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COURT OF APPEALS DECISION DATED AND RELEASED FEBRUARY 4, 1997 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-1542-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
APRIL DAKINS,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Marathon County:
RAYMOND F. THUMS, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
CANE, P.J. April Dakins appeals a judgment entered
upon her no contest plea convicting her of possession of marijuana with the
intent to deliver. Dakins contends that
the trial court erroneously denied her suppression motion. She raises the following issues: (1) Was the "so-called 'probation
search'" in fact a prohibited warrantless search; (2) was the
"so-called 'probation search'" in fact a warrantless investigative
search with the probation officers acting as surrogate investigative agents of
the sheriff's department; (3) is the probation department supervisor a neutral
and detached magistrate; (4) should all the evidence obtained through the
"so-called 'probation search'" be suppressed because it was a
warrantless investigative search; (5) under the circumstances, was Dakins in
constructive custody within the meaning of Miranda; (6) should
she have been given Miranda warnings; and (7) should Dakins' incriminating statements made
without Miranda warnings be suppressed.[1]
Because the trial court
correctly concluded that the search was a probation search, that the
probationer had common authority over the premises that he shared with Dakins,
and Dakins was not placed under arrest, under suspicion, or in constructive
custody at the time she made her statements, we affirm the judgment.[2]
Dakins shared a
two-bedroom apartment with Curt Scheidemann, who was on probation for drug
offenses. Sergeant Thomas Kujawa
received information from a reliable informant that Scheidemann was dealing
drugs from his residence and that two juveniles were going there to purchase
marijuana later in the day. Kujawa
relayed this information to Scheidemann's probation officer, Craig Jascor.
Jascor's supervisor
authorized a probation search of Scheidemann's apartment. Jascor and another probation officer
conducted the search, accompanied by Kujawa and a second police officer to
provide security. Both Dakins and
Scheidemann signed the lease. Dakins
testified that she told the officers that Scheidemann had separate living
quarters in the apartment and shut the door to her bedroom. Nonetheless, she testified that
Scheidemann's thirteen-year-old daughter occupied the only other bedroom and
that Curt did not share the bedroom with his thirteen-year-old daughter. She conceded that she was engaged to
Scheidemann and approximately seven months' pregnant with Scheidemann's child
at the time of the search. The officers
observed men's and women's clothing in both bedrooms. Dakins testified she was wearing some of Scheidemann's clothing
at the time of the search.
The probation officer
testified Scheidemann was the target of the search and that there was nothing
about the physical layout of the apartment to indicate Scheidemann's living
quarters were separate. After calling
his supervisor and explaining the living arrangements of Scheidemann's
apartment, he received his supervisor's instruction to search the apartment. He testified that he searched the bedroom
that Scheidemann advised was his. The
other probation officer searched the bedroom Dakins claimed was hers. In Dakins' bedroom, they found a Lane chest,
which one of the officers opened. A
quantity of marijuana was in four separate baggies in the chest.
The officers also found
a locked safe. They advised that they
would remove the safe from the apartment if Dakins refused consent to search
it. Dakins called her attorney, who
advised her to cooperate and "open the safe for them." The probation officers discovered a
"purple colored bong with suspect marijuana."
Scheidemann was taken
into custody by the officers. He was
initially handcuffed to a kitchen chair and later taken from the
apartment. Kujawa remained at the
apartment with two probation officers.
Kujawa testified that Scheidemann was the target of the investigation
and he questioned Dakins to obtain information against Scheidemann. He stated he did not provide Miranda
warnings because she was not in custody and he had no intention of taking her
into custody at that time. Dakins was
not handcuffed, placed under arrest, or in any way physically restrained.
When Kujawa asked Dakins
if the drugs were Scheidemann's, she responded that they were hers. Kujawa testified that he believed she was
covering up for Scheidemann and he continued to question her to permit her to
"either verify or more to disclaim her story. It wasn't making any sense to me." Dakins testified that at any time he wanted, Scheidemann could
have gone into the bedroom she claimed was hers, and that she told the officer
Scheidemann's fingerprints may have been on the baggies of marijuana.
During the questioning,
Dakins indicated that she wanted to talk to an attorney. Kujawa stopped the questioning and left the
apartment with the officers who were with him, without placing Dakins under
arrest.
On review of an order
denying a motion to suppress evidence, findings of fact will be sustained
unless clearly erroneous. See State
v. Kraimer, 99 Wis.2d 306, 318-19, 298 N.W.2d 568, 574 (1980). However, we independently examine the
circumstances to determine whether constitutional requirements are complied
with. Id.
Dakins argues that the
real focus of the investigation was Dakins and that the warrantless search was
illegal. We disagree. A probationer's home, like anyone else's, is
protected by the Fourth Amendment's requirement that searches be reasonable. Warrantless searches are per se
unreasonable. State v.
Milashoski, 159 Wis.2d 99, 110-11, 464 N.W.2d 21, 25-26 (Ct. App.
1990), aff'd, 163 Wis.2d 72, 471 N.W.2d 42 (1991). The State has the burden of proving that the
challenged warrantless search falls within one of the exceptions to this
general rule. State v. Pozo,
198 Wis.2d 705, 710 n.2, 544 N.W.2d 228, 230 n.2 (Ct. App. 1995).
"[W]e have
permitted exceptions when 'special needs, beyond the normal need for law
enforcement, make the warrant and probable-cause requirement
impracticable.'" Griffin v.
Wisconsin, 483 U.S. 868, 873 (1987) (citations omitted). As his sentence for a commission of a crime,
a probationer is committed to the legal custody of the Wisconsin State
Department of Health and Social Services and thereby made subject to that department's
rules and regulations. The warrantless
search of a probationer's home has been held to satisfy the demands of the
Fourth Amendment when it is "carried out pursuant to a regulation that
itself satisfies the Fourth Amendment's reasonableness requirement under
well-established principles." Id.
Wisconsin probation
regulations authorize probation and parole agents to search a probationer's
home if there are "reasonable grounds" to believe that contraband is
present. Cf. id.; Wis. Admin. Code § DOC 328.21(3). We conclude that the record supports the
trial court's determination that the search of Dakins' and Scheidemann's
apartment was a probation search carried out pursuant to department regulations
and therefore no warrant issued by a neutral magistrate was necessary.
Dakins argues that the
Marathon County Sheriff's Department initiated the search, not the probation
and parole officer, and that the probation search procedure is a
"sham" to avoid the constitutional warrant requirement. We disagree. The record demonstrates that the probation officer received
information from the sheriff's department that supplied the "reasonable
grounds" for the search. The
probation officers conducted the search.
The sheriff's officers furnishing information and presence at the search
did not invalidate the search nor transfer the probation department employees
into agents of the sheriff's department.
Cf. Griffin, 483 U.S. at 872-73 (Probation rules
and regulations authorizing department employees warrantless search of
probationer's living quarters satisfied the Fourth Amendment's reasonableness
requirement).
We agree that a
probation and parole search cannot be targeted against a person not under
supervision. See State v.
West, 185 Wis.2d 68, 517 N.W.2d 482 (1994). Nonetheless, a probation or "parole search may extend to all
parts of the premises to which the probationer or parolee has common authority,
just as if it were a consent search."
Id. at 94, 517 N.W.2d at 491. The record supports the trial court determination that they
shared common authority over the premises searched. Dakins does not dispute that she knew that Scheidemann was on
probation at the time she was living with him.
As a result, Dakins' reasonable expectation of privacy was
correspondingly limited. See id. If the Fourth Amendment rights of
nonparolees living with parolees were not reduced, a parolee could avoid all
probation or parole searches by living with nonparolees and emasculate the one
significant feature of the parole system.
Id. at 82, 517 N.W.2d at 486. Because the record supports the trial court's determination that the search was a
probation search and that it extended to areas of common authority and control,
we conclude the search is valid.
In her brief, Dakins
mentions portions of the record suggesting an issue based upon the scope of the
search. Dakins does not discuss or
develop this issue on appeal. "The
court of appeals had no duty to consider any issues other than those presented
to it." Waushara County v.
Graf, 166 Wis.2d 442, 453, 480 N.W.2d 16, 20 (1992). We cannot serve as advocate, State v.
Pettit, 171 Wis.2d 627, 647, 492 N.W.2d 633, 642 (Ct. App. 1992), and
will not develop an appellant's argument.
State v. West, 179 Wis.2d 182, 195-96, 507 N.W.2d 343, 349
(Ct. App. 1993), aff'd, 185 Wis.2d 68, 517 N.W.2d 482 (1994). An issue not briefed or argued is deemed
abandoned. Reiman Assocs., Inc.
v. R/A Advertising, Inc., 102 Wis.2d 305, 306 n.1, 306 N.W.2d 292, 294
n.1 (Ct. App. 1981). We therefore
confine our review to the issues articulated.
Next, Dakins argues her
interrogation was so coercive and custodial in nature that she should have been
afforded Miranda warnings.
We disagree. Where a defendant
is subject to a "custodial interrogation," certain procedural
safeguards are necessary to protect Fifth Amendment rights against compulsory
self-incrimination. However,
"[g]eneral on-the-scene questioning as to facts surrounding a crime or
other general questioning of citizens in the factfinding process" is
specifically exempted in Miranda. Kraimer, 99 Wis.2d at 330, 298 N.W.2d at 579
(quoting Miranda v. Arizona, 384 U.S. 436, 477-78 (1966)
(emphasis deleted)). We consider the
totality of the circumstances, including the defendant's freedom to leave the
scene, the purpose, place and the length of the interrogation. State v. Leprich, 160 Wis.2d
472, 477, 465 N.W.2d 844, 846 (Ct. App. 1991).
Here, the record
supports a finding that the purpose of the questions was to investigate
Scheidemann, that the questioning was not lengthy, it took place in Dakins'
apartment, and that her movements were not restricted. She was free to telephone her attorney. The officer testified that once she
confessed the contraband belonged to her, he disbelieved her. He believed she was covering up for Scheidemann,
who was the target of the search, and that her story was incredible. When she indicated she no longer wanted to
answer questions, the officer ceased questioning, and the officers left the
apartment without placing Dakins under arrest.
Under these circumstances, we conclude that the officer's suspicions
were not focused against Dakins and she was not subject to any degree of
restraint as to require Miranda warnings.
Finally, Dakins argues
that Kujawa's testimony is inconsistent and incredible. This is not an appellate argument. Weight and credibility of testimony are
fact-finding determinations for the trial court, not the appellate court. See Whitaker v. State,
83 Wis.2d 368, 377, 265 N.W.2d 575, 580 (1978). The trial court was entitled to determine that Kujawa's testimony
was more credible than Dakins'. Our
review of the record demonstrates that the trial court properly denied Dakins'
suppression motion.
By the Court.—Judgment
affirmed.
Not recommended for
publication in the official reports.