State v. Hajicek

602 N.W.2d 93, 230 Wis. 2d 697, 1999 Wisc. App. LEXIS 1099

• Court: Court of Appeals of Wisconsin
• Decided: September 30, 1999
• Docket: 98-3485-CR
• Status: Published

Opinions

DEININGER, J.

The State appeals an order suppressing evidence collected during a warrantless search of Charles Hajicek's residence. The trial court determined that the search was not a probation search as the State maintained, but a police search conducted in violation of the Fourth Amendment. We conclude that the question of whether a search involving both law enforcement and probation officers constituted a police search or a probation search is a factual one, which we review for clear error. We further conclude that the trial court's finding that the evidence in this case was discovered during a police search was not clearly erroneous. We thus affirm the trial court's suppression order, inasmuch as the State has not shown that the challenged search comes within any recognized exception to the warrant requirement.

BACKGROUND

Hajicek was convicted in 1995 of possessing marijuana with intent to deliver, and he was placed on probation. His probation had progressed to minimal supervision in the summer of 1997. In August of that year, Hajicek's probation officer received an anonymous tip that Hajicek was involved in drug use or trafficking. The probation officer ordered a urinalysis, confirmed the information contained in the tip with the La Crosse County Sheriffs Department, and forwarded Hajicek's file to the La Crosse County Office of Community Corrections. Probation Supervisor William Hammes received the file and decided to conduct a search of Hajicek's residence.

In verifying information contained in the file, Hammes contacted Agent Sielehr of the Wisconsin Department of Justice, Division of Narcotics Enforcement (DNE), and Investigator Papenfuss of the La Crosse County Sheriffs Department. Hammes learned that the DNE was investigating Hajicek for drug trafficking and was searching his garbage for evidence with which to obtain a search warrant. Agent Sielehr asked Hammes to refrain from conducting a home search so that the DNE could pursue its investigation. After seeking advice from the regional chief of probation and parole, Hammes agreed to postpone his search. To avoid interfering with the DNE investigation, Hammes also refrained from contacting Hajicek.

Over the next three weeks, law enforcement officials tried to obtain sufficient evidence of drug activity to obtain a search warrant for Hajicek's residence. On September 24, 1997, Papenfuss phoned Hammes and informed him that the DNE's efforts had failed. Ham-mes decided during the phone call to conduct a search of Hajicek's residence and requested assistance from Papenfuss. Papenfuss responded that DNE Agents Sielehr and Thelen were also available at that time to assist with the search. Hammes called Papenfuss back five minutes later to confirm arrangements for an immediate search of Hajicek's residence. Investigator Papenfuss then contacted the district attorney and notified him of the impending search.

Hammes, Investigator Papenfuss, Agents Sielehr and Thelen, and a La Crosse probation officer went to Hajicek's residence. Hammes knocked on the door and Hajicek answered. After identifying himself to Hajicek, Hammes began to search the residence. As Hammes began his search, the law enforcement officers secured the house. Hammes discovered a drug identified as Percocet in Hajicek's bedroom, and placed Hajicek on a probation hold. Hammes then asked Hajicek if he had any marijuana on the premises, and Hajicek directed him to a duffel bag in the garage filled with a large amount of marijuana. At this point, law enforcement officers removed Hajicek from the premises and procured a search warrant. Law enforcement later obtained two additional warrants.

Based on the evidence gathered in these searches, the State charged Hajicek with four counts of drug possession and two of possession with intent to deliver. Hajicek moved to suppress the evidence gathered in the searches, alleging that the evidence was gathered in violation of the Fourth Amendment. The trial court granted his motion. The State appeals.¹

ANALYSIS

Both the Fourth Amendment to the United States Constitution and Article I, section 11 of the Wisconsin Constitution prohibit unreasonable searches and seizures.² Warrantless searches are per se unreasonable unless they fall within a few carefully delineated exceptions. See State v. Boggess, 115 Wis. 2d 443, 449, 340 N.W.2d 516, 520 (1983). A search warrant is not required, however, for the search of a probationer's residence by probation officials. See State v. Griffin, 131 Wis. 2d 41, 388 N.W.2d 535 (1986), aff'd sub nom. Griffin v. Wisconsin, 483 U.S. 868 (1987).

A probation officer may search a probationer's residence without a warrant if the officer has reasonable grounds to believe that the probationer is violating the terms of his or her probation. See Griffin, 131 Wis. 2d , 388 N.W.2d at 541; see also Griffin v. Wisconsin, 483 U.S. 868, 872-76 (1987). This narrow exception, however, applies only to. searches conducted by probation officials. See Griffin, 131 Wis. 2d at 56-57, 388 N.W.2d at 540-41. It does not extend to searches conducted by the police. See id. Although police officers and probation officers may work together to achieve their legitimate objectives, a probation officer may not serve as a "stalking horse" for the police.³ That is, a probation search, which is constitutionally justifiable on less than probable cause, may not be used as a subterfuge to further a criminal investigation. See State v. Flakes, 140 Wis. 2d 411, 426-27, 410 N.W.2d 614, 620 (Ct. App. 1987); United States v. Martin, 25 F.3d 293, 296 (6th Cir. 1994); United States v. Harper, 928 F.2d 894, 897 (9th Cir. 1991). A probation officer serves as a "stalking horse" when the officer uses his or her authority to help the police evade the Fourth Amendment's usual warrant and probable cause requirements. See Harper, 928 F.2d at 897.

In its decision and order suppressing the seized evidence, the trial court reviewed the facts set forth in the record and found "that the search was a police search not a probation search." The court determined that Probation Supervisor Hammes "acted at the behest of law enforcement" and that law enforcement objectives dominated the search of Hajicek's residence. The court noted that "[l]aw enforcement determined first when the search would not take place, and after their own investigation faltered, determined when the search could take place." Because the initial search was conducted without a warrant and did not fall within the exception to the warrant requirement for probation searches, the trial court suppressed the evidence seized in both the initial search and the subsequent warrant searches, the latter having been authorized on the basis of information obtained in the initial search.

The parties dispute the standard we are to apply in reviewing the trial court's determination that this was a police search and not a probation search. Whether a given search is reasonable under the Fourth Amendment is a question of constitutional fact, and we review such questions de novo. See Griffin, 131 Wis. 2d at 62, 388 N.W.2d at 543. Findings of evidentiary or historical fact, however, will not be set aside on appeal unless they are contrary to the great weight and clear preponderance of the evidence.⁴ See id. We must first decide, therefore, whether the trial court's determination that the search of Hajicek's residence was a police search established a constitutional fact or a historical fact. We conclude it was the latter.

No Wisconsin appellate decision addresses directly the question of whether a trial court's determination that an alleged probation search was actually a police search is subject to our de novo review, or whether it constitutes a factual finding we review only for clear error. The supreme court has implied, however, that the determination is a finding of evidentiary or historical fact. See id. at 63, 388 N.W.2d at 543 ("The record before the trial court also supports its finding that this was not a police search.") (emphasis added). This court has also implied that it is a factual finding. See Flakes, 140 Wis. 2d at 426, 410 N.W.2d at 620 ("The trial court found that there was no credible evidence to find that the parole agent 'was a stalking horse or agent for the Milwaukee Police Department.'") (emphasis added).

Although the proper standard of review for the question before us is a matter of first impression in Wisconsin, federal courts have addressed the issue. The Ninth Circuit has concluded that the police search versus probation search issue "is a question of fact, reviewed for clear error." See United States v. Richardson, 849 F.2d 439, 441 (9th Cir. 1988); see also United States v. Jarrad, 754 F.2d 1451, 1454 (9th Cir. 1985) ("This is a question of fact subject to the 'clearly erroneous' standard of review, even though the ultimate issue of whether the search conforms to the Fourth Amendment presents a mixed question of fact and law."). We find the Ninth Circuit's conclusion persuasive because it makes explicit what the Wisconsin precedents noted above strongly imply.

The State urges us to reject the Ninth Circuit analysis and to conclude instead that the issue at hand raises a question of law which must be reviewed independently of the trial court's determination. The State, however, cites no precedent from any jurisdiction holding that whether a given search is a probation search or a police search is a question of law (or one of "constitutional fact"). The State insists that its assertion is supported by State v. Flakes, where we said: "Whether a search is reasonable is a question of constitutional fact, which we review independent of the trial court's conclusion." Flakes, 140 Wis. 2d at 426, 410 N.W.2d at 620. We agree with the cited proposition, but disagree that it provides any support for the State's contention.

The ultimate issue before this court is indeed the reasonableness of the search, which is a question we decide de novo. Only after the relevant facts are established, however, may we apply the appropriate Fourth Amendment standard of reasonableness to them. In particular, we cannot commence the reasonableness inquiry in this case until we know whether the search of Hajicek's residence was a police search or a probation search. If it was a warrantless police search, we would consider whether the State had established its reasonableness under one of the recognized exceptions to the warrant requirement.⁵ If it was a probation search, we would consider instead whether Hammes had "reasonable grounds" to believe that probationer Hajicek had contraband within his residence. See Griffin, 131 Wis. 2d at 60, 388 N.W.2d at 542.

The dissent claims that we are somehow avoiding the "constitutional connection" by concluding that the police-versus-probation search question is a factual one, and it implies that we should first inquire whether Probation Supervisor Hammes had reasonable grounds to search Hajicek's residence. Dissent at 715-16. The dissent's approach, however, essentially collapses our customary two-step review (factual findings for clear error, followed by de novo application of constitutional standards to the facts as found) into one step; at a minimum, it reverses our customary order in addressing these questions. We do not agree that "the determination that an agent has acted as a stalking horse also determines that a probationer has been subject to an unconstitutional search.” Dissent at 716. That determination only tells us where we are to begin our de novo constitutional inquiry — with the standards of reasonableness applicable to warrantless police searches, or with the lesser standards applicable to probation searches. The dissent's approach short-circuits the inquiry by jumping ahead to a conclusion that the present search would have been reasonable if it had been a probation search, and reasoning that since that is the case, the probation agent could not have been a stalking horse for the police. Dissent at 716-17.

We believe that under the dissent's approach to the questions before us, the precedents which draw a distinction between the Fourth Amendment standards applicable to police searches and those applicable to probation searches are rendered meaningless. All that law enforcement personnel would ever have to do to get inside the residence of a probationer being investigated for criminal activity, would be to inform the probationer's agent of the suspected activity, thereby giving the agent reasonable grounds to conduct a probation search, with which the police would, of course, gladly assist. It is, however, precisely this potential use of probation personnel as "stalking horses" in law enforcement's hunt that has given rise to the precedents we apply in this opinion.

The dissent also implies that because the police-versus-probation search determination is based on historical facts or events, and because Fourth Amendment reasonableness determinations are also based on historical facts and events, the present determination must also be one of constitutional fact. Dissent at 715. We cannot accept this logic. Just because questions of law are based upon a review of factual findings, it does not necessarily follow that certain factual findings cannot themselves be derived from other facts of record. An example is intent, which can rarely be proven directly, and is usually derived or inferred from other facts — what was said and done, etc. But, the derivative nature of a finding of intent makes it no less of a factual finding, one that will not be set aside on appeal unless it is clearly erroneous. See State v Lettice, 221 Wis. 2d 69, 77, 585 N.W.2d 171, 175-76 (Ct. App. 1998); State v. McCollum, 159 Wis. 2d 184, 193-94, 464 N.W.2d 44, 47 (Ct. App. 1990).

We noted in McCollum that "[t]he line between historical fact and constitutional fact is 'often fuzzy at best.'" McCollum, 159 Wis. 2d at 194, 464 N.W.2d at 47 (citation omitted). Nonetheless, we concluded that the trial court's finding regarding the State's motivation and intent in selectively bringing criminal charges against only women was a factual one, to be reviewed under the clearly erroneous standard. See id. We noted that "issues of intent are commonly treated as factual matters," and that "[d]eciding whether a discriminatory purpose exists demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Id. at 194, 464 N.W.2d at 47 — 48 (citations omitted). The same is true of the determination at issue here, which also involves an assessment of the motivations and intent of state actors, the police and probation officials who were involved in the search of Hajicek's residence. We conclude that the trial court is much better positioned than we to determine, after a "sensitive inquiry into [the] circumstantial and direct evidence" before it, whether the search was motivated, directed and timed to serve law enforcement needs and purposes, or those of probation supervision! See id.

The trial court's determination that the challenged search was a police search is not immune from our review, however. We have concluded that the determination is one of evidentiary or historical fact, which we may set aside, but only if it is contrary to the great weight and clear preponderance of the evidence. See Flakes, 140 Wis. 2d at 426, 410 N.W.2d at 620. The State conceded in its opening brief that it did "not dispute the trial court's findings of fact." The State undoubtedly would not have made this concession had it known that we would reject its assertion that we must review de novo the trial court's determination that a police search had occurred. Accordingly, we proceed to an inquiry of whether the trial court clearly erred in finding that the search of Hajicek's residence was a police search.

In undertaking our review of the trial court's factual finding we are mindful that "due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Section 805.17(2), STATS. Furthermore, in examining a trial court's factual findings, this court will search the record for evidence to support those findings, not for evidence which would support a finding it did not make. See Estate of Becker, 76 Wis. 2d 336, 347, 251 N.W.2d 431, 435 (1977). We conclude that the trial court did not clearly err in finding that the search of Hajicek's residence was a police search.

The trial court based its ultimate finding that the search of Hajicek's residence constituted a police search primarily on the following underlying facts: (1) law enforcement officers dictated the timing of the search by asking Probation Supervisor Hammes to delay his search by nearly a month and then notifying Hammes when he was free to perform his search; (2) the same law enforcement officers who investigated Hajicek and were unable to obtain probable cause for a search warrant participated in the search; (3) the district attorney was notified before the search was conducted; (4) neither the police officers nor the probation officers documented their communications regarding the search; and (5) by delaying his search and failing to obtain a urinalysis or otherwise confront Hajicek about his suspected illegal activities, Hammes failed to carry out the objectives of the probation supervision.

The record contains evidence to support each of these underlying findings. Law enforcement officers contacted Probation Supervisor Hammes and asked him to postpone his search while they tried to "make [their] case" against Hajicek. Once it became evident that they were unable to establish probable cause, law enforcement officials again contacted Hammes and advised him that their efforts had failed. On receiving the call from law enforcement, Hammes decided to immediately conduct a search of Hajicek's residence, in part to accommodate the availability of DNE agents, and, within an hour, the search was initiated.

The record also suggests that the presence of DNE agents was "unusual" in a probation search. At trial, an expert in the Department of Corrections' procedure testified that justice department officials seldom involve themselves in local probation issues, and that it was unusual that the same officers who had previously investigated Hajicek were available to assist in Ham-mes' search. Also, at the behest of law enforcement, Hammes refrained from contacting Hajicek for three weeks and did not conduct the urinalysis ordered by Hajicek's probation officer because he "didn't want to . . . make [Hajicek] suspicious that law enforcement was conducting an investigation." Hammes failed to document the communications he had with law enforcement officers over the course of those three weeks, and he failed to develop a search plan as required by the Department of Corrections' manual.

In short, the record contains support for the trial court's finding that Probation Supervisor Hammes' handling of the search failed to carry out the goals of probation supervision.⁶ The court's finding that the search was a police search, one that was timed and directed to further the needs of law enforcement and not those of probation supervision, is not contrary to the great weight and clear preponderance of the evidence produced at the suppression hearing.

Our final task is to determine whether the search of Hajicek's residence was unreasonable within the meaning of the Fourth Amendment. As we have noted, a warrantless police search is unreasonable unless it falls within one of several narrow exceptions to the warrant requirement.⁷ The State does not argue that the present record provides a basis for us to conclude that any recognized warrant exception applies to the police search of Hajicek's residence. Thus, the search of Hajicek's residence was per se unreasonable and the evidence seized was properly suppressed. See State v. Boggess, 115 Wis. 2d 443, 449, 340 N.W.2d 516, 520 (1983).

CONCLUSION

For the reasons discussed above, we affirm the appealed order.

By the Court. — Order affirmed.

1 See § 974.05(l)(d)2, STATS.

2 The Fourth Amendment to the United States Constitution provides:

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

The wording of Article I, section 11 of the Wisconsin Constitution is virtually identical. In construing Article I, section 11 of the Wisconsin Constitution, the Wisconsin Supreme Court consistently follows the United States Supreme Court's interpretation of the Fourth Amendment. See State v. Betterley, 191 Wis. 2d 407, 416, 529 N.W.2d 216, 219 (1995).

3 A "stalking horse" is "a horse, or a figure of a horse, behind which a hunter hides in stalking game," or "anything put forward to mask plans or efforts; pretext." The Random House DICTIONARY OF THE ENGLISH LANGUAGE 1855 (2d ed. 1987).

4 "The 'great weight and clear preponderance of the evidence' standard is basically a 'clearly erroneous' standard." State v. Mitchell, 167 Wis. 2d 672, 682 n.1, 482 N.W.2d 364, 368 (1992) (citation omitted).

5 Recognized exceptions to the warrant requirement for police searches include plain view, consent, lawful arrest, exigent circumstances, hot pursuit and "stop and frisk." See State v. Monahan, 76 Wis. 2d 387, 396, 251 N.W.2d 421, 424 (1977).

6 In Griffin v. Wisconsin, 483 U.S. 868, 876-79 (1987), the Court discussed the need for prompt searches when a probation officer reasonably believes a probationer is violating the terms of supervision. "In some cases — especially those involving drugs or illegal weapons — the probation agency must be able to act based upon a lesser degree of certainty that the Fourth Amendment would otherwise require in order to intervene before a probationer does damage to himself or society." Id. at 879. The trial court cited this passage in concluding that Supervisor Hammes' decision to delay the probation search to accommodate the police investigation was contrary to the goals of probation supervision.

7 See footnote 5, above.