State v. Rowan

• Decision Date: 08 June 2012
• Docket Number: No. 2010AP1398–CR.,2010AP1398–CR.
• Citation: 2012 WI 60,814 N.W.2d 854,341 Wis.2d 281
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Tally Ann ROWAN, Defendant–Appellant.
• Court: Wisconsin Supreme Court

341 Wis.2d 281

814 N.W.2d 854

2012 WI 60

STATE of Wisconsin, Plaintiff–Respondent,

v.Tally Ann ROWAN, Defendant–Appellant.

No. 2010AP1398–CR.

Supreme Court of Wisconsin.

Argued Feb. 7, 2012.

Decided June 8, 2012.

For the defendant-appellant, there were briefs and oral argument by Paul G. LaZotte, assistant state public defender.

For the plaintiff-respondent the cause was argued by Maura F.J. Whelan, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

An amicus curiae brief was filed Anne Bensky and Garvey, McNeil, & Associates, S.C., Madison, on behalf of the Wisconsin Association of Criminal Defense Lawyers.

N. PATRICK CROOKS, J.

[341 Wis.2d 283]¶ 1 This case comes to us on certification from the court of appeals pursuant to Wis. Stat. Rule 809.61 (2009–10). It requires us to address two questions arising from Tally Ann Rowan's convictions. ¹The first question concerns a condition imposed as part of Rowan's extended supervision, which she argues is overly broad and violative of her constitutional rights. The certification asks us to determine “whether a sentencing court violated the Fourth Amendment [to the United States Constitution] or Wis. Const. art. I, § 11, by setting a condition of extended supervision that allows any law enforcement officer to search the defendant's person, vehicle, or residence for firearms, at any time and without probable cause or reasonable suspicion.”

¶ 2 The facts of this case are important to the circuit court's decision to impose the above condition on Rowan's extended supervision, as the circuit court noted. Rowan's arrest and convictions resulted from an incident on March 13, 2008, during which a police officer observed Rowan drive erratically, run a stop sign, and crash into a pole. Rowan appeared intoxicated and agitated. She cursed emergency responders, and asked them where her gun was while reaching toward the floor of her car. Police later discovered a semiautomatic handgun and ammunition on the floor of the driver's side of Rowan's car. Rowan was taken to the hospital for medical treatment and a blood draw, where she was placed under arrest. At the hospital, Rowan was combative, cursing, spitting, and grabbing medical staff. She threatened to kill the officers and medical staff in the emergency room, and further threatened to kill their families. Rowan resisted a police officer who tried to restrain her, and seriously injured the officer's hand.

¶ 3 The circuit court considered the nature of Rowan's crime—involving violence, threats, and a firearm—and Rowan's conduct prior to and during the trial. The court stated, “The scope of persons that she threatened was quite expansive and shows at least at that point an unusual level of risk to the public while she was in this mind set.” Further, the court noted that Rowan was charged in a separate case with threatening a judge. There was also testimony from a gun shop owner that Rowan had purchased several guns after the March 13, 2008, incident at issue and before she was sentenced. In prescribing the search condition, the circuit court relied on these facts that reflect Rowan's history of violence and threats, which often involved firearms.

¶ 4 We hold that while the condition that the circuit court imposed on Rowan's extended supervision “may impinge on constitutional rights,” ² it does not violate them. The supervision condition imposed in this case does not violate Rowan's constitutional rights because the circuit court made an individualized determination, pursuant to the circuit court's authority under Wis. Stat. § 973.01(5), that the condition was necessary based on the facts in this case—involving violence, threats, and a firearm. It conforms with the applicable two-part test—that it is “not overly broad” and that it is “reasonably related” to Rowan's rehabilitation.³ It is instructive that the United States Supreme Court determinedin Samson v. California⁴ that a suspicionless search of a prisoner who has been released but remains under supervision by corrections officials, which includes a person released under community supervision, was reasonable under the Fourth Amendment. It based that conclusion on such persons' severely diminished privacy expectations and the State's great interest in preventing such persons from reoffending.⁵ The State relies on Samson in arguing that the condition here does not violate Rowan's constitutional rights. Rowan counters that Samson's holding is distinguishable because it relied heavily on California's statute authorizing suspicionless searches, while the condition imposed here was made solely on a sentencing court's authority. We hold that under the facts of this case, the condition imposed satisfies both parts of the applicable test and therefore does not violate Rowan's rights under the Fourth Amendment to the United States Constitution or Wisconsin Constitution Article I, Section 11.

¶ 5 The second question presented by this case concerns the sufficiency of the evidence in regard to Rowan's conviction for battery to a police officer. One of the elements of that crime that must be proved beyond a reasonable doubt is that the officer who is the victim was “acting in an official capacity” at the time of the battery. Rowan argues that the evidence was insufficienton that element, because the evidence showed that the officer was assisting a nurse who was performing a medical procedure, which she claims is not what the officer is employed to do. The State argues that in restraining a combative person who was under arrest, the officer was “acting in an official capacity” at the time of the injury. Under the standard of review that applies to a sufficiency of the evidence challenge, our review of the trier of fact's findings is highly deferential. The jury heard that the officer was dispatched to the hospital by her employer; that she assisted fellow officers and medical staff with Rowan, a combative suspect who was under arrest for drunk driving; and that Rowan was at the hospital for a blood draw, without her consent, as part of the investigation of a crime. Given the standard of review that governs this challenge, we are satisfied that the evidence presented to the jury, “viewed most favorably to the state and the conviction,” is not “so lacking in probative value and force that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt.” ⁶

¶ 6 For the reasons stated herein, we affirm the judgment of the circuit court.

I. BACKGROUND

¶ 7 The series of events that led to Rowan's convictions began when a police officer on patrol started following Rowan's vehicle after seeing her drive erratically and run a stop sign around 2 a.m. on March 13, 2008. Moments later, Rowan crashed into a pole. At the scene of the accident she appeared intoxicated and was highly agitated. She cursed emergency responders and reached toward the floor while asking them where her gun was, apparently trying to locate the semiautomatic handgun that police later recovered from the floor on the driver's side of the vehicle, along with a box of ammunition. At the hospital where Rowan was taken for emergency medical treatment and a blood draw, she was placed under arrest and continued to be combative, cursing, spitting, grabbing medical staff, and threatening to kill them and their families. Before the blood draw when a police officer stationed at the side of her hospital bed attempted to restrain her, Rowan resisted and seriously injured the officer's hand. Rowan was charged with five counts related to the March 13 incident: in one case, she was charged with battery to a law enforcement officer ⁷, obstructing an officer, and carrying a concealed weapon; in a second case, she was charged with OWI, third offense, and operating with a prohibited alcohol content (PAC). A jury convicted Rowan on all counts. For the battery conviction, which is the only conviction relevant to this appeal, Rowan was sentenced to one year and two months of initial confinement and three years of extended supervision. Among the conditions of extended supervision imposed by the sentencing court was the condition that is the focus of this appeal: that “[Rowan's] person or her residence or her vehicle is subject to search for a firearm at any time by any law enforcement officer without probable cause or reasonable suspicion.” ⁸ The circuit court noted, “I think the constitution would require the search be done in a reasonable manner.”

[341 Wis.2d 290]¶ 8 It is helpful to a complete understanding of the circuit court's reasoning that we set forth an excerpt from the hearing on the post-conviction motion where the circuit court put its analysis and the factual basis for the condition on the record:

In this case, I think the argument is fair, if I was saying that with every case no matter what, [defendant is subject to] search for anything. What I'm going to do is modify that a little bit to say any law enforcement officer can search her person, her premises or any vehicle she is riding in at any time without probable cause to search for a firearm. Limit that infringement on her Fourth Amendment right to firearms. The reason why I'm tailoring is to balance her constitutional rights against achieving these two goals.

This case is notable in certain respects. First of all, it did involve a firearm. It involved a concealed firearm carried in a vehicle. It was a concealed firearm that she threatened to use against an officer at a time when she had possession of it.

She also threatened emergency personnel on the scene. She threatened the doctor in the emergency room. She threatened the officers in the emergency room. She threatened medical staff. She threatened the family of those persons. There is even a discussion about threatening somebody's grandmother.... The scope of persons that she threatened was quite expansive and shows at least at that point an unusual level of...