State v. Hajicek

2001 WI 3, 620 N.W.2d 781, 240 Wis. 2d 349, 2001 Wisc. LEXIS 1

• Court: Wisconsin Supreme Court
• Decided: January 17, 2001
• Docket: 98-3485-CR
• Status: Published

Opinions

N. PATRICK CROOKS, J.

¶ 1. The petitioner, the State of Wisconsin, seeks review of a published decision by the court of appeals, State v. Hajicek, 230 Wis. 2d 697, 602 N.W.2d 93 (Ct. App. 1999), which affirmed a La Crosse County Circuit Court order granting a motion to suppress evidence. The circuit court, Judge Dennis G. Montabon presiding, found that the evidence, obtained during a warrantless search of the residence of the respondent, Charles J. Hajicek (Hajicek), was the result of an unlawful police search, not a permitted probation search, as the State claimed. The court of appeals affirmed, holding that the circuit court's determination that the search of Hajicek's residence was a police search was not clearly erroneous.

¶ 2. We reverse. We hold that the determination of whether a search is a police or probation search is a question of constitutional fact reviewed according to a two-step process. First, we review the circuit court's findings of historical fact under the clearly erroneous standard. Second, we review the circuit court's determination of constitutional fact de novo. We apply this two-step standard of review and hold that the search of Hajicek's residence was a probation search.

¶ 3. The determination that the search of Hajicek's residence was a probation search is not the end of our inquiry. We must also determine whether the search, as a probation search, was reasonable. Such a search is reasonable if the probation officer has "reasonable grounds" to believe that a probationer has contraband. In applying that standard, we hold that the probation search of Hajicek's residence was reasonable.

I

¶ 4. In the summer of 1997, Hajicek was on probation with minimal supervision due to a 1995 conviction of possession of marijuana with intent to deliver. On August 20, 1997, Hajicek's probation officer, Lynn Hightire (Hightire), received an anonymous tip that Hajicek was involved in drug use, drug trafficking, or both. Shortly after receiving the tip, Hightire ordered a urinalysis for Hajicek. On August 28, 1997, Hightire confirmed the information contained in the tip with the La Crosse County Sheriffs Department and forwarded Hajicek's file to the Corrections Supervisor in La Crosse County, William Hammes (Hammes).

¶ 5. Hammes decided to conduct a search of Hajicek's residence. On approximately August 28, 1997, Hammes contacted Investigator Kurt Papenfuss (Papenfuss) of the La Crosse County Sheriffs Department and Special Agent Jim Sielehr (Sielehr) of the Wisconsin Department of Justice, Division of Narcotics Enforcement (DNE) to verify the information contained in the tip. Papenfuss and Sielehr told Hammes that the DNE was investigating Hajicek and searching Hajicek's garbage for evidence of drug trafficking in order to obtain a search warrant. Sielehr asked Ham-mes to delay his search so that the DNE could continue its investigation. Hammes agreed, and, during the delay of less than four weeks, did not contact Hajicek or order a urinalysis for him.

¶ 6. On September 24, 1997, Papenfuss, Sielehr, and DNE Special Agent Peter M. Thelen (Thelen) contacted Hammes¹ and told him that the DNE had failed to obtain sufficient evidence for a search warrant of Hajicek's residence. Hammes told Papenfuss that he would proceed with his search of Hajicek's residence and asked Papenfuss for assistance with the search. Papenfuss agreed to assist. Fifteen minutes before the search, Papenfuss notified the assistant district attorney of the impending search.

¶ 7. Hammes, Papenfuss, Sielehr, Thelen, and probation agent Michael Johnson (Johnson) went to Hajicek's residence. When Hajicek answered the door, Hammes identified himself and told Hajicek that he was there to conduct a search of the residence. Before Hammes and Johnson proceeded with the search, Papenfuss and Sielehr secured Hajicek's residence by walking through the house. Sielehr and Thelen watched Hajicek as Hammes and Johnson conducted the search. Papenfuss followed Hammes as Hammes searched Hajicek's bedroom. After Hammes found the drug Percocet in Hajicek's bedroom, Hammes placed Hajicek on a probation hold for possession of the Percocet. Sielehr then placed Hajicek under arrest.

¶ 8. Hammes asked Hajicek if there was any marijuana in the residence. Hajicek told Hammes about a duffel bag in the garage that contained approximately seven and one half pounds of marijuana. After Hammes searched the garage and found the marijuana, the law enforcement officers decided to take Hajicek to jail and then to obtain a search warrant. In the meantime, Hammes searched Hajicek's truck and found a large amount of cash. Thelen was present during the search of the truck.

¶ 9. Law enforcement officers returned to Hajicek's residence with a search warrant. Based upon the evidence found during the execution of the initial search warrant, they later obtained two additional search warrants.

¶ 10. On November 3,1997, Hajicek was charged with five felony drug offenses and one misdemeanor drug offense.¹ On December 1, 1997, Hajicek moved to suppress the evidence found as a result of Hammes's and Johnson's search of his residence and the subsequent searches by the law enforcement officers. The circuit court granted Hajicek's motion, concluding that the search of Hajicek's residence was an unlawful police search and that the evidence was obtained in violation of the Fourth Amendment;

¶ 11. The circuit court concluded that the search was a police search based on the following five findings of historical fact: (1) the law enforcement officers dictated the timing of the search because Hammes delayed the search at the request of law enforcement; (2) the law enforcement officers that participated in the search were the same officers that failed to obtain a search warrant during their investigation of Hajicek; (3) the law enforcement officers notified the assistant district attorney before conducting the search; (4) the law enforcement officers and the probation officers both failed to document their communications regarding the delay of Hammes' search; and (5) Hammes did not carry out the objectives of probation supervision during the delay of the search, since he failed to supervise 'Hajicek and to order a urinalysis of him. The circuit court determined that these five findings of historical fact indicated that law enforcement objectives took precedence over probation objectives, turning the search of Hajicek's residence into a police search.

¶ 12. The court of appeals affirmed the circuit court's suppression order. The court of appeals concluded that the determination of whether a search is a police or probation search is a question of historical fact. The court of appeals relied on State v. Griffin, 131 Wis. 2d 41, 388 N.W.2d 535 (1986), aff'd, Griffin v. Wisconsin, 483 U.S. 868 (1987), and State v. Flakes, 140 Wis. 2d 411, 410 N.W.2d 614 (Ct. App. 1987), to support its conclusion. According to the court of appeals, the fact that both opinions use the word "finding" to describe the determination of whether a search is a police or probation search implies that it is a question of historical fact. The court of appeals also relied on United States v. Jarrad, 754 F.2d 1451 (9th Cir. 1985) and United States v. Richardson, 849 F.2d 439 (9th Cir. 1988). In both cases the Ninth Circuit held that the determination of whether a search is a police or probation search is a question of fact reviewed under a clearly erroneous standard. Jarrad, 754 F.2d at 1454; Richardson, 849 F.2d at 441.²

¶ 13. The court of appeals treated the circuit court's determination that the search of Hajicek's residence was a police search as a question of historical fact, and held that the determination was not clearly erroneous. According to the court, there was sufficient evidence in the record to support the five findings of historical fact relied on by the circuit court.

II

¶ 14. The first issue we address concerns the standard of review. The determination of whether a search is a police or probation search presents a question of constitutional fact. A question of constitutional fact is "one whose determination is 'decisive of constitutional rights.'" State v. Martwick, 2000 WI 5, ¶ 17, 231 Wis. 2d 801, 604 N.W.2d 552 (citations omitted). The United States Supreme Court has stated that constitutional facts are "issues which, though cast in the form of determinations of fact, are the very issues to review [for] which this Court sits." Watts v. Indiana, 338 U.S. 49, 51 (1949). In Watts, the Court held that the volunta-riness of a confession is a question of constitutional fact, though cast in the form of historical fact. 338 U.S. at 51-52. The Court held that the determination of voluntariness is a question of constitutional fact because the determination requires the application of a constitutional standard to uncontroverted facts. Id. at 51. Likewise, we conclude that the determination of whether a search is a police or probation search requires a conclusion based on uncontroverted facts. Consequently, the determination of whether a search is a police or probation search is a question of constitutional fact. It is a question whose "determination is 'decisive of constitutional rights.'" Martwick, 2000 WI 5 at ¶ 17.

¶ 15. A question of constitutional fact presents a mixed question of fact and law reviewed with a two-step process. Martwick, 2000 WI 5 at ¶ 16; State v. Phillips, 218 Wis. 2d 180, 189, 577 N.W.2d 794 (1998). First, an appellate court reviews the circuit court's findings of historical fact under the clearly erroneous standard.³ Martwick, 2000 WI 5 at ¶ 18. Second, an appellate court reviews the circuit court's determination of constitutional fact de novo. Id.

¶ 16. In Martwick, we faced the issue of the standard of review in a curtilage case. Id. at ¶ 16. In concluding that review of a curtilage determination required a two-step process, we relied on Ornelas v. United States, 517 U.S. 690 (1996). In Ornelas, the United States Supreme Court held that the determination of whether reasonable suspicion or probable cause exist to justify a warrantless search requires a two-step standard of review. 517 U.S. at 699. The Court reviewed the determination of historical facts, the events leading up to the search, for clear error. Id. at 696.⁴ The Court then reviewed the determination of whether the historical facts amount to reasonable suspicion or probable cause de novo. Id. at 696-97. The Court stated that applying a deferential standard of review to a trial court's ultimate determination of probable cause or reasonable suspicion would lead to "varied results" that "would be inconsistent with the idea of a unitary system of law." Ornelas, 517 U.S. at 697. By contrast, the Court stated that applying an independent standard of review to the ultimate determination of reasonable suspicion and probable cause will allow appellate courts to "maintain control of, and to clarify, the legal principles." Id.

¶ 17. We also relied on Wisconsin precedent for our decision in Martwick. We stated that independent review of questions of constitutional fact " 'provide[s] uniformity in constitutional decision-making.'" Martwick, 2000 WI5 at ¶ 20 (quotingPhillips, 218 Wis. 2d at 194). Wisconsin courts have applied this two-step standard of review to "a variety of constitutional challenges." Phillips, 218 Wis. 2d at 190.⁵ In addition, we noted that Wisconsin courts "traditionally appl[y] the two-step standard of review to constitutional search and seizure inquiries." Martwick, 2000 WI 5 at ¶ 20.

¶ 18. Therefore, independent review of the determination of whether a search is a police or probation search is consistent with both federal and Wisconsin precedent. Independent appellate review will provide uniformity in the decisions of whether a search is a police or probation search and will prevent varied results. In addition, independent appellate review provides guidance to litigants, lawyers, and trial courts.

¶ 19. Hajicek contends that the court of appeals was correct in holding that the determination of whether a search is a police or probation search is a question of historical fact. Hajicek argues that the conclusion that the search was a police search is subject only to the clearly erroneous standard of review. Hajicek presents three arguments that we will address in turn.

¶ 20. First, Hajicek argues that Wisconsin precedent supports the historical fact conclusion. In both State v. Griffin and State v. Flakes, the word "finding" was used to describe the determination that a search was a lawful probation search. While Hajicek concedes that the word "finding" does not always refer to historical facts, Hajicek argues that in both cases the court implied that the determination of whether a search is a police or probation search is a question of historical fact because the court did not apply a de novo standard of review.

¶ 21. We reject this argument. The word "find" can refer to a historical fact or to a legal conclusion, as Hajicek concedes. However, Hajicek is incorrect that State v. Griffin and State v. Flakes implied that the probation search determination is a question of historical fact. Neither State v. Griffin nor State v. Flakes clearly delineates the proper standard of review to apply to the conclusion that a search is either a police or probation search.

¶ 22. Second, Hajicek argues that we should be persuaded by the decisions of the United States Court of Appeals for the Ninth Circuit. According to Hajicek, the Ninth Circuit has held that the determination of whether a search is a police or probation search is a question of fact subject to the clearly erroneous standard of review. Hajicek relies on two Ninth Circuit cases that state that the determination of whether a probation officer acted as a "stalking horse" for police is a "question of fact, reviewed for clear error."⁶ United States v. Richardson, 849 F.2d 439, 441 (9th Cir. 1988)(citing United States v. Jarrad, 754 F.2d 1451, 1454 (9th Cir. 1985)). A "stalking horse" is "[sjomething used to cover one's true purpose; a decoy." The American Heritage Dictionary 1751 (3d ed. 1992). In the context of determining whether a search is a police or probation search, a "stalking horse" is a probation officer who uses his or her authority "to help the police evade the [F]ourth [Ajmendment's warrant requirement." United States v. Harper, 928 F.2d 894, 897 (9th Cir. 1991).

¶ 23. We also reject this argument. As Hajicek concedes, Ninth Circuit precedent is not binding on this court. In addition, we decline to follow the Ninth Circuit's application of the clearly erroneous standard of review because both Ninth Circuit cases state that the "stalking horse" determination depends solely on the single fact of who initiates the search. Richardson, 849 F.2d at 441 (citing Jarrad, 754 F.2d at 1454). We apply de novo review because the determination of whether a search is a police or probation search requires a conclusion based on an analysis of all the facts surrounding the search.

¶ 24. Third, Hajicek argues that the determination of whether a search is a police or probation search is not a question of constitutional fact because there is no constitutional principle to apply. Hajicek relies on our decision in State v. McMorris, 213 Wis. 2d 156, 570 N.W.2d 384 (1997), to support the proposition that the two-step standard of review requires application of a uniform constitutional principle.

¶ 25. Our holding in the instant case is consistent with our holding in McMorris. In McMorris, we held that the determination of "whether an independent source exists for an in-court identification made after a lineup that violated an accused's Sixth Amendment right to counsel" is a question of constitutional fact that requires the two-step standard of review. 213 Wis. 2d at 165. To support our holding, we compared the issue of independent source for an in-court identification to the issue of suppression of evidence. McMorris, 213 Wis. 2d at 164-65.⁷ Likewise, we compare the police or probation search determination to the curtilage determination in Martwick.⁸

¶ 26. In summary, we hold that the determination of whether a search is a police or probation search is a question of constitutional fact that requires application of a two-step standard of review.

r — I I — I hH

¶ 27. We now apply the two-step standard of review to the determination of whether the search of Hajicek's residence was a police or probation search. First, we review the circuit court's findings of historical fact under the clearly erroneous standard. Second, we review the circuit court's conclusion that the search was a police search de novo.

¶ 28. We apply the clearly erroneous standard to the circuit court's findings of historical fact. The five findings of historical fact that the circuit court relied on to conclude that the search was a police search are not clearly erroneous. There is support in the record for each of the five findings which are: (1) the law enforcement officers dictated the timing of the search because Hammes delayed the search at the request of law enforcement; (2) the law enforcement officers that participated in the search were the same officers that failed to obtain a search warrant during their investigation of Hajicek; (3) the law enforcement officers notified the assistant district attorney before the search; (4) the law enforcement officers and the probation officers both failed to document their communications regarding the delay of Hammes' search; and (5) Hammes did not carry out the objectives of probation supervision during the delay of the search, since he failed to supervise Hajicek and to order a urinalysis for him. The circuit court relied on these five findings of historical fact to conclude that the search of Hajicek's residence was a police search.

¶ 29. We apply de novo review to the circuit court's conclusion that the search of Hajicek's residence was a police search. We do not agree with the circuit court's conclusion that the search was a police search. We rely on the circuit court's entire findings of historical fact regarding the events during the search of Hajicek's residence to conclude that the search was a probation search. Before Hammes and Johnson proceeded with the search, Papenfuss and Sielehr secured the residence by walking through the house. As Ham-mes and Johnson conducted the search of Hajicek's residence, Sielehr and Thelen watched Hajicek. Ham-mes conducted the search that resulted in the discovery of Percocet in Hajicek's bedroom and marijuana in Hajicek's garage. The entire findings of historical fact regarding the events during the search demonstrate that probation officers Hammes and Johnson conducted the search and law enforcement officers Papenfuss, Sielehr, and Thelen were present only for protective purposes. Thus, the entire findings of historical fact regarding the events during the search of Hajicek's residence support the conclusion that the search was a probation search.

¶ 30. In addition, our conclusion that the search of Hajicek's residence was a probation search is consistent with Wisconsin precedent. In State v. Griffin, we held that a search was a probation search because the probation officers conducted the search while the police were present only for protection purposes. 131 Wis. 2d 41, 62-63, 388 N.W.2d 535 (1986), aff'd, Griffin v. Wisconsin, 483 U.S. 868 (1987). The probation officers searched Griffin's kitchen, bedroom, and living room while the police officers stayed with Griffin. Id. at 56-57. In the instant case, the probation officers searched Hajicek's bedroom and garage while the law enforcement officers stayed with Hajicek.

¶ 31. Hajicek argues that the circuit court was correct in concluding that the search was a police search based on the five findings of historical fact mentioned above. The circuit court determined that these five findings of historical fact indicate that law enforcement objectives took precedence over probation objectives, turning the search of Hajicek's residence into a police search.

¶ 32. We do not find this argument persuasive. The five findings of historical fact relied on by the circuit court do not necessarily lead to the conclusion that the search of Hajicek's residence was a police search. The five findings of historical fact clearly indicate that probation officer Hammes was cooperating with the law enforcement investigation of Hajicek, but cooperation does not change a probation search into a police search.

¶ 33. Cooperation with law enforcement for the purpose of preventing crime is a specific goal of probation supervision. Wis. Admin. Code § DOC 328.01(5) (June, 1999). The regulations in the Wisconsin Administrative Code provide that a specific goal of probation supervision is "[t]o cooperate with other public and private agencies in activities for the purpose of prevention of crime and to provide alternatives to institutionalization." Id. In addition, Wisconsin precedent supports probation searches based on cooperation between probation officers and law enforcement. For example, the fact that the police provide the information that leads to a probation search does not make the probation search unlawful. State v. Griffin, 131 Wis. 2d at 57; State v. Flakes, 140 Wis. 2d at 427. Therefore, Hammes' cooperation with law enforcement does not change the search of Hajicek's residence from a probation search to a police search.⁹

¶ 34. In summary, the search of Hajicek's residence was a probation search. We reach this conclusion because the probation officers conducted the search while the law enforcement officers were present at the search only for protective purposes, consistent with our holding in State v. Griffin.

IV

¶ 35. We now turn to the question of whether the search of Hajicek's residence was reasonable. All searches and seizures, including probation searches, must be reasonable. U.S. Const, amend. IV; Wis. Const, art. I, § 11.¹⁰ A reasonable search is one supported by a warrant or by probable cause. Griffin v. Wisconsin, 483 U.S. 868, 873 (1987). A warrantless search is unreasonable unless the search falls under a lawful exception. State v. Griffin, 131 Wis. 2d 41, 50, 388 N.W.2d 535 (1986)(citing Cady v. Dombrowski, 413 U.S. 433, 439 (1973)), aff'd, Griffin v. Wisconsin, 483 U.S. 868 (1987). The state bears the burden of proving that an exception applies to any given search. State v. Pallone, 2000 WI 77, ¶ 29, 236 Wis. 2d 162, 613 N.W.2d 568.

¶ 36. There is an exception to the warrant requirement for probation searches. Griffin v. Wisconsin, 483 U.S. 868, 875-76 (1987). An exception to the warrant requirement exists when " 'special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.' " Id. at 873 (quoting New Jersey v. T.L.O., 469 U.S. 325, 351 (1985)(Blackmun, J., concurring)). In Griffin v. Wisconsin, the United States Supreme Court upheld the constitutionality of a warrantless search of a probationer's home by probation officers. 483 U.S. at 872. The special need justifying warrantless probation searches is the need to supervise probationers. Id. at 875. By supervising a probationer, the probation officer guarantees that the probationer observes the restrictions placed upon the probationer's liberty during the probation. Id. "These restrictions are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer's being at large." Id. The special need for ensuring that probationers are rehabilitated and that the public is protected creates an exception to the warrant or probable cause requirement for reasonable searches. Id. at 875-76.

¶ 37. The exception to the warrant requirement for probation searches provides that a probation officer may search a probationer's residence if the probation officer has reasonable grounds to believe that a probationer has contraband. State v. Griffin, 131 Wis. 2d 41, 60, 388 N.W.2d 535 (1986), aff'd, Griffin v. Wisconsin, 483 U.S. 868 (1987). In State v. Griffin, we held that a probation officer had reasonable grounds to search Griffin's residence based on the Wisconsin Administrative Code regulations for the supervision of probationers. 131 Wis. 2d at 61-62. The regulations in the Wisconsin Administrative Code set forth a list of factors to be considered in the determination of whether there are reasonable grounds for a probation search. Wis. Admin. Code § DOC 328.21(7) (June, 1999).¹¹

¶ 38. In State v. Griffin, the probation officer had reasonable grounds to search Griffin's residence because the probation officer received information, provided by an anonymous informant, that Griffin may have contraband in his apartment. Id. at 63-64 (citing Wis. Admin. Code § HSS 328.21(6)(b)).¹² In addition, the probation officer had reasonable grounds to search Griffin's residence because the informant was a Beloit detective who had no reason to provide false information. Id. at 64 (citing Wis. Admin. Code § HSS 328.21(6)(c) and (d)). Therefore, we held that reliable information that a probationer possesses contraband provided the reasonable grounds for a lawful probation search. Id.

¶ 39. In State v. Flakes, 140 Wis. 2d 411, 427-28, 410 N.W.2d 614 (Ct. App. 1987), the court of appeals held that a probation officer had reasonable grounds to search Flakes' residence based on the factors provided in the Wisconsin Administrative Code. The court held that a probation officer had reasonable grounds to conduct a probation search based on information provided by a police officer. Id. (citing Wis. Admin. Code § HSS 328.21(6)). The police informed Flakes' probation officer about an arrest for marijuana delivery, about their suspicion that Flakes had more marijuana in his apartment, and that Flakes had refused consent for the police to search his apartment. Id. at 427. The court held that detailed information from a reliable source about Flakes' activities, combined with the probation officer's knowledge of Flakes' history, provided the reasonable grounds for a probation search of Flakes' apartment. Id. at 427-28 (citing Wis. Admin. Code § HSS 328.21(6)(b), (c), (d), (e) and (g)).

¶ 40. In the instant case, probation officer Ham-mes had reasonable grounds for a probation search of Hajicek's residence based on the factors provided in the Wisconsin Administrative Code. Hammes searched Hajicek's residence based on information provided by an informant. Wis. Admin. Code § DOC 328.21(7)(b) (June, 1999). Hammes received an anonymous tip that Hajicek was involved in drug use, drug trafficking, or both. Hammes searched Hajicek's residence because the information contained in the anonymous tip was reliable and the informant was reliable. Wis. Admin. Code § DOC 328.21(7)(c) and (d) (June, 1999). The La Crosse County Sheriff s Department and the DNE verified the information contained in the anonymous tip by telling Hammes that the information was similar to information that they had from their investigation of Hajicek. Following the application of the factors for reasonable grounds applied in State v. Griffin and State v. Flakes, we conclude that reliable information from a reliable source that a probationer possesses contraband provides reasonable grounds for a probation search of the probationer's residence.

¶ 41. There is nothing in the record to persuade us that Hammes did not have reasonable grounds for the probation search of Hajicek's residence. The fact that Hammes delayed his search at the request of law enforcement does not affect the reasonable grounds for the search. There is no requirement in the regulations in the Wisconsin Administrative Code that a probation officer must search a probationer's residence as soon as the probation officer has the reasonable grounds to do so. The state has satisfied its burden in this case.

V

¶ 42. In conclusion, we hold that the determination of whether a search is a police or probation search is a question of constitutional fact reviewed with a two-step process. First, an appellate court reviews the circuit court's findings of historical fact under the clearly erroneous standard. Second, an appellate court reviews the circuit court's finding of constitutional fact de novo. We apply the two-step standard of review and hold that the search of Hajicek's residence was a probation search. We further hold that the probation search of Hajicek's residence was reasonable. Accordingly, we reverse the court of appeals decision that affirmed the circuit court's order granting Hajicek's motion to suppress the evidence obtained in the search.

By the Court. — The decision of the court of appeals is reversed and the case is remanded to the circuit court.

1 The five felony counts are as follows: (1) possession of narcotic controlled substance with intent to deliver while within 1000 feet of certain places as drug repeater in violation of Wis. Stat. § 961.41(lm)(a); (2) possession of marijuana with intent to deliver within 1000 feet of certain places as drug repeater in violation of Wis. Stat. § 961.41(lm)(h)3; (3) possession of cocaine within 1000 feet of certain places as drug repeater in violation of Wis. Stat. § 961.41(3g)(c); (4) possession of a Schedule II narcotic controlled substance while within 1000 feet of certain places as drug repeater in violation of Wis. Stat. § 961.41(3g)(a)l; and (5) possession of a Schedule I narcotic controlled substance while within 1000 feet of certain places as drug repeater in violation of Wis. Stat. § 961.41(3g)(a)l.

The misdemeanor charge was for possession of Schedule IV controlled substance while within 1000 feet of certain places as an habitual criminal in violation of Wis. Stat. § 961.41(3g)(b).

2 In United States v. Jarrad, the court used the phrase "clearly erroneous" to describe the standard of review. 754 F.2d 1451, 1454 (9th Cir. 1985). In United States v. Richardson, the court cited to Jarrad for the standard of review but used the phrase "clear error." 849 F.2d 439, 441 (9th Cir. 1988).

3 The phrase "clearly erroneous" is used to describe the standard of review for findings of fact in Wis. Stat. § 805.17(2).

4 In Ornelas v. United States, the Court stated that" 'clear error' is a term of art derived from Rule 52(a) of the Federal Rules of Civil Procedure, and applies when reviewing questions of fact." 517 U.S. 690, 695 n.3 (1996).

5 In State v. Phillips, we provided several examples of constitutional challenges that appellate courts review independently of a trial court's conclusion. 218 Wis. 2d 180, 190, 577 N.W.2d 794 (1998).

6 The "stalking horse" determination is the same as the determination of whether a search is a police or probation search. If a probation officer is a "stalking horse" for police, then the search is a police search.

7 In State v. McMorris we stated:

[t]his court has not previously discussed the applicable standard of review in determining whether an independent source exists for an in-court identification made after a lineup that violated an accused's Sixth Amendment right to counsel. The court has, however, considered the standard of review applicable to an analogous issue of attenuation in the Fourth Amendment context. In State v. Anderson, 165 Wis. 2d 441, 447-48, 477 N.W.2d 277 (1991), this court characterized as a constitutional fact the question whether evidence should be suppressed as the fruit of a prior illegal search or whether the evidence was sufficiently attenuated so as to he purged of the taint.

213 Wis. 2d 156,164-65, 570 N.W.2d 384 (1997).

8 Both the police or probation search determination and the curtilage determination are questions of constitutional fact because both are decisive of constitutional rights. The curtilage determination is decisive of constitutional rights because "the area in question is so intimately tied to the home itself that it should be placed under the home's 'umbrella' of Fourth Amendment protection." United States v. Dunn, 480 U.S. 294, 301 (1987). Likewise, the police or probation search determination is decisive of constitutional rights because the nature of the search determines the scope of Fourth Amendment protection. A police search must be based on a warrant issued upon probable cause or an exception to the warrant requirement, while a probation search must be based on reasonable grounds.

9 In addition, the less than four-week delay of the search is consistent with the terms of Hajicek's probation supervision status. At the time of the search, Hajicek was on probation with minimum supervision. Minimum supervision requires only that the probation officer meet with the probationer once every 90 days. Wis. Admin. Code § DOC 328.03(22) (June, 1999).

10 The Fourth Amendment to the United States Constitution states:

[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Article I, Section 11 of the Wisconsin Constitution states:

[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

Both the United States Constitution and the Wisconsin Constitution guarantee the right to be free from unreasonable searches and seizures. We ordinarily interpret Article I, Section 11 of the Wisconsin Constitution in accordance with the United States Supreme Court's interpretation of the Fourth Amendment. Phillips, 218 Wis. 2d at 195.

11 The following factors are to be considered in the determination of whether a probation officer has reasonable grounds to conduct a probation search:

(a) The observations of staff members, (b) Information provided by informants, (c) The reliability of the information provided by an informant. In evaluating the reliability of the information, the [probation officer] shall give attention to the detail, consistency and corroboration of the information provided by the informant, (d)

The reliability of the informant. In evaluating the informant's reliability, attention shall be given to whether the informant has reason to supply inaccurate information, (e) The activity of the [probationer] that relates to whether the [probationer] might possess contraband or might have used or be under the influence of an intoxicating substance, (f) Information provided by the [probationer] that is relevant to whether the [probationer] has used, possesses or is under the influence of an intoxicating substance or possesses any other contraband, (g) The experience of a staff member with that [probationer] or in a similar circumstance, (h) Prior seizures of contraband from the [probationer], (i) The need to verify compliance with rules of supervision and state and federal law.

Wis. Admin. Code § DOC 328.21(7).

12 Chapter HSS 328 was renumbered Chapter DOC 328 in April, 1990. In Chapter HSS 328, the list of factors for reasonable grounds was set forth in subsection six. In Chapter DOC 328, the list of factors for reasonable grounds is set forth in subsection seven.