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COURT OF
APPEALS DECISION DATED AND
RELEASED May
23, 1996 |
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, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-1285-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
RANDOLPH
S. GUENTERBERG,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Columbia County: LEWIS W. CHARLES, Judge. Affirmed.
Before
Eich, C.J., Gartzke, P.J., and Vergeront, J.
GARTZKE,
P.J. Randolph Guenterberg appeals from
a judgment of conviction on two counts of burglary, § 943.10(1)(a), Stats.
Guenterberg entered Alford pleas after the trial court
denied his motions to suppress evidence obtained as a result of a warrantless
search of his home and his vehicle.[1] For purposes of appeal, the searches are
treated as one. The issues are whether
Guenterberg voluntarily consented to the search by the police of his residence
and his vehicle and, if not, whether the probation search was lawfully
conducted.[2] Because we conclude that Guenterberg
voluntarily consented to the police search, we affirm without deciding whether
the probation search was lawful.
A
warrantless search conducted pursuant to a voluntary consent without probable
cause does not violate the Fourth Amendment to the United States
Constitution. United States v.
Cody, 7 F.3d 1523, 1527 (10th Cir. 1993). Whether the consent is valid turns on its voluntariness.
Voluntariness
of a consent to search is determined from the totality of the
circumstances. State v. Nehls,
111 Wis.2d 594, 598, 331 N.W.2d 603, 605 (Ct. App. 1983). The State must prove voluntary consent by
clear and convincing evidence. Laasch
v. State, 84 Wis.2d 587, 592, 267 N.W.2d 278, 282 (1978). The test is whether the consent to search
was given in the absence of actual coercive, improper police practices designed
to overcome resistance. State v.
Xiong, 178 Wis.2d 525, 532, 504 N.W.2d 428, 430 (Ct. App. 1993). "[O]vert acts are not the sole
criterion of coerciveness. If there is
evidence that police are taking subtle advantage of a person's personal
characteristics, that may be a form of coercion." Id. at 534, 504 N.W.2d at 431.
When
applying the test, we review the trial court's findings of historical facts
under the clearly erroneous standard, and we "independently apply
constitutional principles to the facts as found to determine whether the
standard of voluntariness has been met."
Id. at 531, 504 N.W.2d at 430 (citations omitted).
The
historical facts are substantially undisputed, notwithstanding some variations
in the testimony at the suppression hearing.
In February 1993 Guenterberg was on parole, living in a trailer park in
Beaver Dam. His parole agent in Green
Bay learned from officer Welton of the Mayville police department that
Guenterberg was a burglary suspect.
Having other information that Guenterberg had been involved in thefts in
the Green Bay area, his parole agent believed it likely that he possessed stolen
property. She contacted the Beaver Dam
parole office and requested that a Beaver Dam parole agent conduct a probation
search.
On
February 4, 1993, James Rehrauer, a parole agent in Dodge County, met with
police officers from the Beaver Dam, Mayville and Portage police
departments. He testified that the
policy is that a parole officer have law enforcement officers present to
provide security when a probation search is conducted. The officers went to the trailer court where
Guenterberg lived. He was absent. Rehrauer temporarily left Guenterberg's
trailer, and when he returned Guenterberg was handcuffed.
Rehrauer
testified that he identified himself to Guenterberg as a parole agent with the
Beaver Dam office. He told Guenterberg that his Green Bay parole agent had
requested a search, and he was going to search both Guenterberg's residence and
vehicle. He asked Guenterberg if he
would allow the officers to enter his residence, and Guenterberg agreed. Rehrauer, the officers and Guenterberg
entered the trailer, and Rehrauer began his search while Guenterberg spoke with
the officers.
Rehrauer
testified he saw a pair of tennis shoes on the floor of the trailer. Detective Manthey of the Portage police
department had shown him photographs of foot imprints left at the scene of a
burglary in Portage. When Rehrauer
examined the tennis shoes, he saw markings on the heel areas consistent with
those on the shoes in the photographs, and he believed the shoes might provide
evidence of a crime, a violation of Guenterberg's parole. Because he had no evidence locker, Rehrauer
gave the shoes to officer Welton.
Rehrauer
testified that at no time when he spoke to Guenterberg did he threaten him with
revocation of his parole, make promises to him, or tell him that he had to sign
forms presented to him by the police officers.
He noticed nothing abnormal about Guenterberg in the trailer. Guenterberg did not yell or use bad language
and he was cooperative. As a parolee,
he had no right to refuse to allow the parole search and his parole could be
revoked for refusing to cooperate.
Refusal to consent to a police search would not have violated his
parole.
Rehrauer
testified that after Welton spoke with Guenterberg regarding permission for the
police to conduct their independent search, Guenterberg signed an authorization
to that effect, and the police went outside to search his vehicle. The police conducted that search, but had
they not done so, Rehrauer would have.
Detective
Meyer, with the Beaver Dam police department, testified that he told officer
Welton he would not participate in a search unless he had permission, and they
discussed the form needed for a permissive police search. Meyer provided a consent-to-search form.
Detective
Meyer testified that before they entered the trailer, he asked Guenterberg if
the police could enter his residence to conduct a police search. Meyer explained to Guenterberg outside the
trailer that a probation search and a police search are separate, and that the
police asked for his consent and not the parole agent. Guenterberg responded, "Yeah, no
problem." Inside the trailer
Guenterberg consented to a search of his vehicle. After Welton explained the consent-to-search form, Guenterberg
signed it. The form states that the
person consenting knows of his "lawful right to refuse to consent to such
a search." After Guenterberg
signed the consent form, Meyer saw tennis shoes on the floor. He pointed out the shoes to Rehrauer because
the Portage detective had said a burglary had occurred in his jurisdiction, a
tennis shoe print had been left and Meyer had seen the photographs of the
print. Rehrauer picked up the
shoes. Meyer asked Guenterberg if he
could search Guenterberg's vehicle.
Guenterberg consented. Detective
Meyer testified that when he searched the vehicle, he found coins, some pry
bars, screwdrivers, a map and a "slim jim lock jock," a device used
to unlock vehicles. He turned those
items over to officer Welton.
Timothy
Welton, an officer with the Mayville police department, testified that
Guenterberg signed the consent form in his presence. When Welton was with Guenterberg, no weapons were displayed, his
custody was not used as a leverage against him, nobody told him he would be
released if he signed the consent form, no promises had been made to sign, no
threats were made by the officers, no threats were made regarding revocation of
parole, none of the officers discussed revocation with him, he was not
threatened with physical abuse, and his emotional condition seemed good.
Welton
testified that later that day Guenterberg was taken to the Dodge County jail
where he signed a statement. Welton
wrote it out, except for the answers which Guenterberg himself wrote. According to the statement, Guenterberg gave
his voluntary consent to detectives Meyer and Orlandoni to search his vehicle
and residence, the searches were voluntary and he had signed a permission to
search.
Detective
Manthey of the Portage police department was present when Guenterberg was
arrested. He heard no threats, and saw
no physical force.
George
Pfiffer testified that he and Guenterberg were neighbors. On February 4, 1993, Pfiffer saw squad cars
pulling in front of his trailer. The
officers said they were looking for Guenterberg and wanted to know if the car
parked outside was his. One detective
went to and started to search it. He
did not get inside but he had the doors open.
Pfiffer did not see them remove anything from the vehicle.
Guenterberg
testified that when he arrived at his home, officer Orlandoni said he was under
arrest on an apprehension warrant from his parole agent and "they"
would like to search his residence and vehicle. Guenterberg agreed. He
testified, "I was under the impression that this was through my P.O. and
so forth, that I had no--if I refused to cooperate with my P.O. in any shape or
form, that would be a reason for revocation."[3] He had "no gripes" about
submitting to a search because he knew he had "no choice any way, by my
P.O." At the jail he signed a
statement that he had voluntarily signed a permission to search. He wanted to cooperate because he did not
want to be "revocated."
Shortly after he was paroled in October 1992, he signed a rule stating
he was to make himself available for search of his residence or any property
under his control. He understood a
parolee cannot refuse any request that a parole agent makes of him, and the
alternative is parole revocation proceedings.
Guenterberg
testified he did not recall any officer asking for consent to search the
residence or his vehicle and telling him it was an independent police investigation
and not a parole search. He understood
the search was by his parole agent.
When the police asked him to sign a police consent, he did not read it,
because he considered it a "formality." When he signed he thought it was "just a formality because
my P.O. wanted to search my residence."
He thought his consent covered the search of both his residence and his
vehicle.
Following
the suppression hearing, the trial court denied Guenterberg's motions. The court found that Guenterberg had
voluntarily consented to the searches by the parole officer and the
police. No weapons were drawn, no
promises were made, and no threats were made.
The trial court took into account Guenterberg's personal
characteristics. The court said that
while the number of officers present meant possible intimidation, Guenterberg
did "not impress this Court as one who is very susceptible to
intimidation, [he] having spent nine or ten years in the state prison
system." The court said that the
testimony by Pfiffer that the officers had searched Guenterberg's vehicle
before they obtained a consent, was not credible, because he testified from a
statement Guenterberg's girlfriend had typed.
The trial court denied the motions to suppress.
The
trial court's findings of historical facts are skimpy. We employ the clearly erroneous standard
when reviewing factual findings by a trial court. Section 805.17(2), Stats. To the extent the court did not make
specific findings to support its conclusion that Guenterberg had voluntarily
consented to the police search, we may assume that the court impliedly made
such findings. Sohn v. Jensen,
11 Wis.2d 446, 453, 105 N.W.2d 818, 820 (1960). Our review is not limited to the suppression hearing record. We may take into account facts appearing on
the face of the judgment or developed at the sentencing hearing. See State v. Gaines,
197 Wis.2d 102, 106-07 n.1, 539 N.W.2d 723, 725 (Ct. App. 1995) (appellate
review of suppression orders may include trial evidence, evidence at the
preliminary hearing and the record supporting issuance of a warrant).
The
judgment shows that Guenterberg was born in June 1960. We know from the sentencing hearing that
although he had not graduated from high school, he had a general equivalency
degree and that he indeed served some nine years in prison. Consequently, at the time of the search he
was a mature adult armed with a reasonable education and experience in the
criminal system.
Guenterberg
emphasizes that he believed that the search was being conducted by his parole
agent and that he had to consent to a police search. But detective Meyer testified that he explained to Guenterberg
that a probation search and a police search were separate, that it was the
police who had asked for his consent and not the parole agent, and that
Guenterberg had responded, "Yeah, no problem." Guenterberg himself made no claim at the
suppression hearing that the parole agent or any police officer told him that
he had to consent to a police search or that the police search was a search by
the parole agent. Guenterberg's belief
to the contrary--that he had no right to refuse to consent--is immaterial. "While knowledge of the right to refuse
consent is one factor to be taken into account, the government need not
establish such knowledge as the sine qua non of an effective
consent." Schneckloth v.
Bustamonte, 412 U.S. 218, 227 (1973).
No evidence exists that the police caused Guenterberg to believe he had
no right to refuse to consent. This is
not a situation in which the police misrepresented their right to search. See Bumper v. North Carolina,
391 U.S. 543, 548 (1968) (no consent existed to search when officer
misrepresented he had a warrant).
Guenterberg
states that the police strategy was from the beginning to search his home for
evidence of a crime, using the parole agent to gain entry, and that they
planned to obtain Guenterberg's signature on a consent form at the same time
the parole agent said he had no right to refuse to consent to the search. Assuming the police had planned to search
Guenterberg's home by using the parole agent to gain entry, the entry was
lawful and obtained without coercion or trickery or misrepresentation. Guenterberg consented to the police search,
and there is no evidence that his parole agent or any police officer told him
he had no right to refuse to consent.
The Green Bay parole agent initiated the search. The police conducted their own search but
only after lawfully entering Guenterberg's home and obtaining his consent.
We
conclude that the trial court's order denying Guenterberg's motions to suppress
is proper. The judgment convicting
Guenterberg of burglary must be affirmed.
By
the Court.—Judgment affirmed.
Not
recommended for publication in the official reports.
[1] Under an Alford plea, a
defendant pleads guilty to a charge but claims innocence. North Carolina v. Alford, 400
U.S. 25 (1970); State v. Garcia, 192 Wis.2d 845, 856, 532 N.W.2d
111, 115 (1995).
[2] The record contains references to the
warrantless search of Guenterberg's home as a parole search, a probation search
and an administrative search. However
named, the warrantless search was conducted pursuant to Wis. Adm. Code § DOC 328.21 (April 1990) which
authorizes Department of Corrections field staff to search a parolee's or
probationer's living quarters or property if reasonable grounds exist to
believe that the quarters or property contain contraband. Griffin v. Wisconsin, 483 U.S.
868, 875-76 (1987), held Wisconsin's probation system has made the warrant
requirement impracticable and justifies replacement of the standard of probable
cause by "reasonable grounds" as defined by the Wisconsin Supreme Court.