State v. Young

• Decision Date: 26 July 2022
• Docket Number: 2021AP901-CR
• Parties: State of Wisconsin, Plaintiff-Appellant, v. Frederick W. Young, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

State of Wisconsin, Plaintiff-Appellant, v. Frederick W. Young, Defendant-Respondent.

No. 2021AP901-CR

Court of Appeals of Wisconsin, District I

July 26, 2022

This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5.

APPEAL from an order of the circuit court for Milwaukee County: No 2020CF1483 DANIELLE L. SHELTON, Judge. Reversed and cause remanded with directions.

Before Brash, C.J., Donald, P.J., and Dugan, J.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).

PER CURIAM.

¶1 The State appeals an order granting a suppression motion filed by Frederick W. Young. The circuit court suppressed the evidence that police found during a warrantless search of Young's home. We conclude that the police, acting under the authority of 2013 Wis. Act 79 and WIS. STAT. § 973.09(1d) (2019-20),^[1] properly conducted the search based upon a reasonable suspicion that Young had committed a crime involving the sale of controlled substances. Accordingly, we reverse the suppression order and remand this matter to the circuit court for further proceedings consistent with this opinion.

Background

¶2 The relevant facts are undisputed. The State filed a criminal complaint charging Young with maintaining a drug trafficking place at a residence in the 3600 block of North 3rd Street in Milwaukee.^[2] The complaint reflected that the police acting without a warrant, searched the residence on April 10 2020, and found 588.41 grams of marijuana, along with equipment for drying marijuana, packaging materials, scales a currency counter, mail addressed to Young, and additional documents with Young's name on them.

¶3 Young moved to suppress the evidence found during the search. He acknowledged that Act 79 establishes circumstances under which law enforcement officers may conduct warrantless searches of a person and his or her property and residence if the person is serving a term of community supervision for a felony offense. Further, Young did not deny that he was serving such a term on April 10, 2020, the date of the search. He argued that the search in this case was nonetheless improper because, he contended, the officers lacked reasonable suspicion that he was committing a crime or violating a condition of his supervision at the time of the search.

¶4 The circuit court held a hearing on Young's claim. Two City of Milwaukee police officers, Michael Wagner and Casey Donahue, were the sole witnesses. Both officers described their training and experience in drug investigations, particularly emphasizing their familiarity with hand-to-hand drug transactions. The officers explained that such transactions are brief encounters between two individuals who interact for a few moments, exchange drugs for cash, and then part ways. The officers further testified that, beginning in December 2019, they had received more than twelve tips from an informant, a citizen who lived near the North 3rd Street residence and reported seeing a tall black male with dreadlocks, who appeared to be selling drugs to people in vehicles outside the residence. Donahue went on to testify that the informant had provided photographs and videos "of suspected hand-to-hand drug transactions," as well as text messages about the high volume of traffic in front of the North 3rd Street residence. Additionally, Donahue said that the informant identified Young from a booking photograph as the black male engaged in the suspicious activity.

¶5 Wagner testified that on February 22, 2020, he conducted surveillance of the North 3rd Street residence and observed a tall black male, who matched the informant's description of the suspected drug dealer. The suspect emerged from the North 3rd Street residence, approached a vehicle, leaned into it briefly and exchanged something with the occupant, then went back into the house. Two days later, Wagner and Donahue saw the suspect drive away from the home. They conducted a traffic stop and identified the suspect as Young, but they took no further action at that time.

¶6 Donahue testified that on April 9, 2020, he received additional information from the informant. According to Donahue, the informant reported that Young was "conducting suspected hand-to-hand drug transactions."

¶7 Both officers testified that on April 10, 2020, they saw Young driving a vehicle, and they stopped him after observing that he was not wearing a seat belt and that the vehicle lacked a front license plate. During the course of the traffic stop, the officers conducted a record check and determined that Young was on supervision with the Department of Corrections for a felony conviction.^[3]Donahue then telephoned the informant, who again reported "that he observed suspected hand-to-hand drug transactions within the last [twenty-four] hours."

¶8 Wagner testified that the officers asked Young where he lived, and he replied that he was homeless. Wagner also testified that when he asked Young if the keys hanging from a chain around his neck would provide access to the house on North 3rd Street, Young "tried to act like he didn't know anything about that house." The officers then went to the residence on North 3rd Street, entered it using a key on Young's keychain, and conducted a search. The search uncovered "a large quantity of suspected marijuana."

¶9 At the conclusion of the testimony, the circuit court made findings of fact, largely adopting the testimony of the officers as the factual background for the circuit court's analysis and conclusions. In assessing the facts, the circuit court noted that the officers had not personally observed Young engaging in any conduct that appeared to be a drug transaction after they completed their surveillance on February 22, 2020; and that the officers had time after ending their surveillance to obtain a search warrant for the residence, but that they did not do so. The circuit court further found that Young had a diminished expectation of privacy because he was serving a term of community supervision but, in the circuit court's view, the officers had improperly used Young's supervision status "to circumvent getting a search warrant." The circuit court found that the police "can't use Act 79 as a way to circumvent getting a warrant.... [T]hat's what happened here." The circuit court therefore entered an order suppressing the evidence found during the search. The State appeals.

Discussion

¶10 "The Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution prohibit unreasonable searches and seizures." State v. Artic, 2010 WI 83, ¶28, 327 Wis.2d 392, 786 N.W.2d 430. The normal remedy for an unreasonable search or seizure is suppression of the evidence that the police obtained. See State v. Eason, 2001 WI 98, ¶2 245 Wis.2d 206, 629 N.W.2d 625. When we review a ruling that resolved a suppression motion, we undertake a two-step process in which we review the circuit court's findings of historical fact and then review the application of constitutional principles to those facts. See id., ¶9.

¶11 The first step of our review requires us to "uphold the circuit court's findings of fact unless they are clearly erroneous. A finding of fact is clearly erroneous if it is against the great weight and clear preponderance of the evidence." State v. Anderson, 2019 WI 97, ¶20, 389 Wis.2d 106, 935 N.W.2d 285 (citation omitted). In this case, two police officers testified about the facts leading up to and surrounding the search. The circuit court did not make any explicit findings about the credibility of those witnesses, but the circuit court's findings of facts were based on the officers' testimony and thus, reflected that the circuit court believed the officers. In the absence of explicit credibility findings, "we assume [the circuit court] made implicit findings on a witness's credibility when analyzing the evidence." See State v. Quarzenski, 2007 WI.App. 212, ¶19, 305 Wis.2d 525, 739 N.W.2d 844. As with the circuit court's explicit findings, we will not disturb the circuit court's implicit findings unless they are clearly erroneous. See State v. Boyd, 2011 WI.App. 25, ¶8, 331 Wis.2d 697, 797 N.W.2d 546.

¶12 The second step of our analysis requires us to apply constitutional principles to the facts of record. Anderson, 389 Wis.2d 106, ¶20. We conduct this analysis "independently of the decisions rendered by the circuit court[.]" Id. (citation omitted).

¶13 In this appeal, the State contends that the circuit court erroneously suppressed the evidence found in Young's residence because police lawfully searched that residence based on a reasonable suspicion that Young had committed a crime. Normally, law enforcement officers must have probable cause to believe that they will find evidence of a crime before they may perform a full search of a person or the person's property. See id., ¶2. In Act 79, however, the legislature enacted statutes allowing warrantless searches of a person or the person's property based on the lower standard of reasonable suspicion of criminal activity if the person is "on a specified probation, parole, or extended supervision status." See Anderson, 389 Wis.2d 106, ¶2 & n.2. Wisconsin courts describe a search of this kind as "an Act 79 search." See Anderson, 389 Wis.2d 106, ¶18.

¶14 As relevant here, Act 79, § 9, created WIS. STAT. § 973.09(1d), which provides, in pertinent part:

If a person is placed on probation for a felony[,] ... the person, his or her residence, and any property under his or her control may be searched by a law enforcement officer at any time during his or her period of supervision if the officer reasonably suspects that the

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