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Extended Supervision Conditions – Suspicionless Searches; Battery to Law Officer, § 940.20(2) – Elements: Acting in Official Capacity

Wisconsin State v. Tally Ann Rowan, 2012 WI 60, on certification review ; case activity

Extended Supervision Conditions – Suspicionless Searches 

A condition of extended supervision “that allows any law enforcement officer to search [Tally]’s person, vehicle, or residence for firearms, at any time and without probable cause or reasonable suspicion,” was tailored to the particular facts and thus neither overbroad nor unrelated to Tally’s rehabilitative needs.

¶4   We hold that while the condition that the circuit court imposed on Rowan’s extended supervision “may impinge on constitutional rights,”[2] it does not violate them. The supervision condition imposed in this case does not violate Rowan’s constitutional rights because the circuit court made an individualized determination, pursuant to the circuit court’s authority under Wis. Stat. § 973.01(5), that the condition was necessary based on the facts in this case——involving violence, threats, and a firearm.  It conforms with the applicable two-part test——that it is “not overly broad” and that it is “reasonably related” to Rowan’s rehabilitation.[3]  It is instructive that the United States Supreme Court determined in Samson v. California[4] that a suspicionless search of a prisoner who has been released but remains under supervision by corrections officials, which includes a person released under community supervision, was reasonable under the Fourth Amendment.  It based that conclusion on such persons’ severely diminished privacy expectations and the State’s great interest in preventing such persons from reoffending.[5]  The State relies on Samson in arguing that the condition here does not violate Rowan’s constitutional rights.  Rowan counters that Samson‘s holding is distinguishable because it relied heavily on California’s statute authorizing suspicionless searches, while the condition imposed here was made solely on a sentencing court’s authority.  We hold that under the facts of this case, the condition imposed satisfies both parts of the applicable test and therefore does not violate Rowan’s rights under the Fourth Amendment to the United States Constitution or Wisconsin Constitution Article I, Section 11.

As suggested, the court stresses that “we analyze the constitutionality of an individualized supervision condition that applies only to Rowan and was imposed by a circuit court pursuant to its authority under Wis. Stat.§ 973.01(5)[9] after the circuit court made an individualized determination that the condition was necessary based on the facts in this case——involving violence, threats, and a firearm,” ¶9. It’s a two-part test: ” “[C]onditions of probation may impinge upon constitutional rights as long as they [1.] are not overly broad and [2.] are reasonably related to the person’s rehabilitation.”[10]  A condition is reasonably related to the person’s rehabilitation “if it assists the convicted individual in conforming his or her conduct to the law,” ¶10, citing Edwards v. State, 74 Wis. 2d 79, 83, 246 N.W.2d 109 (1976); Krebs v. Schwarz, 212 Wis. 2d 127, 132, 568 N.W.2d 26 (Ct. App. 1997); and State v. Oakley, 2001 WI 103, ¶19, 245 Wis. 2d 447, 629 N.W.2d 200. This test is applicable to the different forms of supervision (probation, parole, extended), id.

Battery to Law Officer, § 940.20(2) – Elements: Acting in Official Capacity 

Tally was convicted by battery to an officer, because she attacked him as he tried to restrain her during a blood draw at a hospital. She argues that the officer wasn’t then acting in an official capacity, therefore the evidence was insufficient to establish that element. The court rejects the argument:

¶21  We agree with Rowan that the fact that an officer “is acting in an official capacity” is an element of the offense that the State must prove beyond a reasonable doubt.  The applicable jury instruction (Wis JI-Criminal 915) provides that officers are acting “in an official capacity when they perform duties that they are employed to perform.”  Rowan argues that police officers “are not employed to assist hospital personnel in providing medical treatment” (App. Br. at 12). She reasons that because the officer here restrained Rowan at the request of the nurse, who was attempting to do a medical procedure related to a blood draw, there is insufficient evidence to support the conviction because the officer was not acting in an official capacity.  We consider the evidence that the trier of fact had before it in determining whether Officer Jennifer Knutson was acting in an official capacity when she was injured.  The jury heard that Knutson had been dispatched to the hospital by her employer, the River Falls Police Department, at the request of another officer who had witnessed the erratic driving, had seen the crash, and had assisted at the scene.  Knutson went to the hospital as requested.  The jury heard testimony from the emergency room doctor that when Rowan arrived by ambulance, she was “combative . . . fighting . . . spitting at me, threatening my life and my family’s life as well as the life of others in the emergency room.”  The jury heard testimony that Rowan was put under arrest for operating a vehicle while intoxicated.  The jury heard testimony that while in the emergency room, Rowan received treatment for her injuries and was subjected to a blood draw to which she did not consent.  That procedure was supervised by the law enforcement officers present.  The jury heard testimony from another officer present that Knutson “assisted and [was] standing by with Ms. Rowan.”  Given that Knutson was dispatched to the hospital by her employer and actively “assisted” other officers in restraining a combative suspect who was under arrest and under investigation for operating while intoxicated, we are satisfied that the evidence, “viewed most favorably to the state and the conviction,” is not “so lacking in probative value and force that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt.”[26]  We are satisfied that there was evidence that supported the jury verdict that included the finding that Officer Knutson was acting in an official capacity at the time of the battery by Rowan.

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