State v. Tarrell, 75--110--CR

CourtUnited States State Supreme Court of Wisconsin
Citation74 Wis.2d 647,247 N.W.2d 696
Docket NumberNo. 75--110--CR,75--110--CR
PartiesSTATE of Wisconsin, Respondent, v. Lucius Lynn TARRELL, Appellant.
Decision Date14 December 1976

David C. Pappas, Madison, on brief, for appellant.

Bronson C. La Follette, Atty. Gen., and Marguerite M. Moeller, Asst. Atty. Gen., on brief, for respondent.

BEILFUSS, Chief Justice.

The defendant challenges his conviction in several respects. Upon review he contends:

1. His compelled presence at the police station and the taking of his photograph by the police violated the fourth amendment of the United States Constitution.

2. The trial court erred in admitting evidence of other crimes and incidents.

3. The trial court abused its discretion in reading the victim's entire testimony to the jury.

4. The evidence was not sufficient to support a finding of guilty.

5. A new trial in the interest of justice should be granted.

On Sunday morning, August 25, 1974, a child, K.B., an eleven-year-old girl, her mother, father and ten-year-old brother, stopped at a grocery store-restaurant on their way home from church. The mother and father entered the grocery store and K.B. and her brother waited outside near the entry way.

K.B. was approached by a middle aged male. After a short conversation, the man took K.B. by the hand and wrist and led her up a half-flight of stairs to a landing. He lifted up her skirt and fondled her crotch area and kissed her. He asked who her folks were and when she told him he indicated he knew them and left the area, going between cars through the parking lot. K.B. immediately went to her parents and informed her mother of what had transpired. Her father re-entered the store to inquire as to who the man was. The employees of the store had not seen him but reported the incident to the police.

The police interviewed K.B., her parents and her brother. K.B. gave a description of her assailant and the police subsequently notified the parents they knew of some suspects.

The defendant Tarrell was on a ten-year probationary period for a violation of sec. 944.12, Stats., enticing a child for immoral purposes. He had pleaded guilty to this charge on October 9, 1969, and was receiving outpatient psychiatric treatment.

The defendant's probation agent was contacted by the local police on August 25, 1974, the day of the incident in question. The probation agent requested the defendant to come to his office on August 28, 1974, and on that date discussed the K.B. incident with him. The probation agent told the defendant to meet him at the local police station on September 3, 1974. He did so and his photograph was taken at that time.

A photographic display containing the photographs of seven individuals was assembled. One of the seven was the photograph of the defendant. A police officer and the probation agent took the photo display to the home of K.B. She was asked to look at the display to determine whether she could identify any of the photos as a picture of the man 'that had bothered her.' She looked at the display and circled the picture of the defendant. A complaint was filed and the defendant Tarrell was arrested the next day.

A jury trial was conducted on January 28--30, 1975. The defendant admitted he had been at Dick's, the store where the offense took place, about the same time that the crime was committed but produced a number of witnesses who were with him at that time. K.B. testified that the man who committed the crime was wearing a 'brown suit with a gold shirt and a gold and brown stripe tie.' Another witness testified that she saw Tarrell in the store wearing a suit but couldn't remember the color. The defense produced a number of witnesses who testified that Tarrell was wearing 'wild' plaid pants and a brown shirt without coat or tie. Tarrell testified that he neither saw nor talked to the victim on August 25, 1974.

The state introduced evidence as to Tarrell's past crime of enticing a child for immoral purposes and as to other occurrences of a similar nature for which Tarrell was not charged. This evidence was admitted over objection of defense counsel.

Tarrell was found guilty on January 30, 1975, and subsequently committed to Central State Hospital under the provisions of sec. 975.06, Stats.

The defendant Tarrell, who was on probation, as stated above, was told by his probation agent to go to the police station to have his picture taken. He complied with this order but contends that this required appearance was an unconstitutional seizure of his body and that the subsequent photographic seizure of his person was also unconstitutional in that they violated the fourth amendment of the United States Constitution. He argues that his pretrial motion to suppress this evidence should have been granted and that all subsequent identifications were tainted.

The courts recognize that probationers do retain some fourth amendment rights. 1 'It is not the law that a person convicted of a previous offense loses his constitutional guarantees.' State v. Mier, 254 Wis. 180, 184, 35 N.W.2d 196, 198 (1948). Concomitantly, this court has recognized that there are constitutional limitations on conditions of probation. 2 The question is what is the extent of this protection.

The fourth amendment requirement is that searches and seizures be reasonable. In State v. Bell, 62 Wis.2d 534, 539--40, 215 N.W.2d 535, 539 (1974), this court noted that the United States Supreme Court

'. . . has stated that the ultimate standard set forth in the Fourth Amendment is reasonableness. Cady v. Dombrowski (1973), 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706. This court has consistently adhered to the view that reasonableness is to be determined by the facts and circumstances presented in each case. State v. Pires (1972), 55 Wis.2d 597, 201 N.W.2d 153; State v. Davidson (1969), 44 Wis.2d 177, 170 N.W.2d 755; Edwards v. State (1968), 38 Wis.2d 332, 156 N.W.2d 397. The fundamental rule applicable to searches and seizures is that warrantless searches are per se unreasonable under the Fourth Amendment except under certain well-defined circumstances. Johnson v. United States (1948), 333 U.S. 10, 13--14, 14, 68 S.Ct. 367, 92 L.Ed. 436; Coolidge v. New Hampshire (1971), 403 U.S. 443, 454--455, 91 S.Ct. 2022, 29 L.Ed.2d 564.'

Discussing this fundamental rule that warrantless searches are unreasonable, in State v. Elam, 68 Wis.2d 614, 621, 229 N.W.2d 664, 668 (1975), this court quoted from Coolidge v. New Hampshire, supra:

"Thus the most basic constitutional rule in this area is that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions.' The exceptions are 'jealously and carefully drawn,' and there must be 'a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative."'

If there is to be an exception to the requirements of the fourth amendment granting probation agents a limited right to search or seize a probationer without a warrant, the foundation for this exception lies in the nature of probation itself. Probation, like parole, 'is an integral part of the criminal justice system and has as its object the rehabilitation of those convicted of crime and the protection of the state and community interest.' State ex rel. Niederer v. Cady, 72 Wis.2d 311, 322, 240 N.W.2d 626, 633 (1976). While probation is a privilege, not a matter of right, 3 once it has been granted this conditional liberty can be forfeited only by breaching the conditions of probation. A sentencing judge may impose conditions which appear to be reasonable and appropriate. Sec. 973.09, Stats. A sentence of probation places the probationer 'in the custody of the department' subject to the conditions of probation and rules and regulations of the Department of Health & Social Services. Sec. 973.10. All conditions, rules and regulations must be imposed with the dual goal of rehabilitation of the probationer and protection of the public interest. The imposition of these conditions, rules and regulations demonstrates that while a probationer has a conditional liberty, this liberty is neither as broad nor as free from limitations as that of persons who have not committed a crime. The expectations of privacy of a person on probation cannot be the same as the expectations of privacy of persons not on probation. It is only the reasonable expectations of privacy which the fourth amendment protects. 4 Conditions of probation must at times limit the constitutional freedoms of the probationer. Necessary infringements on these freedoms are permissible as long as they are not overly broad and are reasonably related to the person's rehabilitation. By the very nature of probation, limitations on the liberty and privacy of probationers are imposed. These limitations are the bases for an exception to the warrant requirement of the fourth amendment. ' (S)ome forms of search by probation officers are not only compatible with rehabilitation, but, with respect to those convicted of certain offenses, . . . are also essential to the proper functioning of a probationary system.' United States v. Consuelo-Gonzalez, supra at 265.

The ultimate standard set forth in the fourth amendment is reasonableness. One condition of probation requires the probationer to obey all laws of the State of Wisconsin. The agent has a duty to determine whether a probationer is complying with all probation conditions. The agent had confronted Tarrell with reports of other 'sexual incidents' which had occurred and which he admitted were essentially true. Tarrell was on probation for enticing a minor for immoral purposes and his agent was informed that the defendant was a suspect in a similar offense. Because of these other 'sexual incidents,' the similarity between...

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