State v. Griffin, 84-021-CR

CourtUnited States State Supreme Court of Wisconsin
Citation131 Wis.2d 41,388 N.W.2d 535
Docket NumberNo. 84-021-CR,84-021-CR
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Joseph G. GRIFFIN, Defendant-Appellant-Petitioner.
Decision Date20 June 1986

Alan G. Habermehl, Madison, argued, for defendant-appellant-petitioner; Kalal & Habermehl, Madison, on brief.

Barry M. Levenson, Asst. Atty. Gen., argued, for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.

DAY, Justice.

This is a review of a published decision of the court of appeals, State v. Griffin, 126 Wis.2d 183, 376 N.W.2d 62 (Ct.App.1985), affirming the judgment of the circuit court for Rock county, Honorable J. Richard Long, circuit judge, convicting Joseph G. Griffin, (Defendant) of possession of a firearm by a convicted felon contrary to Section 941.29(2), Stats. 1 Defendant was previously convicted of possession of heroin with intent to deliver which is a felony. A probation agent discovered a gun at the Defendant's residence during a warrantless search. At the time of the search, Defendant was on probation for resisting arrest, disorderly conduct and obstructing an officer. The trial court denied Defendant's motion to suppress the weapon as evidence, and the court of appeals affirmed. The issues on review are: 1) Does the nature of probation justify an exception to the warrant requirement for searches of a probationer's home by a probation officer?; if so, 2) May a probation officer conduct a warrantless search of a probationer's home based on "reasonable grounds," rather than probable cause, to believe the probationer may possess contraband?; if so, 3) Do the facts of this case constitute reasonable grounds to believe that the Defendant possessed contraband?

We hold that by its nature, probation places limitations on the liberty and privacy rights of probationers, and these limitations justify an exception to the warrant requirement. Furthermore, we hold that a probation officer may conduct a warrantless search of a probationer's residence if he has "reasonable grounds" to believe that a probationer has contraband. Because we hold that the search by the probation officers was based on reasonable grounds, we affirm the court of appeals.

On September 4, 1980, Defendant was convicted of resisting arrest, disorderly conduct and obstructing an officer. Defendant was placed on probation for these offenses and was still on probation as of April 5, 1983.

Mr. Michael T. Lew, a supervisor for the State Bureau of Probation and Parole in Beloit, testified at the suppression hearing that on April 5, 1983, he received a phone call from the Beloit Detective Bureau that the Defendant "may have had guns in his apartment." While Mr. Lew believed the source of the information was Truett Pittner, a detective captain, Captain Pittner testified at the suppression hearing that he did not believe he called Mr. Lew, but rather, believed it was one of his detectives. After waiting two or three hours for the Defendant's probation officer, Mr. Lew made arrangements for another probation agent, Ms. Joanne D. Johnson, to participate in the search, and for three Beloit police officers, Officer Sam W. Lathrop, Officer Gerald A. Leppla and Detective Victor Hanson, to provide protection for him and Ms. Johnson.

Mr. Lew, Ms. Johnson and the three plainclothes police officers went to the Defendant's apartment. When Defendant answered the door, Mr. Lew told Defendant who they were and informed him that they were going to search his residence. Upon entering the apartment, Mr. Lew went into the kitchen to search, Ms. Johnson went into a bedroom to search, and the police officers, who did not search, went into the living room with the Defendant and a woman who lived with Defendant. Upon entering the apartment, Ms. Johnson saw what she perceived to be marijuana on a living room table, but did not take possession of it at that time.

When Mr. Lew entered the living room, followed by Ms. Johnson, one of the officers pointed toward the area where a table, with a broken drawer which made it possible to see inside the drawer, was located. The table was located in the general direction that Mr. Lew was headed. In the drawer, Mr. Lew found a handgun and turned it over to one of the police officers. He then directed the officers to take Defendant "into custody on a probation violation apprehension." Defendant alleged that one of the officers told Mr. Lew that there was a gun in the drawer. Ms. Johnson, upon entering the living room, took possession of the alleged marijuana.

On April 11, 1983, a criminal complaint was filed charging the Defendant with possession of a firearm by a felon, contrary to Section 941.29(2), Stats., and possession of a controlled substance, THC, contrary to Sections 161.14(4)(t) and 161.41(3). Both charges were alleged to fall under Section 939.62, allowing for an enhanced penalty for habitual criminality.

Defendant filed the following motions: motion to sever, motion to dismiss habitual criminality allegations, motions to dismiss both charges, motion to suppress all evidence obtained during the search of his residence and a motion to dismiss for illegal arrest, seeking dismissal on the ground that the arrest was based on evidence obtained in an illegal search. The motions to sever and dismiss the habitual criminality allegations were granted, and all the other motions were denied. The trial court ordered that the trial on the possession of a firearm by a felon precede the trial for the possession of THC.

In denying the Defendant's motions to dismiss because of an illegal arrest and to suppress evidence, the trial court held that Defendant's fourth amendment rights were not violated when the probation officers searched his residence without a warrant. It ruled that a probation officer must act reasonably in making a search of a probationer's residence. Based on the evidence before it, the trial court determined that the search was reasonable. Furthermore, the trial court found as a matter of fact, that the search was not a police search and that the police officers were present to protect the probation officers.

In addition to the handgun, other evidence, obtained from the search, was admitted into evidence at the jury trial on August 18, 1983.

The jury found the Defendant guilty of possession of a firearm by a convicted felon. The charge of possession of THC was dismissed and "read in" at the sentencing. The judgment of conviction and sentence to Wisconsin State Prisons, dated September 16, 1983, sentenced Defendant to a prison term of two years. An amended judgment, dated October 24, 1983, gave Defendant one hundred and one days credit toward the two year sentence. Defendant appealed the judgment and amended judgment to the court of appeals.

In affirming, the court of appeals relied on the logic of State v. Tarrell, 74 Wis.2d 647, 247 N.W.2d 696 (1976), to conclude that a probation officer may conduct a warrantless search of a probationer's dwelling even if the search does not meet one of the usual exceptions to the warrant requirement if the search is reasonable. The court of appeals upheld the "reasonable grounds to believe" standard in the Wisconsin Administrative Code Section HSS 328.21(4) (currently section HSS 328.21(3)(a)) as an adequate protection of a probationer's constitutional rights, and concluded that the tip from the police constituted reasonable grounds to believe that the probationer's living quarters contained contraband. Defendant petitioned this court for review and review was granted.

The constitutional legality of a warrantless search of a probationer's residence by a probation officer raises a question of law. This court reviews questions of law "independently without deference to the decisions of the trial court and court of appeals." Ball v. District No. 4 Area Board, 117 Wis.2d 529, 537, 345 N.W.2d 389 (1984).

Defendant's motion to suppress the handgun was based on the fourth and fourteenth amendments to the United States Constitution 2 and art. 1, sections 1 and 11 of the Wisconsin Constitution. 3 The provisions of the fourth amendment and art. 1, section 11 which prohibit unreasonable searches and seizures are almost identical. In State v. Boggess, 115 Wis.2d 443, 448-449, 340 N.W.2d 516 (1983), this court stated that the basic purpose of these provisions is:

"[T]o safeguard the privacy and security of individuals against arbitrary invasions by government officials. See Michigan v. Tyler, 436 U.S. 499, 504 [98 S.Ct. 1942, 1947, 56 L.Ed.2d 486] (1978). The United States Supreme Court has consistently held that warrantless searches are per se unreasonable under the fourth amendment, subject to a few carefully delineated exceptions. Cady v. Dombrowski, 413 U.S. 433, 439 [93 S.Ct. 2523, 2527, 37 L.Ed.2d 706] (1973). These exceptions have been 'jealously and carefully drawn', Jones v. United States, 357 U.S. 493, 499 [78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514] (1958), and the burden rests with those seeking exemption from the warrant requirement to prove that the exigencies made that course imperative. Coolidge v. New Hampshire, 403 U.S. 443, 455 [91 S.Ct. 2022, 2032, 29 L.Ed.2d 564] (1971)."

A person's home or residence is entitled to special dignity and sanctity. Laasch v. State, 84 Wis.2d 587, 594, 267 N.W.2d 278 (1978). The exceptions to the search warrant requirement recognized by the United States Supreme Court include, consent, search incident to a lawful arrest, hot pursuit, exigent circumstances and plain view. Texas v. Brown, 460 U.S. 730, 735-736, 103 S.Ct. 1535, 1539-1540, 75 L.Ed.2d 502 (1983); Washington v. Chrisman, 455 U.S. 1, 5-7, 9-10, 102 S.Ct. 812, 815-817, 818, 70 L.Ed.2d 778 (1982) (plain view and consent). The state does not rely on any of these recognized exceptions to justify the warrantless search of a probationer's residence by a probation officer, but rather, it relies on the Defendant's...

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    • Case Western Reserve Law Review Vol. 71 No. 1, September 2020
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