State v. Hajicek

• Decision Date: 17 January 2001
• Docket Number: No. 98-3485-CR.,98-3485-CR.
• Citation: 2001 WI 3,620 N.W.2d 781,240 Wis.2d 349
• Parties: STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Charles J. HAJICEK, Defendant-Respondent.
• Court: Wisconsin Supreme Court

240 Wis.2d 349

2001 WI 3

620 N.W.2d 781

STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Charles J. HAJICEK, Defendant-Respondent.

No. 98-3485-CR.

Supreme Court of Wisconsin.

Oral argument October 5, 2000.

Decided January 17, 2001.

For the plaintiff-appellant-petitioner the cause was argued by Jennifer E. Nashold, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.

For the defendant-respondent there was a brief by Bruce J. Rosen, Susan C. Blesener and Pellino, Rosen, Mowris & Kirkhuff, S.C., Madison, and oral argument by Bruce J. Rosen.

¶ 1. N. PATRICK CROOKS, J

The petitioner, the State of Wisconsin, seeks review of a published decision by the court of appeals, State v. Hajicek, 230 Wis. 2d 697, 602 N.W.2d 93 (Ct. App. 1999), which affirmed a La Crosse County Circuit Court order granting a motion to suppress evidence. The circuit court, Judge Dennis G. Montabon presiding, found that the evidence, obtained during a warrantless search of the residence of the respondent, Charles J. Hajicek (Hajicek), was the result of an unlawful police search, not a permitted probation search, as the State claimed. The court of appeals affirmed, holding that the circuit court's determination that the search of Hajicek's residence was a police search was not clearly erroneous.

¶ 2. We reverse. We hold that the determination of whether a search is a police or probation search is a question of constitutional fact reviewed according to a two-step process. First, we review the circuit court's findings of historical fact under the clearly erroneous standard. Second, we review the circuit court's determination of constitutional fact de novo. We apply this two-step standard of review and hold that the search of Hajicek's residence was a probation search.

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¶ 3. The determination that the search of Hajicek's residence was a probation search is not the end of our inquiry. We must also determine whether the search, as a probation search, was reasonable. Such a search is reasonable if the probation officer has "reasonable grounds" to believe that a probationer has contraband. In applying that standard, we hold that the probation search of Hajicek's residence was reasonable.

I

¶ 4. In the summer of 1997, Hajicek was on probation with minimal supervision due to a 1995 conviction of possession of marijuana with intent to deliver. On August 20, 1997, Hajicek's probation officer, Lynn Hightire (Hightire), received an anonymous tip that Hajicek was involved in drug use, drug trafficking, or both. Shortly after receiving the tip, Hightire ordered a urinalysis for Hajicek. On August 28, 1997, Hightire confirmed the information contained in the tip with the La Crosse County Sheriff's Department and forwarded Hajicek's file to the Corrections Supervisor in La Crosse County, William Hammes (Hammes).

¶ 5. Hammes decided to conduct a search of Hajicek's residence. On approximately August 28, 1997, Hammes contacted Investigator Kurt Papenfuss (Papenfuss) of the La Crosse County Sheriff's Department and Special Agent Jim Sielehr (Sielehr) of the Wisconsin Department of Justice, Division of Narcotics Enforcement (DNE) to verify the information contained in the tip. Papenfuss and Sielehr told Hammes that the DNE was investigating Hajicek and searching Hajicek's garbage for evidence of drug trafficking in order to obtain a search warrant. Sielehr asked Hammes to delay his search so that the DNE could continue its investigation. Hammes agreed, and, during the delay of less than four weeks, did not contact Hajicek or order a urinalysis for him.

¶ 6. On September 24, 1997, Papenfuss, Sielehr, and DNE Special Agent Peter M. Thelen (Thelen) contacted Hammes and told him that the DNE had failed to obtain sufficient evidence for a search warrant of Hajicek's residence. Hammes told Papenfuss that he would proceed with his search of Hajicek's residence and asked Papenfuss for assistance with the search. Papenfuss agreed to assist. Fifteen minutes before the search, Papenfuss notified the assistant district attorney of the impending search.

¶ 7. Hammes, Papenfuss, Sielehr, Thelen, and probation agent Michael Johnson (Johnson) went to Hajicek's residence. When Hajicek answered the door, Hammes identified himself and told Hajicek that he was there to conduct a search of the residence. Before Hammes and Johnson proceeded with the search, Papenfuss and Sielehr secured Hajicek's residence by walking through the house. Sielehr and Thelen watched Hajicek as Hammes and Johnson conducted the search. Papenfuss followed Hammes as Hammes searched Hajicek's bedroom. After Hammes found the drug Percocet in Hajicek's bedroom, Hammes placed Hajicek on a probation hold for possession of the Percocet. Sielehr then placed Hajicek under arrest. ¶ 8. Hammes asked Hajicek if there was any marijuana in the residence. Hajicek told Hammes about a duffel bag in the garage that contained approximately seven and one half pounds of marijuana. After Hammes searched the garage and found the marijuana, the law enforcement officers decided to take Hajicek to jail and then to obtain a search warrant. In the meantime, Hammes searched Hajicek's truck and found a large amount of cash. Thelen was present during the search of the truck.

¶ 9. Law enforcement officers returned to Hajicek's residence with a search warrant. Based upon the evidence found during the execution of the initial search warrant, they later obtained two additional search warrants.

¶ 10. On November 3, 1997, Hajicek was charged with five felony drug offenses and one misdemeanor drug offense.¹ On December 1, 1997, Hajicek moved to suppress the evidence found as a result of Hammes's and Johnson's search of his residence and the subsequent searches by the law enforcement officers. The circuit court granted Hajicek's motion, concluding that the search of Hajicek's residence was an unlawful police search and that the evidence was obtained in violation of the Fourth Amendment.

¶ 11. The circuit court concluded that the search was a police search based on the following five findings of historical fact: (1) the law enforcement officers dictated the timing of the search because Hammes delayed the search at the request of law enforcement; (2) the law enforcement officers that participated in the search were the same officers that failed to obtain a search warrant during their investigation of Hajicek; (3) the law enforcement officers notified the assistant district attorney before conducting the search; (4) the law enforcement officers and the probation officers both failed to document their communications regarding the delay of Hammes' search; and (5) Hammes did not carry out the objectives of probation supervision during the delay of the search, since he failed to supervise Hajicek and to order a urinalysis of him. The circuit court determined that these five findings of historical fact indicated that law enforcement objectives took precedence over probation objectives, turning the search of Hajicek's residence into a police search.

¶ 12. The court of appeals affirmed the circuit court's suppression order. The court of appeals concluded that the determination of whether a search is a police or probation search is a question of historical fact. The court of appeals relied on State v. Griffin, 131 Wis. 2d 41, 388 N.W.2d 535 (1986),aff'd, Griffin v. Wisconsin, 483 U.S. 868 (1987), and State v. Flakes, 140 Wis. 2d 411, 410 N.W.2d 614 (Ct. App. 1987), to support its conclusion. According to the court of appeals, the fact that both opinions use the word "finding" to describe the determination of whether a search is a police or probation search implies that it is a question of historical fact. The court of appeals also relied on United States v. Jarrad, 754 F.2d 1451 (9th Cir. 1985) and United States v. Richardson, 849 F.2d 439 (9th Cir. 1988). In both cases the Ninth Circuit held that the determination of whether a search is a police or probation search is a question of fact reviewed under a clearly erroneous standard. Jarrad, 754 F.2d at 1454; Richardson, 849 F.2d at 441.²

¶ 13. The court of appeals treated the circuit court's determination that the search of Hajicek's residence was a police search as a question of historical fact, and held that the determination was not clearly erroneous. According to the court, there was sufficient evidence in the record to support the five findings of historical fact relied on by the circuit court.

II

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¶ 14. The first issue we address concerns the standard of review. The determination of whether a search is a police or probation search presents a question of constitutional fact. A question of constitutional fact is "one whose determination is `decisive of constitutional rights.'" State v. Martwick, 2000 WI 5, ¶ 17, 231 Wis. 2d 801, 604 N.W.2d 552 (citations omitted). The United States Supreme Court has stated that constitutional facts are "issues which, though cast in the form of determinations of fact, are the very issues to review [for] which this Court sits." Watts v. Indiana, 338 U.S. 49, 51 (1949). In Watts, the Court held that the voluntariness of a confession is a question of constitutional fact, though cast in the form of historical fact. 338 U.S. at 51-52. The Court held that the determination of voluntariness is a question of constitutional fact because the determination requires the application of a constitutional standard to uncontroverted facts. Id. at 51. Likewise, we conclude that the determination of whether a search is a police or probation search requires a conclusion based on uncontroverted facts. Consequently, the determination of whether a search is a police or probation search is a question of constitutional fact. It is a question whose "determination is `decisive of constitutional rights.'" Martwick, 2000 WI 5 at ¶ 17.

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¶ 15. A question of constitutional fact presents a mixed question of fact and law...