decline the invitation to formulate such a rule. It is already clear that a parole search cannot be targeted against a nonparolee.
We also note that were such a rule adopted, parole searches could be foiled easily. Were it so that evidence obtained during a parole search could not be used against a nonparolee, there would be nothing to prevent the nonparolee from admitting possession, but yet still moving successfully under this proposed rule to have the items excluded at trial. That, fortunately, is not the law. Accordingly, we conclude that if the parole search itself is valid, there is no reason why the evidence discovered during that valid search cannot be used against a third party.
Ms. West's next argument is that this specific parole search was invalid because the proper procedures were not followed, and that, therefore, the
It is Ms. West's burden to show that any violations occurred and that they were of such a type or quality that her constitutional rights were infringed. See, Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S. Ct. 2556 (1980); State v. Rewolinski, 159 Wis. 2d 1, 13-16, 464 N.W.2d 401 (1990); State v. Whitrock, 161 Wis. 2d 960, 972, 468 N.W.2d 696 (1991).
However, even assuming, arguendo, that certain procedural requirements were not met, this would not automatically justify exclusion of the resulting evidence. See, United States v. Calandra, 414 U.S. 338, 347-348 (1974); Whitrock, 161 Wis. 2d at 981-983.
Nor do we find any state law violations. Ms. West's primary complaint is that Mr. Clark was not notified of the impending search, as specified in Wis. Admin. Code, sec. DOC 328.21(5) (April 1990). Section DOC 328.21(5) states:
(5) INFORMING THE CLIENT. Whenever feasible before a search is conducted under this section, the client shall be informed that a search is about to occur, why and how the search will be conducted and the place where the search is to occur. (Emphasis added.)
We conclude that this requirement is directory, not mandatory. The word "feasible" indicates that the DOC is allowed some discretion in whether, when, or how it
Having established on the record before us in this case that the parole search was properly executed as against Mr. Clark, we consider whether the search was valid as to Ms. West. We conclude that it was, but we emphasize that our analysis is different from that of the circuit court and the court of appeals.
The pertinent question, then, is whether Ms. West demonstrated a reasonable expectation of privacy in the apartment. Again, the burden is upon the one claiming Fourth Amendment protection to show that the search was illegal and that the person had a reasonable or legitimate expectation of privacy in the premises or property. See, Rawlings, 448 U.S. at 104; Rewolinski, 159 Wis. 2d at 13-16; Whitrock, 161 Wis. 2d at 972.
The test for whether a person has a reasonable or legitimate expectation of privacy in the item or area searched depends on (1) whether the individual has exhibited an actual (subjective) expectation of privacy in the area searched and in the item seized, and (2) whether such an expectation of privacy is legitimate or justifiable in that it is one that society is willing to recognize as reasonable. Dixon, 177 Wis. 2d at 468. Whether the facts support the defendant's claim of a reasonable expectation privacy in the space or area which was the subject of the search is a question of
There are several factors which are relevant in determining whether an accused has an expectation of privacy that society is willing to recognize as reasonable. These include whether one has a property interest in the premises, whether one was legitimately on the premises, whether one has complete dominion and control and the right to exclude others, whether one took precautions those seeking privacy take, whether one put the property to some private use, and whether the privacy claim is consistent with historical notions of privacy. State v. Fillyaw, 104 Wis. 2d 700, 711-712 n.6, 312 N.W.2d 795 (1981); Dixon, 177 Wis. 2d at 469.
The court of appeals concluded that Ms. West had no reasonable expectation of privacy. West, 179 Wis. 2d at 190-191. Although Ms. West had exhibited a subjective expectation of privacy, the court of appeals concluded that this was not an expectation which society is prepared to recognize as reasonable. The reason the court of appeals gave for concluding that her expectation of privacy was not reasonable was that Ms. West knew that the apartment was leased by Mr. Clark and that she knew he was a parolee. We disagree.
We conclude that Ms. West did in fact demonstrate a basis for a reasonable expectation of privacy in the
We also question the court of appeals' reliance upon the fact that Ms. West knew of Mr. Clark's status as a parolee. The court of appeals emphasized that, "because she knew of Clark's parolee status, [Ms. West] did not have a legitimate expectation of privacy in the living quarters she shared with Clark." West, 179 Wis. 2d at 194. We disagree. Emphasizing Ms. West's knowledge of Mr. Clark's status as a parolee begs the question of why or how this fact should change Ms. West's expectation of privacy. It would first have to be established that the parolee's status carried objective consequences to nonparolees, but if these were objec
At the same time, however, we conclude that Ms. West's reasonable expectation of privacy in the apartment was limited because she was occupying the premises jointly with Mr. Clark. The facts of this case clearly demonstrate that both parties shared the apartment and had common authority over the apartment and its contents.
The court of appeals noted that" [i] t 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 Wis. Admin. Code sec. DOC 238.21(1)." West, 179 Wis. 2d at 195. See also, Mancusi, 392 U.S. at 370. We agree. In this case, however, all indications are that they had common authority.
We conclude further that a parole search may be conducted over the explicit objections of those living with the parolee. See, Davis, 932 F.2d at 758-760;
Therefore, the fact that Ms. West's consent was neither sought nor given does not affect the validity of the search. So long as the authorities have reasonable cause for the search and a reasonable basis for believing that the premises or items searched belong to or are used in common by the parolee, there is no violation of the Fourth Amendment either against the parolee or against the nonparolee. If it be shown that the authorities lacked reasonable cause or were unreasonable in their assumptions or actions, the remedy could be found in applying the exclusionary rule at that point.
The purpose of suppression is to prevent future misconduct on the part of the police by not allowing into evidence items seized unlawfully. Here the actions
The final issue concerns the seizure of the items at the storage locker rented by Ms. West. The circuit court made no express finding as to the voluntariness of West's consent to the storage locker search. Therefore we make our own independent determination on that issue based upon the evidence in the record. See, State v. Kraimer, 99 Wis. 2d 306, 318, 298 N.W.2d 568 (1980); State v. Turner, 136 Wis. 2d 333, 344, 401 N.W.2d 827 (1987). We conclude from the "totality of circumstances" that Ms. West's consent to the search of the storage locker was voluntary. See, Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).
The police obtained a search warrant for Mr. Clark's apartment eight days after the parole search. The validity of that warrant has not been challenged. When the police arrived at the apartment and found it empty, they contacted Ms. West. She voluntarily told the police that she had moved the property to a storage locker. She voluntarily accompanied the police to the storage locker, voluntarily gave them a key she previously had had made for them, and voluntarily gave them a type-written inventory of the items she had taken from the apartment but had not placed in the storage locker. She also voluntarily signed a "Consent to Search" form. The search and seizure was conducted without incident.
The state had argued, in the alternative, that this subsequent voluntary consent would have "dissipated any taint" which may have existed had the original parole search been found invalid. Since we find both the parole search and the subsequent voluntary con
By the Court. — The decision of the court of appeals is affirmed.
State v. West, 179 Wis. 2d 182, 507 N.W.2d 343 (Ct. App. 1993).
This section was created in 1981, Cr. Register, December 1981, No. 312, eff. 1-1-82, as Wis. Admin. Code sec. HSS 328.21 (4). This section was since repealed and recreated as Wis. Admin. Code sec. DOC 328.21(3) in April of 1986, effective May 1986. It was that section which was in effect at the time of the search. The operative language governing parole searches changed only location, not content. The current dating of the section is from April 1990. Section DOC 328.21(3) provides as follows: 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.
Ms. West also challenged the application of the repeater statute, sec. 939.62, Stats., before the court of appeals. That issue is not before this court.
We note that searches by parole or probation agents may be made on the basis of information supplied by the police and the police may assist the parole or probation authorities, so long
Approval was sought and obtained in conformity with sec. DOC 328.21(3).
Judge Dykman states that "Griffin [483 U.S. 868] holds that parolees and probationers have limited fourth amendment
As the United States Supreme Court stated in Griffin, 483 U.S. at 875," [supervision, then, is a 'special need' of the State permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large."
In dissent, Justice Abrahamson (citing Judge Dykman's dissent in the court of appeals), states that," '[i]f the police have probable cause to believe that a person has contraband or stolen items in his or her home, there is no reason why the police cannot obtain a warrant to search that person's home.’" Dissenting op., p. at 101. We agree that a search directed at a nonparolee would be subject to the normal warrant requirement. However, it is incorrect to imply that the search in this case directed at Ms. West. Ms. West's argument is that the evidence obtained in a parole search should not be used against a nonparolee. She does not claim that the search was directed at her; nor is there any evidence in the record to suggest that it was.
The court of appeals declined to address Ms. West's bare allegation that the notice provision of the regulations, sec. DOC 328.21(5) was not followed because, the court noted, "West does not cite to any point in the record which establishes Clark was not given this notice." West, 179 Wis. 2d at 195. The court of appeals cites sec. (Rule) 809.19(1)(e), Stats., which requires that the appellant's brief cite those parts of the record relied on to support the appellant's arguments. Id. The court of appeals
"Despite its broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons." Calandra, 414 U.S. at 348.
The Court noted that, "the only regulation upon which we rely for our constitutional decision is that which permits a war-rantless search on 'reasonable grounds.'... That the procedures followed, although establishing 'reasonable grounds' under Wisconsin law, and adequate under federal constitutional standards, may have violated Wisconsin state regulations, is irrelevant to the case before us." Griffin, 483 U.S. at 880, n.8.
No conclusions made in the present case preclude Mr. Clark from raising such issues in his own defense. Mr. Clark is still free to challenge the validity of the search or the use of the evidence against him should he have a basis to do so.
"In reviewing a denial of a suppression motion, we will uphold the trial court's finding of fact unless they are against the great weight and clear preponderance of the evidence. Whether these facts satisfy the constitutional requirement of reasonableness presents a question of law, and we are not
Property interests, while not dispositive, remain a very relevant factor. Rewolinski, 159 Wis. 2d at 18.
The government has the burden of proving common authority. Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S. Ct. 2793 (1990). The standard is reasonableness. Id. at 185-186.
The same conclusion applies to the locked room. It is true that the police obtained a key to the room from Ms. West, but there is no evidence to suggest that Ms. West had separate or exclusive control of the locked room. To the contrary, it is her contention that all but a couple incidental items found in the room belonged to Mr. Clark and that she did not know how the items got there. There is no evidence that the room was used in any capacity other than storage of the stolen items.
We note that on these facts it is irrelevant whether the alleged sublet arrangement was ever registered or not. Just as a reasonable expectation of privacy is not dependent upon strict notions of property interests, neither is the finding of common authority. The United States Supreme Court noted in Matlock, 415 U.S. at 171, n.7, "[cjommon authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements (citations omitted), but rests rather on mutual use of the property by persons generally having joint
The dissent is incorrect when it suggests that we have somehow based this search on Ms. West's "consent." Dissenting op., p. at 100. We have stated explicitly that Ms. West's consent was neither sought nor required. We have attributed a form of constructive consent to the parolee within the context of the "special needs" of the parole and probation system, pursuant to Griffin, at 873-874. The dissent, citing Judge Dykman's dissent, Dissenting op., p. at 101, has acknowledged that the search could be conducted as against the parolee without a warrant " 'whether the parolee lives alone or with someone.. ..,'" i.e., presumably the nonparolee could not prevent the search as against the parolee. However, the dissent would exclude that evidence obtained against nonparolees, even though they might share the premises with the parolee and exert common authority over the premises. This is not the law. The loss of Ms. West's reasonable expectation of privacy does not derive from "transformed" consent, and is not dependent upon the parolee's status, but rather her expectation of privacy is diminished because the search was conducted in an area which she held in common authority with the person against whom the search was lawfully sought.
The propriety of police actions in search and seizure is governed by the standard of reasonableness in light of the facts and the circumstances. Whitrock, 161 Wis. 2d at 981. In Rodriguez, 497 U.S. at 185-186, the United States Supreme Court explained the standard as follows: "[I]n order to satisfy the 'reasonableness' requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by agents of the government — whether the magistrate issuing a warrant, the police officer executing a warrant, or the police officer conducting a search or seizure under one of the exceptions to the warrant requirement — is not that they always be correct, but that they always be reasonable."
The dissent is likewise mistaken when it suggests, again citing Judge Dykman's dissent in the court of appeals, that " '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 . . " Dissenting op., p. at 101. We are simply applying the rule that whenever one shares common authority over premises or effects with another, that person has "assumed the risk" that the other person may allow outsiders to come onto the premises to search or to examine the property. See, Matlock, 415 U.S. at 171, n.7; Frazier, 394 U.S. at 740; McGovern, 77 Wis. 2d at 211-212.
Dissenting Opinion
(dissenting). The United States Supreme Court decision, Griffin v. Wisconsin, 483 U.S. 868 (1987),
The majority opinion insists that defendant West had a reasonable expectation of privacy in the apartment even though she shared it with a parolee. Majority opinion at 90-91. Having conferred an expec
I agree with the dissent filed by Judge Dykman in the court of appeals. State v. West, 179 Wis. 2d 182, 197, 507 N.W.2d 343 (1993). As Judge Dykman explained, the majority opinion sets up a straw man and then tears it down. I quote salient parts of Judge Dykman's dissent and adopt the dissent as my own.
"[W]e can simultaneously follow Griffin, deny probationers and parolees full fourth amendment protection and yet grant that protection to other citizens....
".... A search of a parolee's residence pursuant to Department of Corrections rules is valid,*101 whether the parolee lives alone or with someone.... A parolee cannot avoid warrantless searches by living with a nonparolee. The fears of the majority... are groundless.
"The search of the apartment did not produce evidence which incriminated [the parolee]. This case is not a review of... parole revocation, nor is it a review of the charges brought against [the parolee]....
".... 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. This is exactly the type of search prohibited by the fourth amendment. The result is that the evidence seized in the search must be suppressed insofar as the state seeks to use it against West.
". . .. The majority has concluded that the parents, grandparents, siblings, roommates and spouses of persons convicted of any of these crimes [including fish and game law violations, drinking intoxicants while on a common carrier possession of marijuana] have forfeited their fourth amendment rights if they continue living with their children, grandchildren, siblings, roommates or spouses....
"If the police have probable cause to believe that a person has contraband or stolen items in his or her home, there is no reason why the police cannot obtain a warrant to search that person's home. That the occupant lives with a probationer or parolee is no reason to invent an exception to the fourth amendment...."
For the reasons set forth, I dissent.
The Court upheld the Department of Corrections' rules permitting a search of a probationer's residence on reasonable suspicion without a warrant or probable cause. Griffin, 483 U.S. at 872-873.
See, e.g., 4 W. LaFave, Search and Seizure sec. 10.10, at 24 (2d ed. 1993 Supp.) (finds unconvincing the Griffin majority's reasoning that "the special needs of Wisconsin's probation system make the warrant requirement impracticable"); Sunny A.M. Koshy, The Right of [Ml] People to be Secure: Extending Fundamental Fourth Amendment Rights to Probationers and Parolees, 39 Hastings L.J. 449, 481 (1988); Howard P. Schneid-erman, Conflicting Perspectives from the Bench and the Field on Probationer Home Searches — Griffin v. Wisconsin Reconsidered, 1989 Wis. L. Rev. 607, 664 (". . . 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 powers rather infrequently").
A search under DOC 328.04(3)(k), majority opinion at 94, is not involved in this case. The search in this case was under DOC 328.21(3). See majority opinion at 76.
Despite the majority's citation of Griffin for this "consent" proposition, Griffin says nothing about "consent" to the search involved in this case. The Griffin opinion focuses on DOC 328.21 (3) and upholds the rule, concluding that it meets the "special needs" of the probation officers and comports with the principles of reasonableness underlying the Fourth Amendment.
Reference
- Full Case Name
- State of Wisconsin, Plaintiff-Respondent, v. Colleen (NMI) West, Defendant-Appellant-Petitioner
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- 25 cases
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- Published