ARGUMENT: September 4, 2019
Circuit Court Racine County (L.C. No. 2015CF1281). Michael J.
OF DECISION OF THE COURT OF APPEALS
the defendant-appellant-petitioner, there were briefs filed
by Jay R. Pucek, assistant state public defender. There was
an oral argument by Jay R. Pucek
the plaintiff-respondent, there was a brief filed by Sarah L.
Burgundy, assistant attorney general; with whom on the brief
was Joshua L. Kaul, attorney general. There was an oral
argument by Sarah L. Burgundy.
WALSH BRADLEY, J.
The petitioner, Roy S. Anderson ("Anderson"), seeks
review of an unpublished, per curiam decision of the court of
appeals affirming both his judgment of conviction and the
denial of his motion to suppress evidence. He asserts that
the court of appeals erred in determining that law
enforcement's search of his person pursuant to 2013
Wisconsin Act 79 ("Act 79") was valid.
Act 79 allows law enforcement to search a person on a
specified probation, parole, or extended supervision
statuswithout consent or a warrant if the officer
reasonably suspects that the person is committing, is about
to commit, or has committed a crime. Generally, a full search
cannot be accomplished absent probable cause. However, if a
person is subject to Act 79, a full search may be conducted
on the lesser showing of reasonable suspicion.
Anderson specifically contends that the arresting officer who
searched him did not know that he was on supervision. Absent
such knowledge, the officer could not have appreciated that
Anderson was subject to search based on Act 79's reduced
protections before conducting a warrantless
He argues next that even if the officer had knowledge of his
supervision status, the search was still illegal. Anderson
contends that under the totality of the circumstances, the
arresting officer lacked reasonable suspicion that Anderson
was committing, was about to commit, or had committed a
crime. As part of this argument, he asserts that tips
received from an unnamed informant lacked any indicia of
reliability and should be discarded completely from our
analysis of the totality of the circumstances.
We conclude that the circuit court's finding of fact that
the officer in this case had knowledge of Anderson's
supervision status prior to conducting the warrantless search
at issue is not clearly erroneous. Next, we determine that
the corroborated tips of the unnamed informant in this case
may be considered in our analysis of the totality of the
circumstances, giving them such weight as they are due.
Finally, we conclude that under the totality of the
circumstances, the officer in this case had reasonable
suspicion that Anderson was committing, was about to commit,
or had committed a crime.
Accordingly, we affirm the decision of the court of appeals.
On August 25, 2015, Officer Michael Seeger of the Racine
police department was driving an unmarked police car in the
City of Racine. He testified that within the
two-and-a-half-week period prior, he had received "two
separate tips from a reliable and credible informant about
Mr. Anderson selling illegal narcotics" in an alley
behind a particular address where Anderson was purported to
have been living. No additional information regarding this
unnamed informant is provided in the record.
Officer Seeger observed Anderson riding a bicycle on a
sidewalk in violation of a city ordinance. After seeing
Anderson, Officer Seeger performed a U-turn and sought to
make contact with him. Officer Seeger testified that
"[u]pon Anderson seeing us, he immediately looked over
his left shoulder and identified us. He also knows me from
prior police contacts." After seeing and identifying
Officer Seeger, Anderson made a right turn down a nearby
alley, looked over his shoulder several times, and removed
one of his hands from the bicycle's handlebars and placed
it into his pocket, leading Officer Seeger to believe that
"he was concealing an item within his pocket."
Anderson's movements concerned Officer Seeger. The
officer testified that "[b]ased on my training and
experience . . . people involved in criminal activity will
attempt to hide or destroy or conceal illegal narcotics when
they have police interaction or being approached by
police." He also observed that Anderson was located in a
"high drug trafficking area within the City of
Officer Seeger pursued Anderson and ordered him to stop, and
Anderson complied. Anderson subsequently stepped off of his
bicycle and Officer Seeger performed a search of
Anderson's person. In his testimony before the circuit
court, Officer Seeger indicated that he performed this search
pursuant to his authority under Act 79.
The search of Anderson turned up two individual bags of crack
cocaine, over $200 in cash, and two cell phones. No drug
paraphernalia was located on Anderson, indicating to Officer
Seeger that Anderson was engaged in selling the crack
This contact on August 25, 2015, was not Officer Seeger's
first experience with Anderson. Specifically, the officer was
familiar with Anderson because he had previously arrested
Anderson for possession with intent to deliver cocaine in
2012. Officer Seeger further testified that even prior to
that, Anderson's name had come to his attention
"through other cooperative citizens in 2012."
Additionally, Officer Seeger testified that he knew Anderson
had been released on "probation" on March 17,
2015.His testimony further indicated that
"[o]nce [Anderson] was released on probation, I ran him
out. I did a record check of him and knew that he felony
under Act 79 [sic] ." However, Officer Seeger did not
know how long Anderson's "probation" period
As a result of Officer Seeger's search of Anderson, the
State charged Anderson with possession of cocaine with intent
to deliver as a second and subsequent offense. Anderson moved to
suppress the evidence obtained through the search, arguing
that Officer Seeger lacked reasonable suspicion that he was
committing, was about to commit, or had committed a crime.
Accordingly, in Anderson's view, Officer Seeger lacked a
legal basis to search him pursuant to Act 79.
The circuit court denied Anderson's motion to suppress.
Initially, it found as a fact that Officer Seeger knew that
Anderson was on supervision from the previous time he
arrested Anderson for possession with intent to deliver.
Further, it concluded that Officer Seeger had the requisite
reasonable suspicion to justify the search. It reached this
determination based on its findings of the "properly
proven facts" that Anderson rode his bicycle away from
police, looked back at Officer Seeger, and placed his hand in
his pocket. The circuit court also observed that
"it's a high drug area in terms of drug sales and
purchases" and that Officer Seeger "had prior
information that the defendant was still involved in
Anderson appealed and the court of appeals affirmed. The
court of appeals concluded that "Seeger had sufficient
basis to believe that Anderson was subject to Act 79."
State v. Anderson, No. 2017AP1104-CR, unpublished
slip op., ¶9 (Wis. Ct. App. Sept. 12, 2018) (per
curiam). As support for this conclusion, the court of appeals
observed facts indicating that "Seeger was familiar with
Anderson, having arrested him before for possession of
cocaine." Id. Further, Officer Seeger
"knew that Anderson had been convicted of a felony and
released on community supervision on March 17, 2015. Although
Seeger did not know the length of Anderson's supervision,
it was reasonable to presume that it lasted for a period
beyond the date of the search . . . ." Id.
The court of appeals also determined that "Seeger had
the requisite reasonable suspicion to trigger a lawful Act 79
search." Id., ¶10. In reaching this
conclusion the court of appeals pointed to the following
facts: (1) the tips Officer Seeger received from a
confidential informant advising that Anderson was selling
drugs; (2) Anderson's history of possessing drugs; (3)
Anderson's presence in a high drug trafficking area; and
(4) Anderson's behavior, "which included turning
down a nearby alley, repeatedly glancing backwards, and
taking his left hand off the bicycle's handlebars and
placing it into his front jacket pocket, as though he was
attempting to conceal something." Id.
This case requires us to review the court of appeals'
determination that the circuit court correctly denied
Anderson's motion to suppress. In reviewing a ruling on a
motion to suppress, this court applies a two step standard of
review. State v. Eason, 2001 WI 98, ¶9, 245
Wis.2d 206, 629 N.W.2d 625.
First, we will uphold the circuit court's findings of
fact unless they are clearly erroneous. Id. A
finding of fact is clearly erroneous if it is against the
great weight and clear preponderance of the evidence.
Metro. Assocs. v. City of Milwaukee, 2018 WI 4,
¶62, 379 Wis.2d 141, 905 N.W.2d 784. Second, we review
the application of constitutional principles to those facts
independently of the decisions rendered by the circuit court
and court of appeals. Eason, 245 Wis.2d 206,
We begin by addressing the threshold inquiry of whether
Officer Seeger had knowledge of Anderson's supervision
status so as to justify an Act 79 search. Subsequently we
address whether under the totality of the circumstances
Officer Seeger had reasonable suspicion that Anderson was
committing, was about to commit, or had committed a crime. In
our review of this second issue, we consider the extent to
which the unnamed informant's tips factor into our
Act 79 created several statutes authorizing law enforcement
officers to search individuals on certain community
supervision statuses, including those on probation and
parole, as well as those recently released from prison on
extended supervision. As relevant here, Act 79 provides that
a person released on extended supervision for a felony
offense is subject to search under the following conditions:
A person released under this section, his or her residence,
and any property under his or her control may be searched by
a law enforcement officer at any time during his or her
period of supervision if the officer reasonably suspects that
the person is committing, is about to commit, or has
committed a crime or a violation of a condition of release to
extended supervision. Any search conducted pursuant to this
subsection shall be conducted in a reasonable manner and may
not be arbitrary, capricious, or harassing. A law enforcement
officer who conducts a search pursuant to this subsection
shall, as soon as practicable after the search, notify the
Wis. Stat. § 302.113(7r).
In essence, this statute lowers the legal standard required
for a law enforcement officer to perform a search of a
suspect if that suspect is on one of Act 79's specified
supervision statuses. Generally, a full search cannot be
accomplished without a determination of probable cause.
State v. Marquardt, 2005 WI 157, ¶37, 286
Wis.2d 204, 705 N.W.2d 878');">705 N.W.2d 878.
On the other hand, an investigatory or Terry stop,
which typically involves only temporary
questioning and a limited search and constitutes but a minor
infringement on personal liberty, can be utilized if law
enforcement has reasonable suspicion that a crime has been
committed, is being committed, or is about to be committed.
State v. Young, 2006 WI 98, ¶20, 294 Wis.2d 1,
717 N.W.2d 729. Thus, Act 79 allows for a full search of
those subject to its provisions where ...