State v. West

• Decision Date: 22 June 1994
• Docket Number: No. 92-1017-CR,92-1017-CR
• Citation: 185 Wis.2d 68,517 N.W.2d 482
• Parties: , 63 USLW 2078 STATE of Wisconsin, Plaintiff-Respondent, v. Colleen (NMI) WEST, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 482

517 N.W.2d 482

185 Wis.2d 68, 63 USLW 2078

STATE of Wisconsin, Plaintiff-Respondent, v. Colleen (NMI) WEST, Defendant-Appellant-Petitioner.

No. 92-1017-CR.

Supreme Court of Wisconsin.

Argued March 31, 1994.

Decided June 22, 1994.

For plaintiff-respondent the cause was argued by Gregory M. Posner-Weber, Asst. Atty. Gen., with whom on the brief was James E. Doyle, Atty. Gen.

Amicus curiae brief was filed by Eric Schulenburg, Madison, for American Civil Liberties Union of Wisconsin Foundation, Inc. DAY, Justice.

This is a review of a published court of appeals decision affirming a judgment of the circuit court for Dane County, Honorable Robert R. Pekowsky, Judge. ¹ We affirm the court of appeals.

The defendant, Ms. Colleen West (Ms. West), and her co-defendant, Paul Clark (Mr. Clark), were charged with sixty-eight counts of theft under sec. 943.20, Stats. Ms. West was charged as a repeat offender under sec. 939.62, Stats. She was convicted and sentenced after a plea agreement, whereby she pleaded "no contest" to five of the counts.

The charges were based upon stolen property found during a warrantless and nonconsensual search of Mr. Clark's apartment which he shared with Ms. West. The search was conducted against Mr. Clark, a parolee, pursuant to Wis.Admin.Code sec. DOC 328.21(3), hereinafter, DOC 328.21(3). ² When the search was executed, the officers found Ms. West occupying the apartment. The officers explained that they were conducting a search on Mr. Clark pursuant to Department of Corrections (DOC) regulations. Ms. West's consent was not sought. A large amount of stolen property was discovered during the search. The stolen property was eventually seized at another location and was used as evidence against Ms. West.

Ms. West brought a motion in the circuit court to suppress the evidence of the stolen property found during the search of the apartment, claiming that the search of Mr. Clark's apartment violated her Fourth Amendment protection against unreasonable searches and seizures. The circuit court denied her suppression motion, based in part on what the court phrased as a lack of "standing" to challenge the propriety of the search. Ms. West then entered the plea agreement.

On appeal, Ms. West challenged her conviction and the circuit court's dismissal of her motion to suppress the evidence obtained following the search of Mr. Clark's apartment. ³ The court of appeals affirmed the circuit court's dismissal of Ms. West's suppression motion and affirmed her conviction, but it rejected the "standing" terminology used by the circuit court. Instead the court of appeals concluded that Ms. West's motion should be denied because she had no reasonable expectation of privacy because the apartment was Mr. Clark's and she knew he was a parolee. West, 179 Wis.2d at 191, 507 N.W.2d 343.

Ms. West then petitioned for review in this court, which was granted. Review was sought only as to the search and seizure question. We conclude that the search and seizure were valid and that the evidence found in the search may be used against Ms. West. We therefore affirm the decision of the court of appeals. However, we modify the rationale of the court of appeals. We conclude that Ms. West did have a reasonable expectation of privacy in the apartment, but because her control of the apartment was shared with Mr. Clark, the parole search could validly extend to all those areas in which Mr. Clark enjoyed common authority.

The background of this case is framed by two important facts. The first fact is that Mr. Clark, Ms. West's companion and co-defendant in the circuit court case, leased an apartment in Madison and allowed Ms. West to occupy the apartment. Mr. Clark retained access to the apartment, maintained possessions at the apartment, and stayed at the apartment with Ms. West many times during the couple of months it was leased. In short, they shared the apartment.

The next important fact is that Mr. Clark was on parole. As a parolee, Mr. Clark was subject to certain conditions on his release as elaborated in Wis.Admin.Code, sec. DOC 328. Among the conditions placed on Mr. Clark's release on parole was the requirement that he refrain from committing further criminal acts while on parole and the requirement that he report his residence(s) to the DOC and local law enforcement authorities. See, Griffin v. Wisconsin, 483 U.S. 868, 870-871, 107 S.Ct. 3164, 3167, 97 L.Ed.2d 709 (1987), affirming State v. Griffin, 131 Wis.2d 41, 388 N.W.2d 535 (1986); State v. Tarrell, 74 Wis.2d 647, 653-655, 247 N.W.2d 696 (1976).

Mr. Clark's activities had come under suspicion of the DOC officials. They suspected that Mr. Clark was engaged in criminal activity despite being on parole. They also suspected that Mr. Clark was maintaining an unreported apartment in Madison. Mr. Clark's only reported residence was in Pardeeville. He never did report his Madison apartment to the proper authorities. Following events which need not be described here, Mr. Clark was held in Columbia County jail. While detained, Mr. Clark was asked by a parole officer whether he had an unreported apartment in Madison. Mr. Clark denied that he had any such apartment. Soon thereafter, however, the police were able to confirm the existence of Mr. Clark's "secret" apartment in Madison when the apartment manager provided the police with a copy of a lease for an apartment with Mr. Clark's name on it. ⁴

Based on this information, the DOC concluded that it had "reasonable grounds" to believe that Mr. Clark was violating the conditions of his parole under sec. DOC 328.21(3). As noted above, Section DOC 328.21(3) authorizes the search of a "client's living quarters or property" if there are "reasonable grounds to believe that the quarters or property contain contraband." A search of the unreported apartment of Mr. Clark was therefore ordered by the DOC pursuant to DOC 328.21(3). ⁵ The purpose of the search, as the circuit court found, was both to verify whether Mr. Clark was living at the apartment and to ascertain whether he was hiding stolen property or contraband at the apartment. Mr. Clark, who had denied having such an apartment and who was still being held in the Columbia County jail, was not informed that the search had been authorized.

The search was conducted by four officers, one parole officer accompanied by three police officers. When the officers arrived at the apartment, they could hear someone inside. The person inside turned out to be Ms. West. The officers knocked repeatedly, but no one answered. The officers then obtained a key from the apartment manager. They were still unable to secure entry, however, because the door was deadbolted. Soon thereafter the officers noticed Ms. West in the window, signaled to her, and she then opened the door.

The officers entered the apartment, identified themselves, and announced that they were there to conduct a search of Mr. Clark's apartment. At first Ms. West denied that this was Mr. Clark's apartment or that he had lived there. She also wanted to know if the officers had a warrant. The officers responded that they had evidence that Mr. Clark did live there and that they did not need a warrant to conduct a parole search against Mr. Clark. After the officers told Ms. West that they had a copy of Mr. Clark's lease for the apartment, Ms. West admitted that this was in fact Mr. Clark's apartment, but she claimed he had sublet it to her.

As the search progressed and the officers noticed more and more stolen property, Ms. West admitted that Mr. Clark had stayed there many times with her, sometimes up to a week at a time. She also claimed that many of the things in the apartment were his. The officers also found additional evidence that Mr. Clark had resided at the apartment, at least periodically, including mens clothing and mens toiletries.

The search covered the entire apartment, including one room which was locked with a padlock. The officers asked Ms. West if she had a key to the room. Initially she denied having a key, but she then produced a key which the officers used to open the door. The room contained many items which were later found to be stolen.

The officers spent several hours taking inventory of the items found in the apartment and writing down serial numbers. The officers found cameras, cellular phones, car phones, dozens of radar detectors, a computer, an electronic keyboard, sunglasses, clothing, and many other items, most all of which turned out to be stolen. The officers also found a stun gun and a kit to convert an M-16 rifle into a full automatic.

When the police left Mr. Clark's apartment after the search they warned Ms. West not to remove the items which they suspected were stolen. However, when the police returned with a search warrant eight days later, the apartment was empty. The police were able to contact Ms. West and she explained that she had left the apartment and had put the suspected stolen property in a storage locker. She agreed to take the police to the storage locker and had even made them a key. When they arrived at the storage location, Ms. West signed a "Consent to Search" form. The police then seized the stolen property in the storage locker. At least some of these items seized from the locker were subsequently used as evidence against Ms. West.

Ms. West acknowledges that the State has the basic authority to conduct warrantless and nonconsensual searches against parolees such as Mr. Clark, pursuant to sec. DOC 328.21. Although she reserves to herself the right to challenge the conduct of this specific search, it is undisputed that the general practice of probation (and parole) searches was clearly upheld by the United States Supreme Court in Griffin, 483 U.S. 868, 107 S.Ct. 3164. It is Ms. West's basic contention, however, that what is allowed as to parolees is not allowed against nonparolees, and that a nonparolee should not be made to suffer the...