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Probation Search

State v. Seneca Joseph Boykin, 2009AP2499-CR, District 2, 9/22/10

court of appeals decision (3-judge, not recommended for publication); for Boykin: Mark A. Schoenfeldt; BiC; Resp.

A probation agent may not evade the warrant requirement by acting as a “stalking horse” for the police in conducting a warrantless search of a probationer’s residence, ¶10. In this instance, probation officer Navis, acting on reliable information that Boykin was using and selling cocaine, went to Boykin’s home at the suggestion of and accompanied by police officer Spaulding, to conduct a home visit. Once there, Spaulding opened Boykin’s bedroom door “for protective purposes” … and you can guess what happened next, on this suppression appeal of a drug conviction.

¶12      Relying on the trial court’s findings of historical fact, we review de novo its determination that the search was a probation search, not a police search. First, the trial court’s findings indicate that it was Navis who instigated the search based on the information provided to her by Stulo and Spaulding. The fact that the police provide the information that leads to a probation search does not make the probation search unlawful, nor does an agent’s cooperation with law enforcement change the nature of the search.  Hajicek, 240 Wis. 2d 349, ¶33 (citing State v. Griffin, 131 Wis. 2d at 57, and State v. Flakes, 140 Wis. 2d 411, 427, 410 N.W.2d 614 (Ct. App. 1987)). Second, the trial court found that Spaulding took the lead in pushing open the door for protective purposes. When a probation officer conducts a search while police are present only for protective purposes, the police presence does not change the nature of the search. Hajicek, 240 Wis. 2d 349, ¶30 (citing State v. Griffin, 131 Wis. 2d at 62-63).

¶13      Finally, we acknowledge, as the trial court did, that the interaction of Spaulding and Navis preceding the search requires close attention. However, the cooperation of law enforcement and probation supervisors for the purpose of preventing crime is a specific goal of probation supervision. Hajicek, 240 Wis. 2d 349, ¶33 (citing WIS. ADMIN. CODE § DOC 328.01(5) (June 1999)). Here, we conclude that the search of Boykin’s bedroom was a probation search conducted by and under the direction of Boykin’s probation agent. “[A] probation officer cannot be a ‘stalking horse’ of law enforcement if the probation officer instigated the search.” Wheat, 256 Wis. 2d 270, ¶21. We therefore uphold the trial court’s denial of Boykin’s motion to suppress evidence.

Probation-search standard of review spelled out, ¶9; standard stuff.

Sentencing Discretion

¶15      Sentencing is well within the discretion of the trial court, State v. Larsen, 141 Wis. 2d 412, 426, 415 N.W.2d 535 (Ct. App. 1987), and the trial court has great latitude in determining a sentence, State v. J.E.B., 161 Wis. 2d 655, 662, 469 N.W.2d 192 (Ct. App. 1991). On appeal, our review is limited to determining whether there was an erroneous exercise of discretion. Larsen, 141 Wis. 2d at 426. “[S]entencing decisions of the [trial] court are generally afforded a strong presumption of reasonability because the [trial] court is best suited to consider the relevant factors and demeanor of the convicted defendant.” State v. Gallion, 2004 WI 42, ¶18, 270 Wis. 2d 535, 678 N.W.2d 197 (citation omitted).

¶17      Here, the sentencing transcript reflects that the court identified the factors it considered and its objectives and fashioned a sentence well within the permissible range. The court noted that at the time of the current offense, Boykin was on probation for a charge of possession of THC as a repeat drug offender. The court observed that Boykin was putting himself at great risk, as well as his grandparents, by possessing THC again. The court also noted that during a previous period of probation, Boykin had been the subject of two violation investigation reports, had not completed an intervention program, and had two positive drug tests. The court determined, “Clearly confinement is necessary here. The problem that I see is that on probation in the past, they’ve tried to give you some counseling, tried to put you on the right path, Mr. Boykin, but that has not been … fruitful.” While Boykin is correct that the court did not specifically address the length of confinement, it is readily discernable from its observations that the length of confinement is tied to Boykin’s need for rehabilitation and the court’s need to impress upon Boykin the seriousness of his conduct.

Separately: a sentence “well within the maximum sentence limit … cannot be considered excessive,” ¶18.

Sentence – Oral Pronouncement

Discrepancy between oral pronouncement and judgment of conviction (in that latter reflects ES term 2 years’ longer than former) results in “remand to the trial court for a determination of whether the written judgment of conviction is inaccurate and requires correction,” ¶¶1, 19.

The court appears to have caught the discrepancy on its own — if so, kudos to the court. The controlling principle was stated relatively recently, in State v. Carla L. Oglesby, 2006 WI App 95:

¶15      … [T]he trial court’s oral pronouncement imposed a two-year term of probation in 2004CM401. Despite this clear and unequivocal statement, the judgment of conviction recited a probation term of six years.

¶16      When an unambiguous oral pronouncement at sentencing conflicts with an equally unambiguous pronouncement in the judgment of conviction, the oral pronouncement controls. State v. Lipke, 186 Wis.  2d 358, 364, 521 N.W.2d 444 (Ct. App. 1994). Thus, Oglesby’s appeal, and the State’s concession of error on this issue, are well taken. The trial court should have granted Oglesby’s motion to amend the judgment to recite a probation term of two years. We therefore reverse the sentencing portion of the judgment of conviction in 2004CM401 and remand with instructions that the trial court enter an amended judgment reciting the maximum two-year term of probation. …

You’d think, then, there won’t be much to do on remand except correct a plain clerical error.

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