State v. West

• Decision Date: 02 September 1993
• Docket Number: No. 92-1017-CR,92-1017-CR
• Citation: 179 Wis.2d 182,507 N.W.2d 343
• Parties: , 62 USLW 2199 STATE of Wisconsin, Plaintiff-Respondent, v. Colleen (NMI) WEST, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 343

507 N.W.2d 343

179 Wis.2d 182, 62 USLW 2199

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

No. 92-1017-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs March 11, 1993.

Opinion Filed Sept. 2, 1993.

Opinion Released Sept. 2, 1993.

Before EICH, C.J., and DYKMAN and SUNDBY, JJ.

SUNDBY, Judge.

In Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), the United States Supreme Court held that the warrantless, nonconsensual search of a probationer's home by state probation officers pursuant to Wis.Adm.Code sec. HSS 328.21(3) (1981), was not an unreasonable search under the fourth amendment to the United States Constitution. In this case we decide that defendant Colleen West, who shared an apartment rented by parolee Paul Clark, did not have a legitimate expectation of privacy which precluded a parole officer from searching the apartment pursuant to Wis.Adm.Code sec. DOC 328.21(3)(a) without her consent and without obtaining a search warrant. We further hold that property subsequently seized by police as a result of such search was not the fruit of an unreasonable search.

West also claims that the record does not show that a Minnesota forgery conviction was a crime which the trial court could consider under sec. 939.62(3)(b), Stats., to enhance her sentence. We conclude that her no contest plea to the charges in the criminal information which contained a repeater allegation constituted an admission under sec. 973.12, Stats., of the repeater allegation. We therefore reject West's claims and affirm the trial court's judgment.

BACKGROUND

Defendant West was charged in a criminal complaint and information with sixty-eight counts of misdemeanor and felony theft, each as a repeat offender. Sections 943.20 and 939.62, Stats. She was charged with theft of personal property found during a November 23, 1988 search of an apartment West shared with parolee ¹ Paul Clark, and later seized pursuant to a search warrant. At the time of the search, Clark was in jail.

It is undisputed that neither Clark nor West consented to the search. The search was conducted by Clark's Probation and Parole Agent James Trameri, City of Madison Police Department Detective Mark Twombly In their search of the apartment, the officers discovered numerous items of electronic equipment and recorded the serial numbers. The police later determined that some of the items seen in the apartment had been reported stolen. They obtained a search warrant which they executed on December 1, 1988, finding the apartment empty. West later told the police that she had moved the contents to a storage locker. She consented to a search of the storage locker which revealed a majority of the items previously seen by the officers in the apartment. The police seized the items.

and two other police officers. Defendant Colleen West was present and objected to the search.

The trial court denied West's motion to suppress the evidence seized as a result of these searches. West then entered negotiated pleas to five counts of the information, all of which charged felonies. West did not file a motion for postconviction relief under sec. 809.30, Stats. She appeals from the judgment of conviction and sentence.

STANDARD OF REVIEW

Whether the search of the apartment West shared with Clark violated her right to be free from an unreasonable search under the fourth amendment is a question of constitutional law which we review independently and without deference to the circuit court, except insofar as the conclusions of the circuit court may be persuasive. State v. Guzman, 166 Wis.2d 577, 586, 480 N.W.2d 446, 448, cert. denied, 504 U.S. 978, 112 S.Ct. 2952, 119 L.Ed.2d 575 (1992).

West's argument that the record is insufficient to support the state's repeater allegation requires application of sec. 973.12, Stats., to the undisputed facts. The application of a statute to undisputed facts presents a question of law, which we also decide without deference to the trial court. Guertin v. Harbour Assurance Co., 141 Wis.2d 622, 627, 415 N.W.2d 831, 833 (1987).

I. THE FIELD SUPERVISION SEARCH

Wisconsin Adm.Code sec. DOC 328.21 provides:

(1) General Policy. A search of a client or the client's living quarters or property may be made at any time, but only in accordance with this section.

....

(3) Search of Living Quarters or Property. (a) A search of a client's living quarters or property may be conducted by field staff if there are reasonable grounds to believe that the quarters or property contain contraband. Approval of the supervisor shall be obtained unless exigent circumstances, such as suspicion the parolee will destroy contraband or use a weapon, require search without approval.

"Client" "means a person who is committed to the custody of the department [of corrections] for correctional purposes and is under field supervision of the department...." Wisconsin Adm.Code sec. DOC 328.03(5). Thus, "client" includes a parolee. "Field staff" "means the professional and paraprofessional workers of the [department] assigned the responsibility for the control, supervision, and provision of program services to clients." Wisconsin Adm.Code sec. DOC 328.03(18). Thus, "field staff" includes parole agents and probation officers.

In Griffin, the Court held that the Wisconsin Administrative Code rules and regulations authorizing the department's employees to conduct a warrantless search of a probationer's living quarters satisfied the fourth amendment's reasonableness requirement. 483 U.S. at 872-73, 107 S.Ct. at 3167-68. West does not challenge Griffin's correctness. She argues that her rights were not affected by Clark's status and that the authorities had no right based upon Wis.Adm.Code sec. DOC 328.21 to search her residence and dwelling without a warrant and without her consent. ² West further argues that "all doubts regarding this matter have been resolved by the ... recent United States Supreme Court decision in Minnesota v. Olson, [495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990) ]." In Olson, the police made a warrantless, nonconsensual entry into a house where Olson was an overnight guest, and arrested him. The Court held that the arrest violated Olson's fourth amendment rights. The Court said that Olson's status as an overnight guest was enough to show that he had an expectation of privacy in the home that society is prepared to recognize as reasonable. 495 U.S. at 96-97. West argues that if she would have had a reasonable expectation of privacy had she been Clark's overnight guest, "it is very clear that her status as regular resident, exercising full dominion and control confers standing on her."

The state asserts that Olson holds that an overnight guest's expectation of privacy is derived from the host's degree of control over the premises. We disagree. Olson holds that the guest's expectation of privacy is analyzed from the guest's perspective. The Court said: "From the overnight guest's perspective, he seeks shelter in another's home precisely because it provides him with privacy, a place where he and his possessions will not be disturbed by anyone but his host and those his host allows inside." Id. at 99, 110 S.Ct. at 1689. West's expectation of privacy was based on her belief that she and her possessions could not be disturbed by anyone because the living quarters she shared with Clark were her home. However, West had only a limited expectation of privacy because Clark's status as a parolee allowed department field staff to make a warrantless, nonconsensual search of Clark's living quarters, which West shared in full knowledge of Clark's parolee status.

There are few decisions on the effect of a parolee's or probationer's status upon the privacy rights of those who live with the parolee or probationer. The state asks us to adopt the reasoning of Russi v. Superior Court of Napa County, 33 Cal.App.3d 160, 168-69, 108 Cal.Rptr. 716, 720-21 (1973), and later decisions of the California Court of Appeals. In Russi, a cotenant of a probationer contended that as to him, a warrantless, nonconsensual search of the premises was constitutionally unreasonable because he did not consent to the search or waive his fourth amendment rights. The court rejected Russi 's contention, holding that "if the entry and search was reasonable and lawful as to the probationer cotenant, [Russi 's] consent is irrelevant and he is in no position to claim that the officers did not have the right to search the premises and seize any contraband discovered in the process." Id. at 168, 108 Cal.Rptr. at 720 (emphasis in original). As to the narcotics and drug paraphernalia seized by the police in their search, the court said:

There would be a gross moral and legal incongruity in a requirement that police blind themselves to evidence discovered in a lawful search that may implicate a third person while the use of the same or other evidence is permitted against a probationer who faces both a new prosecution and revocation of probation.

Id. at 169, 108 Cal.Rptr. at 720-21.

While we agree with the result reached by the California Court of Appeals, we disagree with the court's apparent assumption that the issue was Russi's "standing" to object to the search. The "standing" analysis of fourth amendment violation claims was rejected by the United States Supreme Court in Rakas v. Illinois, 439 U.S. 128, 138-48, 99 S.Ct. 421, 427-33, 58 L.Ed.2d 387 (1978). The appropriate analysis is whether the person claiming fourth amendment protection against an unreasonable search has a legitimate expectation of privacy in or to the property or person searched. Whether the person invoking the protection of the fourth amendment can claim a legitimate expectation of privacy "normally embraces two discrete questions." Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979). The first is whether the individual, by his or...