State v. Griffin

• Decision Date: 12 September 1985
• Docket Number: No. 84-021CR,84-021CR
• Court: Wisconsin Court of Appeals
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Joseph G. GRIFFIN, Defendant-Appellant. *

Page 62

376 N.W.2d 62

126 Wis.2d 183

STATE of Wisconsin, Plaintiff-Respondent, v. Joseph G. GRIFFIN, Defendant-Appellant. ^*

No. 84-021CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 9, 1984.

Opinion Released Sept. 12, 1985.

Opinion Filed Sept. 12, 1985.

Alan G. Habermehl and Kalal & Habermehl, Madison, for defendant-appellant.

Bronson C. La Follette, Atty. Gen., and Barry M. Levenson, Asst. Atty. Gen., for plaintiff-respondent.

Before GARTZKE, P.J., and DYKMAN, J., and BRUCE F. BEILFUSS, Reserve Judge.

GARTZKE, Presiding Judge.

Joseph Griffin appeals from a judgment convicting him of possession of a firearm as a convicted felon. Sec. 941.29(2), Stats. Griffin was previously convicted of possession of heroin with intent to deliver, a felony, and was on probation for resisting arrest, disorderly conduct and obstructing an officer. Probation agents found a pistol in Griffin's apartment during a warrantless search. The trial court denied Griffin's motion to suppress the pistol as evidence.

Griffin contends that a warrant is constitutionally required to search a probationer's residence. Alternatively, he argues that even without a warrant requirement the search was unlawful because it was not based upon probable cause, or, at a minimum, a reasonable belief that contraband was present. The state asserts that because Griffin was on probation, the warrantless search in accordance with the rules of the Department of Health and Social Services was constitutional. We conclude that probation agents could lawfully search Griffin's apartment without a warrant on information from the police that he had a gun in his apartment. We therefore affirm.

A probation supervisor testified at the suppression hearing that a detective in the Beloit police department telephoned him that the police had information that Griffin "may have had guns" in his apartment. The supervisor requested police protection for a search. Two or three hours later, the supervisor, a probation agent and three plainclothes police officers went to Griffin's apartment. When Griffin answered the door, they identified themselves and said they were going to search the residence. The police stayed in the living room with Griffin, his child and a woman living with him, while the supervisor and agent searched the apartment. After the supervisor returned to the living room, an officer pointed to a partially open table drawer, in which the supervisor found the pistol. The supervisor directed the officers to arrest Griffin.

The trial court found that the police were present to protect the probation agents at the latters' request and that a police search had not occurred. The court concluded that the warrantless search was reasonable because probation agents have a duty to determine whether a probationer is violating the law or the conditions of probation and because they relied on information from a detective that guns were or may be in Griffin's apartment. The trial court therefore refused to suppress the gun as evidence. Griffin was tried and convicted, and this appeal resulted.

1. Warrantless Search by Probation Agents Permitted

Griffin's motion to suppress is based on the fourth and fourteenth amendments to the United States Constitution ¹ and Wis. Const. art. 1, sec. 11. The provisions of the fourth amendment to the United States Constitution and Wis. Const. art. I, sec. 11, prohibit unreasonable search and seizure and are almost identical. Evidence obtained in violation of either provision is generally inadmissible and must be suppressed.

The chief evil against which the fourth amendment is directed is the physical entry of the home. Welsh v. Wisconsin, 466 U.S. 740, ----, 104 S.Ct. 2091, 2097, 80 L.Ed.2d 732, 742 (1984).

And a principal protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment on agents of the government who seek to enter the home for purposes of search or arrest. See Johnson v. United States, 333 U.S. 10, 13-14 [68 S.Ct. 367, 368-69, 92 L.Ed. 436] (1948). It is not surprising, therefore, that the Court has recognized, as "a 'basic principle of Fourth Amendment law[,]' that searches and seizures inside a home without a warrant are presumptively unreasonable." Payton v. New York, 445 U.S. [573,] 586 [100 S.Ct. 1371, 1380, 63 L.Ed.2d 639] [1980]. See Coolidge v. New Hampshire, 403 U.S. 443, 474-75 [91 S.Ct. 2022, 2042, 29 L.Ed.2d 564] (1971)....

Welsh, 466 U.S. at ----, 104 S.Ct. at 2097, 80 L.Ed.2d at 742 (footnote omitted).

Exceptions to the warrant requirement are "few in number and carefully delineated," United States v. United States District Court, 407 U.S. 297, 318, 92 S.Ct. 2125, 2137, 32 L.Ed.2d 752 (1972), and 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). The exceptions recognized by the United States Supreme Court include search based on consent, search incident to a lawful arrest, a search in hot pursuit, exigent circumstances and seizure of evidence in plain view. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973) (consent); Michigan v. Long, 463 U.S. 1032, 1048, 103 S.Ct. 3469, 3480, 77 L.Ed.2d 1201, 1219 (1983) (limited search incident to lawful arrest); Texas v. Brown, 460 U.S. 730, 735-36, 103 S.Ct. 1535, 1539-40, 75 L.Ed.2d 502 (1983) (hot pursuit); New York v. Belton, 453 U.S. 454, 457, 101 S.Ct. 2860, 2862, 69 L.Ed.2d 768 (1981) (exigent circumstances); and Washington v. Chrisman, 455 U.S. 1, 5-6, 102 S.Ct. 812, 815-16, 70 L.Ed.2d 778 (1982) (plain view). The state makes no claim that any of these exceptions applies to the facts before us.

The United States Supreme Court has not declared whether the status of a probationer or parolee is a basis for an additional exception to the warrant requirement. ² This, of course, need not deter us from deciding whether the exception exists. See State v. Prober, 98 Wis.2d 345, 360-61, 297 N.W.2d 1, 9 (1980) (medical emergency exception exists for warrantless search of home, notwithstanding lack of United States Supreme Court precedent). The existence and circumstances of such an exception have been the subject of considerable discussion at other levels. See 3 W. LaFave, Search and Seizure sec. 10.10, at 421 (1978). LaFave concludes:

Although there is some authority to the effect that the Fourth Amendment rights of probationers and parolees are of precisely the same scope and dimension as those of the public at large, the weight of authority is to the contrary.... And while there is some disagreement as to whether a probationer's Fourth Amendment rights are diminished to the same extent and degree as those of a parolee, there is considerable authority supporting the proposition that probationers may lawfully be subjected to searches which, absent their probation status, would be deemed unlawful because of the absence of probable cause or a search warrant or both.

Id. at 421-22 (footnotes omitted).

Most state and federal courts faced with the issue have held that probation or parole agents may conduct a warrantless search of the dwelling of a probationer or a parolee. See, e.g., Latta v. Fitzharris, 521 F.2d 246, 250 (9th Cir.) (en banc), cert. denied, 423 U.S. 897, 96 S.Ct. 200, 46 L.Ed.2d 130 (1975); Owens v. Kelley, 681 F.2d 1362, 1368 (11th Cir.1982); Roman v. State, 570 P.2d 1235, 1242 (Alaska 1977) (dicta); State v. Montgomery, 115 Ariz. 583, 566 P.2d 1329, 1330 (1977); People v. Mason, 5 Cal.3d 759, 97 Cal.Rptr. 302, 306, 488 P.2d 630, 634 (1971), cert. denied, 405 U.S. 1016, 92 S.Ct. 1289, 31 L.Ed.2d 478 (1972); People v. Anderson, 189 Colo. 34, 536 P.2d 302, 305 (1975); Grubbs v. State, 373 So.2d 905, 907 (Fla.1979) (use of evidence obtained limited to probation or parole revocation proceeding); State v. Fields, 686 P.2d 1379, 1389 (Hawaii 1984); State v. Malone, 403 So.2d 1234, 1239 (La.1981) (yard); People v. Richards, 76 Mich.App. 665, 256 N.W.2d 793, 795 (1977); State v. Earnest, 293 N.W.2d 365, 369 (Minn.1980) (evidence obtained used in a probation revocation proceeding); State v. Morgan, 206 Neb. 818, 295 N.W.2d 285, 289 (1980); Himmage v. State, 88 Nev. 296, 496 P.2d 763, 766 (1972); People v. Huntley, 43 N.Y.2d 175, 401 N.Y.S.2d 31, 34, 371 N.E.2d 794, 796 (1977); State v. Perbix, 331 N.W.2d 14, 21 (N.D.1983); State v. Culbertson, 29 Or.App. 363, 563 P.2d 1224, 1229 (1977) (dicta); State v. Cummings, 262 N.W.2d 56, 61 (S.D.1978); State v. Velasquez, 672 P.2d 1254, 1260 (Utah 1983); State v. Simms, 10 Wash.App. 75, 516 P.2d 1088, 1094 (1973).

Some courts permit police to make a warrantless search of a probationer's or parolee's dwelling. See, e.g., Owens v. Kelley, 681 F.2d at 1368; State v. Montgomery, 566 P.2d at 1331; People v. Mason, 488 P.2d at 631; People v. Richards, 256 N.W.2d at 795; State v. Morgan, 295 N.W.2d at 289; Seim v. State, 95 Nev. 89, 590 P.2d 1152, 1155 (1979) (dicta); State v. Perbix, 331 N.W.2d at 21. Contra, e.g., U.S. v. Consuelo-Gonzalez, 521 F.2d 259, 266 (9th Cir.1975) (en banc); Roman v. State, 570 P.2d at 1243; People v. Anderson, 536 P.2d at 305; Grubbs v. State, 373 So.2d at 909; State v. Fields, 686 P.2d at 1388; State v. Velasquez, 672 P.2d at 1262.

Under the minority view, no exception to the warrant requirement applies to probationers or parolees, and a warrantless search may not be made of such a person's dwelling unless one of the judicially recognized exceptions is met. See, e.g., U.S. v. Rea, 678 F.2d 382, 387-88 (2d Cir.1982); U.S. v. Bradley, 571 F.2d 787, 789 (4th Cir.1978); State v. Cullison, 173 N.W.2d 533, 537 (Iowa), cert. denied, 398 U.S. 938, 90 S.Ct. 1841, 26 L.Ed.2d 270 (1970); State v. Fogarty, 187 Mont. 393, 610 P.2d 140, 144 (1980); Tamez v. State, 534 S.W.2d 686, 692 (Ct.App.Tex.1976).

The Wisconsin Supreme Court recognizes an exception to the warrant requirement which allows probation agents...