Can I be searched on probation? Act 79 searches explained

Act 79 searches allow law enforcement without a warrant, consent

You read that right.  The Supreme Court recently described Act 79 searches.  “Act 79 allows law enforcement to search a person on a specified probation, parole, or extended supervision status 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. However, if a person is subject to Act 79, a full search may be conducted on the lesser showing of reasonable suspicion.”  State v. Anderson, 2019 WI 97.  

The Anderson case is one of first impression for the Supreme Court of Wisconsin.  Caselaw regarding Act 79 searches, prior to this decision was sparse.  For individuals on probation, extended supervision, and extended supervision, this is an important case.  Our criminal defense attorney explains this important decision and what is means for supervised offenders.  For any questions, contact Van Severen Law Office at (414) 270-0202.  We drafted this blog post in November, 2019.

If you’re facing revocation of probation, extended supervision, or parole, contact us for a consultation.

State v. Roy S. Anderson

The Supreme Court decision is based on an incident that occurred on August 25, 2015 in Racine, Wisconsin.  Officer Michael Seeger of the Racine Police Department received two tips regarding Mr. Anderson selling illegal narcotics.  Seeger indicated the tips were “two separate tips from a reliable and credible informant.”  The informant indicated the sales occurred behind Mr. Anderson’s residence.

Officer Seeger observed Anderson riding a bicycle on a sidewalk in violation of a city ordinance.  Upon observing the officer, Anderson drove his bicycle down an alley.  While operating his vehicle down the alley, Anderson removed one of his hands from the handlebars and placed it in his pocket.  This led the police officer to believe Anderson was “concealing an item within his pocket.”

The officer ordered Anderson to stop and then searched him.  He located two individual bags of crack cocaine, over $200.00 in cash, and two cell phones.

Additionally, Officer Seeger indicated that he knew Anderson was on probation as of March 17, 2015.  He further indicated that he knew Anderson had a prior felony conviction “under Act 79.”  Seeger did not know how long Anderson’s “probation” period extended.

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Court of appeals

Anderson challenged the search at the trial court level and lost the argument.

The Court of Appeals affirmed the trial court decision.  That court found that “Seeger had sufficient basis to believe that Anderson was subject to Act 79.”  Further supporting that decision, the court found “Seeger was familiar with Anderson, having arrested him before for possession of cocaine…” and that Seeger “knew that Anderson had been convicted of a felony and released on community supervision on March 17, 2015.

A man is subject to an Act 79 search
Individuals on probation, extended supervision, and parole have less privacy because of Act 79 searches.

Knowledge requirement for Act 79 searches

Certainly law enforcement must know the defendant is subject to Act 79.  If not, law enforcement could use an Act 79 search to justify any warrantless, non-probable cause search.  There must be reasonable suspicion to perform that search.

In the Anderson case, the Supreme Court of Wisconsin determined there was reasonable suspicion to believe “Anderson was committing, was about to commit, or had committed a crime.”

But what about knowledge that the defendant is on supervision?  That’s certainly important.  Anderson asserted that the officer lacked knowledge he was on supervision.  Without that knowledge, Anderson asserted that he shouldn’t have been subject to Act 79’s provisions.  Specifically, Anderson believed Seeger’s record check, indicating Anderson has been released on “probation” on March 17, 2015 failed to support a conclusion that he remained on supervision on August 25, 2015.  During testimony to the trial court, the officer simply indicated he knew Anderson’s probationary status.  He didn’t know for how long.  He didn’t even appear to know for what.  But the Supreme Court found that sufficient.

Reasonable suspicion

Reasonable suspicion is a low bar.  “Although it is no possible to state precisely what the term reasonable suspicion means, it is a ‘commonsense nontechnical conception … that deal[s] with ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'” Ornelas v. United States, 517 U.S. 690, 695 (1996).  Reasonable suspicion “must be based on ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.'” State v. Ricahrdson, 156 Wis. 2d 128, 139, 456 N.W.2d 830 (1990).  Analyzing a totality of the circumstances helps determine reasonable suspicion.  State v. Post, 2007 WI 60.

In Anderson, the Supreme Court certainly found the totality of the circumstances sufficient to support probable cause.  Firstly, the two tips.  Secondly, Officer Seeger arrested Anderson previously.  Thirdly, Anderson was in a high crime area.  And finally, Anderson behaved evasively.

Is an anonymous tip enough?

In the Anderson case, the Supreme Court of Wisconsin found the anonymous tips, on their own, weren’t enough to show the necessary reasonable suspicion.  In this case, the tips provided police more information.  It added to the totality of the circumstances supporting reasonable suspicion.   Additionally, the Court indicated multiple facts in the record corroborated the tips

Contact Van Severen Law Office for criminal defense

Finally, if you’re on probation, extended supervision, or parole, it’s crucial you recognize your decreased expectation of privacy.  Your constitutional protections do not match that of non-supervised citizens.  Call Van Severen Law Office if accused of a probation violation, an extended supervision violation, or a parole violation.

(A criminal defense attorney wrote this blog post on November 19, 2019.)

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