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In case of first impression, SCOW upholds search pursuant to Act 79

State v. Roy S. Anderson, 2019 WI 97, affirming a per curiam court of appeals decision, 11/15/19; case activity (including briefs)

Act 79 permits law enforcement to search a person on probation, parole or extended supervision based on reasonable suspicion (not probable cause) that the person, is is about to, or has committed a violation of a condition of his release. In its first decision on this law, SCOW holds 7-0 that the officer here had (a) knowledge of Anderson’s supervision status before conducting the search at issue, and (b) the reasonable suspicion needed to conduct the search.

The interesting issue in this case concerned whether the officer even knew that Anderson was on extended supervision and thus subject to Act 79 when he conducted the search. If law enforcement can just assume that everyone is on community supervision, then Act 79 throws the 4th Amendment’s probable cause requirement out the window. So what threshold of knowledge of the suspect supervision status must the officer have?

While we thought that SCOW took this case to answer that question, click here, it didn’t really. Instead it held that in this particular case the circuit court’s finding was not clearly erroneous because the officer: (1) knew that Anderson was placed on probation on August 25, 2015 (though he did not know the length of that probation); (2) did a record check of the Anderson’s supervision status; (3) knew that Anderson had been arrested for a felony in 2012 bolstering the thought that he was convicted of felony and thus subject to Act 79. Opinion, ¶¶26-30.

SCOW also held that the officer had reasonable suspicion that Anderson had, was, or was about to commit a crime:

¶49 Again, the totality of the circumstances here consists of (1) the informant’s tips that Anderson was selling drugs in the alleyway behind a particular address at which Anderson was purported to be living; (2) Officer Seeger’s past arrest of Anderson; (3) Anderson’s presence in the alleyway behind the address given by the informant, which was in a high drug trafficking area; and (4) Anderson’s behavior, consisting of riding down an alley away from Officer Seeger, looking back at the officer several times, and placing his hand in his pocket. Although under the particular facts of this case none of these factors standing alone would support reasonable suspicion, when viewed in combination, Officer Seeger’s suspicion that Anderson had committed, was committing, or was about to commit a crime was reasonable.
¶50 When combined with the information known to Officer Seeger about Anderson’s history, Anderson’s behavior creates reasonable suspicion that criminal activity was afoot. Anderson’s movements after he noticed Officer Seeger give rise to a reasonable inference that Anderson was trying to conceal something from the officer.

Justice Hagedorn filed a concurring opinion joined by Justice Ziegler. He backed the majority opinion “in full,” but argued:

¶70 Because the text of Act 79 does not contain a threshold officer-knowledge requirement, any judicial imposition of that precondition must stem from the Fourth Amendment, and consequently, should be rooted in proper Fourth Amendment doctrine rather than analogies to general principles.

¶71 In short, Act 79 embraces a new policy that raises new questions——among them, whether and when the Fourth Amendment might demand more from law enforcement than Act 79 already requires. While today’s decision leaves these issues for another day, such questions should be analyzed by close reference to the text of Act 79 itself and faithful application of Fourth Amendment principles to those with an Act 79 status.

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