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State v. Anderson

Supreme Court of Wisconsin

November 15, 2019

State of Wisconsin, Plaintiff-Respondent,
v.
Roy S. Anderson, Defendant-Appellant-Petitioner.

          ORAL ARGUMENT: September 4, 2019

          Circuit Court Racine County (L.C. No. 2015CF1281). Michael J. Piontek Judge.

         REVIEW OF DECISION OF THE COURT OF APPEALS

          For 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

          For 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.

          ANN WALSH BRADLEY, J.

         ¶1 The petitioner, Roy S. Anderson ("Anderson"), seeks review of an unpublished, per curiam decision of the court of appeals affirming both his judgment of conviction and the denial of his motion to suppress evidence.[1] He asserts that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.

         ¶2 Act 79 allows law enforcement to search a person on a specified probation, parole, or extended supervision status[2]without 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.[3] However, if a person is subject to Act 79, a full search may be conducted on the lesser showing of reasonable suspicion.

         ¶3 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 search.[4]

         ¶4 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.

         ¶5 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.

         ¶6 Accordingly, we affirm the decision of the court of appeals.

         I

         ¶7 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.

         ¶8 Officer Seeger observed Anderson riding a bicycle on a sidewalk in violation of a city ordinance.[5] 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."

         ¶9 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 Racine."

         ¶10 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.

         ¶11 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 cocaine.

         ¶12 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."

         ¶13 Additionally, Officer Seeger testified that he knew Anderson had been released on "probation" on March 17, 2015.[6]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 extended.

         ¶14 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.[7] 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.

         ¶15 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.

         ¶16 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 sales."

         ¶17 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.

         ¶18 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.

         II

         ¶19 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.

         ¶20 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, ¶9.

         III

         ¶21 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 analysis.

         ¶22 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 department.

Wis. Stat. § 302.113(7r).

         ¶23 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.

         ¶24 On the other hand, an investigatory or Terry stop, [8]which typically involves only temporary questioning and a limited search[9] 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 ...


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