State v. Guzman

• Decision Date: 03 March 1992
• Docket Number: No. 90-1652-CR,90-1652-CR
• Parties: , 60 USLW 2591 STATE of Wisconsin, Plaintiff-Respondent, v. Steven L. GUZMAN, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 446

480 N.W.2d 446

166 Wis.2d 577, 60 USLW 2591

STATE of Wisconsin, Plaintiff-Respondent, v. Steven L. GUZMAN, Defendant-Appellant-Petitioner.

No. 90-1652-CR.

Supreme Court of Wisconsin.

Argued Oct. 30, 1991.

Decided March 3, 1992.

For the defendant-appellant-petitioner there was a brief by Larry D. Steen and Godfrey, Neshek & Worth, S.C., Elkhorn and oral argument by Mr. Steen.

For the plaintiff-respondent the cause was argued by David J. Becker, Asst. Atty. Gen., with whom on the brief was James E. Doyle, Atty. Gen.

DAY, Justice.

This is a review of a published decision of the court of appeals, ¹ which affirmed a judgment and order of the Circuit Court for Walworth County, Honorables Robert J. Kennedy and John R. Race, judges, holding the search of Steven Guzman, in the form of urinalysis, to be constitutional. The issue is whether Steven Guzman (defendant) who was convicted of felonious delivery of a controlled substance, as a party to a crime, was searched in violation of the Fourth Amendment to the United States Constitution, ² or Article I, sec. 11 of the Wisconsin Constitution. ³ At the sentencing hearing the circuit court ordered defendant to submit to a surprise drug screening urinalysis test without probable cause and without a judicial search warrant. We hold that the ordered urinalysis did not violate the United States Constitution or the Wisconsin Constitution.

The facts are not disputed. On January 27, 1989, a one count criminal complaint was filed against defendant charging him with delivering a controlled substance, to wit cocaine, as a party to a crime, in violation of secs. 161.41(1)(c)1 (Uniform Controlled Substances Act) and 939.05(1), Stats., (Parties to a Crime). On August 14, 1989, the circuit court accepted defendant's guilty plea and adjudged him guilty.

On September 29, 1989, at the initial sentencing hearing, Judge Kennedy possessed a pre-sentence report prepared by a Department of Health and Social Services probation and parole agent based on interviews of defendant, members of defendant's family, and a police officer with post-arrest involvement with the defendant. The report revealed that defendant, age 23, started using illegal drugs, including cocaine and marijuana, at age 18 or 19. It noted that after defendant was arrested, he moved to Colorado where he worked as a security officer. According to the report, defendant stated he " 'started over,' " and "has been completely free of drugs." The report noted defendant feels "his drug use started as a recreational tool and that this criminal prosecution has cured him of any idea that he would want to use drugs again," and that "at the present time, he is using no illegal drugs." Finally, the report recommended defendant be placed on probation, fined $1,000, have his probation transferred to the State of Colorado, and be required to pay the costs of prosecution.

At the sentencing hearing, defendant's attorney confirmed that defendant wished to be placed on probation. Judge Kennedy stated there was a likelihood of probation based on the report, but that he wanted to make sure the defendant had no contact with cocaine or marijuana since his conviction. Without a search warrant, Judge Kennedy then revoked defendant's bond and ordered defendant to submit to a drug screening test, stating:

If that test were to be positive, obviously, they would take him over to the hospital for further testing; but if it's negative, then he's going to get his way. It [sic] [I] will go along with this pre-sentence report.

My primary purpose in this particular case is, if I am satisfied that drugs are out of Steve's life, that they're gone, and I think they are, then I am going to go along with the type of sentence, this type of sentence, and let him go to Colorado, et cetera.

But if he has cocaine or marijuana in his system, then my sentence will be entirely different.

The court recessed and defendant was transported to the Walworth County Huber Dorm ⁴ by Walworth County Sheriff's Department police officers where a urine sample was obtained. The sample tested positive for cocaine.

After recess and over objections by defense counsel, Judge Kennedy read the positive test results into the record and scheduled a continued sentencing hearing. Judge Kennedy stated that, while he "had no foundation to believe that the defendant has drugs" prior to the testing, the court nevertheless "has the power to demand any sort of reasonable test, counseling or whatever, in connection with the probation report, or the pre-sentence report."

On November 9, 1989, at the continued sentencing hearing, Judge Kennedy noted the urine sample had been re-tested at Lakeland Hospital, and the test results were again positive for cocaine. Recognizing the possibility of appeal, Judge Kennedy imposed the sentence distinguishing what he actually was imposing as opposed to what he was prepared to impose prior to the urinalysis. Judge Kennedy sentenced defendant to five years probation on the condition that he serve six months in the Walworth County Jail and not leave Wisconsin during the first two years of probation. Prior to the urinalysis, Judge Kennedy would have sentenced defendant to three years probation, no jail time, and allowed defendant to leave Wisconsin under certain conditions.

On December 5, 1989, upon trial counsel's motion for release on bond pending appeal, the defendant was released by the court and jail time was stayed pending appeal.

On July 5, 1990, Circuit Court Judge Race heard oral argument on defendant's motion for post-conviction relief seeking modification of Judge Kennedy's sentence. Judge Race denied the motion and upheld Judge Kennedy's sentence.

It is not disputed that Judge Kennedy did not issue a search warrant or have probable cause to believe that defendant had ingested a controlled substance. The issue is, whether absent a search warrant and probable cause the ordered urinalysis violated either the Fourth Amendment of the United States Constitution or Article I, sec. 11 of the Wisconsin Constitution?

Whether a search is reasonable is a constitutional question of law this court reviews independently, without deference to either the circuit court or the court of appeals. State v. Griffin, 131 Wis.2d 41, 49, 388 N.W.2d 535 (1986), aff'd, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987). We may interpret Article I, sec. 11 differently than the Supreme Court interprets the Fourth Amendment. State v. Weide, 155 Wis.2d 537, 547, 455 N.W.2d 899 (1990). However, we have consistently and routinely conformed the law of search and seizure under the Wisconsin Constitution to the law developed by the United States Supreme Court under the Fourth Amendment; in part because the text of Article I, sec. 11 of the Wisconsin Constitution and the text of the Fourth Amendment are identical, except for a few inconsequential differences in punctuation, capitalization, and the use of the plural, and in part to avoid confusion concomitant with the use of different standards. State v. Fry, 131 Wis.2d 153, 172-73, 388 N.W.2d 565 (1986), cert denied,479 U.S. 989, 107 S.Ct. 583, 93 L.Ed.2d 586 (1986); accord Weide, 155 Wis.2d at 546-47, 455 N.W.2d 535. ⁵

Accordingly, we do not here distinguish between the Article 1, sec. 11 issue and the Fourth Amendment issue, and recognize that the principles enunciated by the Supreme Court regarding the Fourth Amendment are followed in interpreting Article I, sec. 11 of the Wisconsin Constitution.

The collecting and testing of an individual's urine intrudes upon expectations of privacy that society has long recognized as reasonable, constitutes a search, and implicates the Fourth Amendment. Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 617, 109 S.Ct. 1402, 1413, 103 L.Ed.2d 639 (1988). To hold that the Fourth Amendment is applicable, however, is only to begin the inquiry. The analytical framework used to determine whether probable cause and a warrant are necessary before drug testing can be ordered was recently set forth in Skinner:

[T]he Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable. What is reasonable, of course, "depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself." Thus, the permissibility of a particular practice "is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests."

In most criminal cases, we strike this balance in favor of the procedures described by the Warrant Clause of the Fourth Amendment. Except in certain well-defined circumstances, a search or seizure in such a case is not reasonable unless it is accomplished pursuant to a judicial warrant issued upon probable cause. We have recognized exceptions to this rule, however, "when 'special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.' " When faced with such special needs, we have not hesitated to balance the governmental and privacy interests to assess the practicality of the warrant and probable cause requirements in the particular context.

Skinner, 489 U.S. at 619, 109 S.Ct. at 1414 (citations omitted).

Thus, the initial question is whether this case presents "special needs, beyond the normal need for law enforcement." Id. If it does, the question becomes whether such "special needs" justify the abrogation of the warrant and probable cause requirements. This is accomplished by balancing the governmental interests against the defendant's privacy interests. Skinner, 489 U.S. at 619, 109 S.Ct. at 1414. See also Griffin, 483 U.S. at 875-80, 107 S.Ct. at 3169-72.

The Supreme Court recognizes the existence of "special needs" in various contexts. ⁶ Defendant argues that a "special needs" situation does not exist in the present case since obtaining information...