State v. Payano-Roman

• Decision Date: 18 May 2006
• Docket Number: No. 2004AP1029-CR.,2004AP1029-CR.
• Citation: 2006 WI 47,714 N.W.2d 548
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Tomas R. PAYANO-ROMAN, Defendant-Appellant.
• Court: Wisconsin Supreme Court

714 N.W.2d 548

2006 WI 47

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Tomas R. PAYANO-ROMAN, Defendant-Appellant.

No. 2004AP1029-CR.

Supreme Court of Wisconsin.

Argued February 22, 2006.

Decided May 18, 2006.

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For the plaintiff-respondent-petitioner the cause was argued by Stephen W. Kleinmaier, assistant attorney general, with whom on the briefs was Peggy A. Lautenschlager, attorney general.

For the defendant-appellant there was a brief and oral argument by Timothy A. Provis, Port Washington.

¶ 1 ANN WALSH BRADLEY, J

The petitioner, State of Wisconsin, seeks review of a published court of appeals' decision that reversed a judgment convicting Tomas Payano-Roman of possession of heroin.¹ The State asserts that the court of appeals erred in overturning the circuit court's determination that the administration of a laxative to Payano-Roman was not a government search subject to the Fourth Amendment. It further asserts that, even if administration of the laxative was a government search, the search was reasonable.

¶ 2 We determine that the administration of the laxative that resulted in the recovery of a baggie of heroin from Payano-Roman's stool was a government search. However, we conclude that the search was reasonable. Therefore, Payano-Roman's Fourth Amendment rights were not violated. We reverse the court of appeals.

I

¶ 3 The background facts are taken from testimony offered at the suppression hearing. We reference additional facts from the hearing as needed in the analysis portion of this opinion.

¶ 4 In April 2002, Milwaukee County Deputy Sheriff Scott Stiff and Special Agent Corey Parker were conducting surveillance of a residence at 1525 West Mitchell Street. They had received information from an informant that a person who went by the name "Mingo" was trafficking cocaine and possibly heroin out of a Toyota Tercel station wagon, license plate number T19401, parked outside the residence.

¶ 5 The officers observed a man matching the informant's physical description of "Mingo" come from the rear of the residence, enter a vehicle with another individual, then access the driver's compartment of a Tercel with license plate number T19401. The officers approached the man, who was Payano-Roman, and identified themselves as police.

¶ 6 From approximately four to six feet away, Deputy Stiff observed Payano-Roman look at him then put a clear plastic baggie containing a white powdery or chunky substance into his mouth. Based upon the packaging of the substance, Stiff believed it was heroin.

¶ 7 Payano-Roman began swallowing large amounts of air as if to swallow the baggie. The officers told him to spit out the baggie, and they attempted to recover it but were unsuccessful. They arrested Payano-Roman for possession of a controlled substance and placed him in handcuffs.

¶ 8 Deputy Stiff contacted his supervisor, who indicated he would call an ambulance. After the ambulance and a fire truck arrived at the scene, the officers explained to the ambulance personnel and firefighters that Payano-Roman had possibly swallowed heroin. Payano-Roman was conveyed to a hospital, and Deputy Stiff rode in the ambulance with him.

¶ 9 The hospital staff asked for information so that they could provide appropriate medical treatment, and the officers explained to the staff what they had observed Payano-Roman ingest. Deputy Stiff was told by the staff that it was hospital policy to admit Payano-Roman for his safety because it could be fatal if the bag containing the suspected heroin broke. Similarly, Agent Parker was told that Payano-Roman was being admitted to the hospital for possible ingestion of a controlled substance that could lead to an overdose.

¶ 10 Payano-Roman was eventually placed in a private hospital room, where he remained handcuffed. At least one officer stayed with him at all times.

¶ 11 Starting at approximately 6:00 or 7:00 p.m., Payano-Roman was given a cup of a liquid laxative called "Go Lightly" to drink every twenty or thirty minutes.² He did not speak English, but a Spanish-speaking nurse explained to him how much of the laxative he would have to drink over a specific period of time. Agent Parker, who spoke some Spanish, gave Payano-Roman the laxative approximately six times, telling him "here you go, you got to take this again."

¶ 12 The officers advised hospital personnel that they wanted to examine Payano-Roman's stool, and the hospital provided a portable toilet. The officers told Payano-Roman that he had to use the portable toilet for defecation. Early the next morning, Payano-Roman had a bowel movement in the portable toilet, while one or both officers observed him from just outside his hospital room. Agent Parker examined Payano-Roman's stool and recovered the baggie. The contents in the baggie were later tested and determined to be heroin.

¶ 13 The State charged Payano-Roman with possession of heroin. He filed a motion seeking to suppress the evidence, arguing that the administration of the laxative constituted an unreasonable search under the Fourth Amendment. The State argued that the Fourth Amendment did not apply because it was the private action of hospital personnel that allowed the officers to find and recover the heroin. The circuit court ruled that Payano-Roman's Fourth Amendment rights were not violated because medical personnel made the decision to administer the laxative out of concern for his health. Payano-Roman then pled guilty but appealed the judgment of conviction.

¶ 14 The court of appeals reversed the judgment. It determined that the search was government action because the State failed to introduce testimony from qualified medical personnel demonstrating that the administration of the laxative was necessary to protect Payano-Roman's health. Thus, the court reasoned, the only logical conclusion was that the laxative was administered to assist police in recovering evidence. Applying a three-factor balancing test from Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985), the court of appeals further determined that the search was unreasonable. The State petitioned for review.

II

¶ 15 This case presents two issues: (1) whether the administration of the laxative that resulted in the recovery of the baggie of heroin from Payano-Roman's stool was a government search or a private search, and (2) whether, if the search was a government search, it was reasonable under the Fourth Amendment.

¶ 16 We apply a two-step standard of review when reviewing the mixed question of law and fact of whether a search is a private search or a government search. See State v. Hajicek, 2001 WI 3, ¶ 26, 240 Wis.2d 349, 620 N.W.2d 781; State v. Martwick, 2000 WI 5, ¶ 16, 231 Wis.2d 801, 604 N.W.2d 552. We will not overturn the circuit court's findings of evidentiary or historical fact unless clearly erroneous. Hajicek, 240 Wis.2d 349, ¶ 15, 620 N.W.2d 781. However, we independently determine the ultimate question of whether the search was a government search or a private search. See id. Similarly, we apply the same two-step standard to the question of the reasonableness of a search. State v. Trecroci, 2001 WI App 126, ¶ 23, 246 Wis.2d 261, 630 N.W.2d 555.³

III

¶ 17 We turn to address whether the administration of the laxative that resulted in the recovery of the baggie of heroin from Payano-Roman's stool constituted a government search or a private search. Private searches are not subject to the Fourth Amendment's protections because the Fourth Amendment applies only to government action. State v. Rogers, 148 Wis.2d 243, 246, 435 N.W.2d 275 (Ct.App.1988); see also Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 614, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989).

¶ 18 The court of appeals in Rogers stated three requirements that must be met for a search to be a private search:

(1) the police may not initiate, encourage or participate in the private entity's search; (2) the private entity must engage in the activity to further its own ends or purpose; and (3) the private entity must not conduct the search for the purpose of assisting governmental efforts.

Rogers, 148 Wis.2d at 246, 435 N.W.2d 275.

¶ 19 Similarly, a search may be deemed a government search when it is a "joint endeavor" between private and government actors: "[C]ourts which have considered combined efforts of a government official and a private person in a search hold that a search is subject to the fourth amendment prohibition against an unreasonable search if the search is a joint endeavor involving a private person and a government official." State v. Abdouch, 230 Neb. 929, 434 N.W.2d 317, 325-26 (1989); accord Wayne R. LaFave, 1 Search and Seizure § 1.8(b), at 263 (4th ed. 2004) ("A search will also be deemed subject to Fourth Amendment restrictions if it is a `joint endeavor,' involving both a private person and a government official ....") (footnote omitted).

¶ 20 At the same time, however, the mere presence of a government official will not necessarily transform a private search into government action. Rogers, 148 Wis.2d at 246, 435 N.W.2d 275; see also State v. Thompson, 222 Wis.2d 179, 193, 585 N.W.2d 905 (Ct.App.1998) ("officer's presence during [the defendant]'s emergency treatment and surgery did not ... constitute a search under the Fourth Amendment").

¶ 21 The question of whether a search is a private search or a government search is one that must be answered taking into consideration the totality of the circumstances. Skinner, 489 U.S. at 614-15, 109 S.Ct. 1402; United States v. Shahid, 117 F.3d 322, 325 (7th Cir.1997).

¶ 22 The State asserts that the court of appeals failed to recognize that Payano-Roman had the burden of proving government action. When analyzed properly, the State argues, the circuit court's "finding" that the administration of the laxative was a private action is not clearly erroneous.

¶ 23 We agree with the State that...