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Administrative Searches – Probation/Parole: Presence of Police not Determinative

State v. Jacob B. Jones, 2008 WI App 154, PFR filed 10/24/08
For Jones: David R. Karpe

Issue/Holding:  Warrantless search of bedroom upheld as probation/parole search under “special needs” doctrine, notwithstanding presence of police who were conducting a concurrent investigation:

¶15      We conclude, based on the court’s factual findings, that the search of Jones’s room was a probationary search and not a police search. Cooperation between a probation officer and law enforcement does not transform a probation search into a police search. See Hajicek, 240 Wis.  2d 349, ¶32. Indeed, cooperation with law enforcement for the purpose of preventing crime is a specific goal of probation supervision. Id., ¶33. A probation search is also not transformed into a police search because the information leading to the search was provided by law enforcement. Griffin, 131 Wis. 2d at 57. Nor is a probationary search transformed into a police search due to the existence of a concurrent investigation. See Hajicek, 240 Wis.  2d 349, ¶¶5, 32. Similarly, the transfer of the items seized to law enforcement following the search does not change the nature of the search itself. The circuit court’s findings of historical fact clearly indicate that Trimble was present at Jones’s residence in furtherance of her responsibilities as his agent. Trimble, not the police, initiated the search, and Trimble, not the police, conducted the search.

¶16      In addition, the facts demonstrate that the officers were present at Jones’s residence for protective purposes. This is a recognized example of cooperation between law enforcement and probation agents, and does not render the search a police search.See Griffin131 Wis. 2d 41, 63Hajicek, 240 Wis.  2d 349, ¶34; State v. Wheat,2002 WI App 153, ¶22-23, 256 Wis.  2d 270, 647 N.W.2d 441. Jones contends that, unlike these cases, police participation in the present case “went far beyond staying in their protective role,” apparently because an officer initially attempted to open Jones’s door after the door closed behind Jones, and then suggested the use of and paid for the locksmith. We disagree. The officers’ actions were in furtherance of their professional responsibility to gain access to Jones’s room for the purpose of their protective sweep, followed by Trimble’s probationary search. Based on the circuit court’s findings, we conclude that the search of Jones’s room was a probation search, not a police search.

“Protective sweep”? That doctrine generally applies incident to arrestState v. Dwight M. Sanders, 2008 WI 85 (“Once inside an area a law enforcement officer may perform a warrantless ‘protective sweep,’ that is, ‘a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others.’”). Was Jones under arrest? The court doesn’t really say, though it does say that the p.o. “wanted officers to handcuff Jones because she had concerns about her safety.” Perhaps we can assume that they indeed carried out the intended task; and perhaps we can further assume that Jones therefore was … what? Handcuffing isn’t generally thought to establish the existence of an arrest. Can the protective sweep doctrine, then, apply to a warrantless, non-arrest situation? Some courts premise protective sweep on the existence of an arrest warrant although, to be sure, most don’t; see generally, United States v. Gandia, 424 F.3d 255, 262 (2d Cir. N.Y. 2005). Wisconsin indeed seems to allow protective sweeps in warrantless, non-arrest situations— State v. Walter Horngren, 2000 WI App 177, ¶20 (permitting sweep in warrantless, non-arrest community caretaker entry). Maybe this is picky, but it seems that something more than laconic mention of “protective sweep” was, well, warranted before its apparent extension to yet another context.

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