State v. West

SHIRLEY S. ABRAHAMSON, J.

(dissenting). The United States Supreme Court decision, Griffin v. Wisconsin, 483 U.S. 868 (1987),1 authorizing the warrantless searches of parolees and probationers residences in the absence of exigent circumstances, has been the target of significant criticism.2 It is therefore unwise to extend the Griffin analysis further, as the majority opinion does, to a person living with a parolee or probationer.

The majority opinion insists that defendant West had a reasonable expectation of privacy in the apartment even though she shared it with a parolee. Majority opinion at 90-91. Having conferred an expec*100tation of privacy on her, the majority in the next breath takes it away, arguing that her parolee roommate had "consented" to warrantless searches by the authorities. Majority opinion at 94. According to the majority opinion, West's loss of her privacy rests on "consent" three times removed. The majority takes the fact that a parolee's non-consent to a home search under DOC 328.04(3)(k) (which is not involved in this case) would result in a parole violation and transforms it into the parolee's consent to this warrantless search.3 Then the majority transforms "the parolee's consent" into defendant West's "consent," noting that because she shared the apartment, a warrantless search on less than probable cause was justified.

I agree with the dissent filed by Judge Dykman in the court of appeals. State v. West, 179 Wis. 2d 182, 197, 507 N.W.2d 343 (1993). As Judge Dykman explained, the majority opinion sets up a straw man and then tears it down. I quote salient parts of Judge Dykman's dissent and adopt the dissent as my own.

"[W]e can simultaneously follow Griffin, deny probationers and parolees full fourth amendment protection and yet grant that protection to other citizens....
".... A search of a parolee's residence pursuant to Department of Corrections rules is valid, *101whether the parolee lives alone or with someone.... A parolee cannot avoid warrantless searches by living with a nonparolee. The fears of the majority... are groundless.
"The search of the apartment did not produce evidence which incriminated [the parolee]. This case is not a review of... parole revocation, nor is it a review of the charges brought against [the parolee]....
".... The proper analysis is not difficult. Three police officers and a probation and parole agent searched West's residence without a warrant, without exigent circumstances and without West's permission. This is exactly the type of search prohibited by the fourth amendment. The result is that the evidence seized in the search must be suppressed insofar as the state seeks to use it against West.
". . .. The majority has concluded that the parents, grandparents, siblings, roommates and spouses of persons convicted of any of these crimes [including fish and game law violations, drinking intoxicants while on a common carrier possession of marijuana] have forfeited their fourth amendment rights if they continue living with their children, grandchildren, siblings, roommates or spouses....
"If the police have probable cause to believe that a person has contraband or stolen items in his or her home, there is no reason why the police cannot obtain a warrant to search that person's home. That the occupant lives with a probationer or parolee is no reason to invent an exception to the fourth amendment...."

For the reasons set forth, I dissent.

The Court upheld the Department of Corrections' rules permitting a search of a probationer's residence on reasonable suspicion without a warrant or probable cause. Griffin, 483 U.S. at 872-873.

See, e.g., 4 W. LaFave, Search and Seizure sec. 10.10, at 24 (2d ed. 1993 Supp.) (finds unconvincing the Griffin majority's reasoning that "the special needs of Wisconsin's probation system make the warrant requirement impracticable"); Sunny A.M. Koshy, The Right of [Ml] People to be Secure: Extending Fundamental Fourth Amendment Rights to Probationers and Parolees, 39 Hastings L.J. 449, 481 (1988); Howard P. Schneid-erman, Conflicting Perspectives from the Bench and the Field on Probationer Home Searches — Griffin v. Wisconsin Reconsidered, 1989 Wis. L. Rev. 607, 664 (". . . a warrant requirement imposed for non-emergency searches would not unduly burden Wisconsin probation departments because agents reported that they need to utilize their search powers rather infrequently").

A search under DOC 328.04(3)(k), majority opinion at 94, is not involved in this case. The search in this case was under DOC 328.21(3). See majority opinion at 76.

Despite the majority's citation of Griffin for this "consent" proposition, Griffin says nothing about "consent" to the search involved in this case. The Griffin opinion focuses on DOC 328.21 (3) and upholds the rule, concluding that it meets the "special needs" of the probation officers and comports with the principles of reasonableness underlying the Fourth Amendment.