Issue1: Whether a trial court finding that a search conducted jointly by probation and police agents was a police rather than probation search is reviewed deferentially.
¶2 …. 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. …¶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.
Issue2: Whether, on the particular facts, including active police involvement in the search of the probationer’s residence by probation officers, the search was a police search and therefore in violation of the warrant requirement.
Holding: “(T)he law enforcement officers were present at the search only for protective purposes,” and their mere cooperation with the probation officer did not change its nature as a probation search. ¶34.
Issue3: Whether the probation officer had reasonable grounds, based on an anonymous tip which was “confirmed” by the local police, to search the probationer’s residence.
¶40 In the instant case, probation officer Hammes 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.
The trial court found that this was a police search, because the probation officer used law enforcement to carry out the search (the police, that is, acted as a “stalking horse” for the p.o.). Instead of deeming this a finding of fact, entitled to deference, the supreme court deems it a “constitutional fact,” reviewed independently, because its existence is “decisive of constitutional rights.” ¶¶14-15. By that reasoning, virtually any “finding” should be reviewed non-deferentially. The dissent points out in thinly veiled terms the result-oriented nature of this approach: “As is evident in the majority opinion, the majority appears to have decided that it wishes to exercise de novo review and then labels the issue as one of constitutional fact.” ¶51. But the majority is still stuck with the trial court’s findings of historical fact (among others: the police prevailed on the p.o. to hold off on a search so that they could conduct their own investigation, during which they unsuccessfully sought a warrant). The supreme court says that these findings show only that the police were present for protective purposes, and that this sort of cooperation with law enforcement doesn’t change a probation search into a police search. ¶¶29-32. That begs at least a couple of questions, namely, whether this was indeed mere cooperation and, more broadly, just what does make a probation search into a police search. The dissent aptly characterizes the background:
¶65 Indeed, the word ‘cooperation’ does not appropriately describe the situation here. I agree with the circuit court that the probation officer “changed hats” and was serving a law enforcement rather than probationary function. The probation officer allowed law enforcement to dictate his operations. The probation officer agreed to allow law enforcement officers to interfere with ordinary probationary supervision and to delay a probationary search for more than three weeks. Law enforcement officers were not able to obtain a search warrant because their information was not good enough and then the probation officer worked with these same officers on a ‘probation’ search looking for the same evidence as the aborted search warrant would have sought.
So just when, in the majority’s view, would a probation search become a police search? The dissent says never:
¶67 Guidance? I think not. Puzzlement? I think so. The question the readers should ask, after reading the majority opinion, is whether they can hypothesize any realistic fact situation in which a probation officer who performs a search under the protection of the very law enforcement officers with whom they have been ‘cooperating’ would be transformed into a stalking horse. I fear that no such situation exists.
UPDATE: The dissent’s concern turns out to be prescient – not long after this case was decided, the Supreme Court decided U.S. v. Knights, 534 U.S. 112 (2001) (Knights’ consent to probationary condition authorizing searches of his property by probation and police officers allowed warrantless search on reasonable suspicion). That holding has been construed as “confirm(ing) that the Fourth Amendment does not require a stalking horse inquiry…. In short, when a probationary condition authorizes searches by probation officers, the Fourth Amendment does not require probation officers to choose between endangering themselves by searching alone and foregoing the search because they lacked the resources and expertise necessary to search alone safely.” U.S. v. Brown, 8th Cir. #03-1578, 10/10/03, and cases cited. See also U.S. v. Newton, 2nd Cir. No. 02-1310, 5/26/04, rejecting stalking horse “challenges to coordinated efforts between probation/parole officers and other law enforcement officials” in virtually all instances; State v. Kottman, 2005 SD 116 (same, noting “that after Knights … most … appellate courts rejected the previously accepted stalking horse doctrine”).