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Probation Search: PBT Administered by Police Officer

State v. Marilee F. Devries, 2012 WI App 119 (recommended for publication); case activity

Devries’ probation agent, after detecting alcohol on her breath during a visit at the probation office, had a law enforcement officer administer a preliminary breath test. One thing led to another and she was convicted of OWI. She challenges the PBT as a police, rather than probation, search because the probation officer wasn’t involved in the test, on top of which Admin. Code § DOC 328.21(4)(a) authorizes DOC personnel but not police officers to subject probationers to PBTs. The court rejects the argument, ¶5 (“not only did Devries’s agent initiate the search, but, as the State points out, there is no evidence the officer had any purpose for his initial involvement other than to assist the agent in conducting the probation investigation”). State v. Hajicek, 2001 WI 3, 240 Wis. 2d 349, 620 N.W.2d 781 and similar cases, discussed and applied:

¶7         While Devries is correct that these cases conclude that the challenged searches were probation searches in large part because the primary role of the police in each case was to ensure safety during the search, the cases do not suggest that a search which is done at the request and on behalf of a probation agent, but is physically performed by a police officer, is per se a police search.  None of the cited cases involved a law enforcement officer executing a search at the request and on behalf of a probation agent, which are the facts we address here.  Here, the PBT was administered for no independent police purpose, but was instead a limited search executed at the request and on behalf of the probation agent, during a probation meeting in the probation office, and for probation purposes.

¶8        Person’s undisputed testimony supports the circuit court’s conclusion at the evidentiary hearing that Person was at the probation office to conduct the PBT “because the probation agent called for him to be of assistance, not because this was a police stop, not because this was a police investigation.”  Considering the totality of the circumstances, as Hajicek instructs us to do, it is evident that at the time he administered the PBT to Devries, Person was merely assisting Devries’s agent with a probation search and was not independently conducting a police investigation or search.

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