PUBLISHED OPINION
Case No.: 96-0099-CR
†Petition for
Review Filed
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
VINCENT ANGIOLO,
Defendant-Appellant.†
Submitted on Briefs: October 31, 1996
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: December 18, 1997
Opinion Filed: December
18, 1997
Source of APPEAL Appeal from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Washington
(If
"Special", JUDGE: RICHARD T. BECKER
so indicate)
JUDGES: Brown, Nettesheim and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the defendant-appellant, the cause was
submitted on the briefs of John Miller Carroll, S.C. of Milwaukee.
Respondent
ATTORNEYSOn behalf of the plaintiff-respondent, the cause was
submitted on the brief of James E. Doyle, attorney general, and Warren
D. Weinstein, assistant attorney general.
|
COURT OF
APPEALS DECISION DATED AND
RELEASED December
18, 1996 |
NOTICE |
|
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, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-0099-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
VINCENT
ANGIOLO,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Washington County: RICHARD T. BECKER, Judge. Affirmed.
Before
Brown, Nettesheim and Snyder, JJ.
NETTESHEIM,
J. Vincent Angiolo appeals from a judgment of
conviction for party to the crime of theft pursuant to §§ 943.20(1)(a) and
(3)(c), and 939.05, Stats. Angiolo argues that the trial court erred by
denying his motion to suppress evidence seized pursuant to a search
warrant. The warrant was issued based
on observations made by Angiolo's probation agent during a “home visit.” After the warrant was executed, this court
reversed Angiolo's conviction which had produced the probation. State v. Angiolo, 186 Wis.2d
488, 492, 520 N.W.2d 923, 926 (Ct. App. 1994) (Angiolo I).[1] Seeking to apply this reversal
retroactively, Angiolo contends that the probation agent did not have authority
to enter his home.
We
conclude that the trial court properly denied Angiolo’s motion to suppress the
evidence. Accordingly, we affirm the
judgment.
FACTS
In
April 1993, Angiolo was convicted in Waukesha County Circuit Court of two
felony counts of receiving stolen property.
He was placed on concurrent two-year terms of probation. Probation Agent Byron Neal was assigned as
Angiolo's supervising agent. Angiolo
took an appeal to this court. However,
neither the judgment nor the probation provision was stayed pending the appeal.[2]
While
pursuing that appeal, Angiolo was arrested by the Village of Germantown Police
Department for operating a motor vehicle with an expired registration and
operating with a revoked license. After
the arrest, the police inventoried the contents of Angiolo's vehicle. They discovered various items which led them
to suspect that Angiolo was involved in recent burglaries.
On
December 7, 1993, a detective from the Germantown police department contacted
Neal and advised that Angiolo was a possible burglary suspect. Neal responded that Angiolo had missed a
recent appointment and that he was planning a “home visit” with Angiolo. Neal stated that he would notify the police
department if he saw any items that might be stolen. In response, the police department sent Neal a facsimile
containing a list of the stolen items.
During
the home visit on December 8, 1993, Angiolo led Neal into his garage where Neal
observed two large tool boxes matching the descriptions given on the list
provided by the police department.
Later that day, Neal advised the police department of his observations
and, armed with this information, the police department sought and obtained a
search warrant for Angiolo's residence from the Washington County Circuit
Court.[3] The ensuing search of Angiolo's residence
resulted in the seizure of various items which led to the charges in this
case.
On
July 27, 1994, this court reversed Angiolo’s Waukesha County conviction. See Angiolo I. As a result, Angiolo filed a motion to
suppress the evidence seized pursuant to the search warrant. He argued that our reversal retroactively
rendered Neal's presence during the home visit illegal, and consequently,
Neal's observations could not be used to support the issuance of the
warrant. The trial court rejected
Angiolo’s argument and denied his motion.[4] Angiolo appeals.
DISCUSSION
The
State first contends that Angiolo's argument fails because he did not obtain a
stay of the probation. While a stay certainly
was an option which Angiolo could have pursued, we do not base our holding
squarely on that fact. Instead, we
address the issue on a broader front:
whether the reversal of a conviction resulting in probation
retroactively renders unlawful the acts taken by the probation agent during the
supervision.[5]
We
begin by noting that Angiolo properly does not challenge a probation officer’s
right to conduct a warrantless search.
This is in accord with State v. Griffin, 131 Wis.2d 41,
58, 388 N.W.2d 535, 541 (1986), aff'd, 483 U.S. 868 (1987), which holds
that “based on the nature of probation ¼ a probation agent who reasonably believes that a
probationer is violating the terms of probation may conduct a warrantless
search of a probationer’s residence.”
Nor does Angiolo challenge the trial court’s finding that Neal’s
observations constituted probable cause for issuance of the search warrant.
Instead,
Angiolo argues that Neal's observations must be excised from the information
given in support of the issuance of the warrant because Angiolo's conviction
which produced the probation was subsequently reversed. Angiolo's argument produces an intriguing
dichotomy. On the one hand, he concedes
that the search warrant was valid when issued and executed. On the other hand, he contends that the
warrant retroactively lost its validity by virtue of our reversal in Angiolo
I. No Wisconsin case has
directly spoken to this issue.
Nonetheless, by looking to analogous situations involving the law of
escape, we disagree with Angiolo's argument.
In
State v. Grobstick, 200 Wis.2d 242, 250, 546 N.W.2d 187, 190 (Ct.
App. 1996), the defendant had escaped while the police were attempting to
execute a bench warrant for his failure to appear in a civil forfeiture
proceeding.[6] The defendant argued that he could not
legally commit the crime of escape since the escape statute requires custody
for a crime, not a civil forfeiture. See
id. at 252-53, 546 N.W.2d at 190-91. In the course of its analysis, the court noted the following:
The
actor's innocence of the crime for which he is in custody is no defense to the
crime of escape. Wis J I-Criminal 1772 n.4 (quoting
Judiciary Committee's 1953 Report on the Criminal Code, cmt., at 191). See also People v. Hill,
160 N.E.2d 779, 781 (Ill. 1959) (rejecting contention that a prisoner commits
no crime when he escapes unless his commitment is technically lawful in all
respects); State v. Pace, 402 S.W.2d 351, 353 (Mo. 1966)
(authorities agree that defendant's innocence on the original charge,
invalidity of the original information or indictment, acquittal, or reversal
of conviction on appeal is not a defense to charge of escape).
Grobstick, 200 Wis.2d at 254-55, 546 N.W.2d at 192 (emphasis added).
The
same rationale applies here. Just as a
subsequent reversal of the underlying conviction does not retroactively undo an
escape conviction based thereon, we hold that a later reversal of a conviction
resulting in probation does not undo the lawful acts performed by the probation
agent while conducting the probation supervision. Thus, Neal was lawfully on Angiolo's premises during the home
visit.
An
appellate reversal of a criminal conviction accomplishes much. It erases the conviction, relieves the
defendant from the stigma thereof, and frees the defendant from the obligations
and disabilities directly relating to the conviction. However, the reversal does not reach so deep as to retroactively
render unlawful those official acts taken under the auspices of that conviction.
The
basic simplicity of this case is clouded by the attenuated and circumstantial
nature of the facts. Angiolo was a
suspect at the time of Neal's home visit.
Neal, while conducting the home visit in his agent capacity, was also
serving as a conduit of information to the police department. Neal then reported his observations to the
police who, in turn, sought and obtained the search warrant which ultimately
resulted in the seizure of the incriminating evidence.
But
if these intervening events are removed, the basic fact which emerges is that
Neal simply made observations which were relevant to likely criminal
activity. Viewed in this light, the
issue in this case becomes clearer and the correct answer more
self-evident. This case is no different
than if Neal had directly observed Angiolo commit a crime in his presence
during a home visit. We see nothing in
the law or public policy which requires that Neal be disqualified as a witness
in such a situation simply because the conviction producing the probation was
later reversed.
We
conclude that the trial court properly denied Angiolo’s request to suppress the
evidence seized under the warrant. We
affirm the judgment of conviction.
By
the Court.—Judgment affirmed.
[1] We held that the warrantless search of
Angiolo's storage garage and the subsequent seizure of certain evidence were
invalid under the Fourth Amendment. State
v. Angiolo, 186 Wis.2d 488, 492, 520 N.W.2d 923, 926 (Ct. App.
1994). Following our remand, the
charges against Angiolo were dismissed.
[2] The trial court in the prior matter did stay
a period of confinement in the county jail imposed as a condition of probation
pending Angiolo's appeal.