author: N. PATRICK CROOKS, J. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

text:
    State of Wisconsin, Plaintiff-Appellant-Petitioner, v. Charles J. Hajicek, Defendant-Respondent.
    Supreme Court

      No. 98-3485-CR.

      Oral argument October 5, 2000.

    Decided January 17, 2001.

    2001 WI 3
    (Also reported in 620 N.W.2d 781.)

      For the plaintiff-appellant-petitioner the cause was argued by Jennifer E. Nashold, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.
    For the defendant-respondent there was a brief by Bruce J. Rosen, Susan C. Blesener and Pellino, Rosen, Mowris & Kirkhuff, S. C., Madison, and oral argument by Bruce J. Rosen.

   N. PATRICK CROOKS, J.

¶ 1. The petitioner, the State of Wisconsin, seeks review of a published decision by the court of appeals, State v. Hajicek, 230 Wis. 2d 697, 602 N.W.2d 93 (Ct. App. 1999), which affirmed a La Crosse County Circuit Court order granting a motion to suppress evidence. The circuit court, Judge Dennis G. Montabon presiding, found that the evidence, obtained during a warrantless search of the residence of the respondent, Charles J. Hajicek (Hajicek), was the result of an unlawful police search, not a permitted probation search, as the State claimed. The court of appeals affirmed, holding that the circuit court's determination that the search of Hajicek's residence was a police search was not clearly erroneous.

¶ 2. We reverse. We hold that the determination of whether a search is a police or probation search is a question of constitutional fact reviewed according to a two-step process. First, we review the circuit court's findings of historical fact under the clearly erroneous standard. Second, we review the circuit court's determination of constitutional fact de novo. We apply this two-step standard of review and hold that the search of Hajicek's residence was a probation search.

¶ 3. The determination that the search of Hajicek's residence was a probation search is not the end of our inquiry. We must also determine whether the search, as a probation search, was reasonable. Such a search is reasonable if the probation officer has "reasonable grounds" to believe that a probationer has contraband. In applying that standard, we hold that the probation search of Hajicek's residence was reasonable.

I

¶ 4. In the summer of 1997, Hajicek was on probation with minimal supervision due to a 1995 conviction of possession of marijuana with intent to deliver. On August 20, 1997, Hajicek's probation officer, Lynn Hightire (Hightire), received an anonymous tip that Hajicek was involved in drug use, drug trafficking, or both. Shortly after receiving the tip, Hightire ordered a urinalysis for Hajicek. On August 28, 1997, Hightire confirmed the information contained in the tip with the La Crosse County Sheriffs Department and forwarded Hajicek's file to the Corrections Supervisor in La Crosse County, William Hammes (Hammes).

¶ 5. Hammes decided to conduct a search of Hajicek's residence. On approximately August 28, 1997, Hammes contacted Investigator Kurt Papenfuss (Papenfuss) of the La Crosse County Sheriffs Department and Special Agent Jim Sielehr (Sielehr) of the Wisconsin Department of Justice, Division of Narcotics Enforcement (DNE) to verify the information contained in the tip. Papenfuss and Sielehr told Hammes that the DNE was investigating Hajicek and searching Hajicek's garbage for evidence of drug trafficking in order to obtain a search warrant. Sielehr asked Ham-mes to delay his search so that the DNE could continue its investigation. Hammes agreed, and, during the delay of less than four weeks, did not contact Hajicek or order a urinalysis for him.

¶ 6. On September 24, 1997, Papenfuss, Sielehr, and DNE Special Agent Peter M. Thelen (Thelen) contacted Hammes and told him that the DNE had failed to obtain sufficient evidence for a search warrant of Hajicek's residence. Hammes told Papenfuss that he would proceed with his search of Hajicek's residence and asked Papenfuss for assistance with the search. Papenfuss agreed to assist. Fifteen minutes before the search, Papenfuss notified the assistant district attorney of the impending search.

¶ 7. Hammes, Papenfuss, Sielehr, Thelen, and probation agent Michael Johnson (Johnson) went to Hajicek's residence. When Hajicek answered the door, Hammes identified himself and told Hajicek that he was there to conduct a search of the residence. Before Hammes and Johnson proceeded with the search, Papenfuss and Sielehr secured Hajicek's residence by walking through the house. Sielehr and Thelen watched Hajicek as Hammes and Johnson conducted the search. Papenfuss followed Hammes as Hammes searched Hajicek's bedroom. After Hammes found the drug Percocet in Hajicek's bedroom, Hammes placed Hajicek on a probation hold for possession of the Percocet. Sielehr then placed Hajicek under arrest.

¶ 8. Hammes asked Hajicek if there was any marijuana in the residence. Hajicek told Hammes about a duffel bag in the garage that contained approximately seven and one half pounds of marijuana. After Hammes searched the garage and found the marijuana, the law enforcement officers decided to take Hajicek to jail and then to obtain a search warrant. In the meantime, Hammes searched Hajicek's truck and found a large amount of cash. Thelen was present during the search of the truck.

¶ 9. Law enforcement officers returned to Hajicek's residence with a search warrant. Based upon the evidence found during the execution of the initial search warrant, they later obtained two additional search warrants.

¶ 10. On November 3,1997, Hajicek was charged with five felony drug offenses and one misdemeanor drug offense. On December 1, 1997, Hajicek moved to suppress the evidence found as a result of Hammes's and Johnson's search of his residence and the subsequent searches by the law enforcement officers. The circuit court granted Hajicek's motion, concluding that the search of Hajicek's residence was an unlawful police search and that the evidence was obtained in violation of the Fourth Amendment;

¶ 11. The circuit court concluded that the search was a police search based on the following five findings of historical fact: (1) the law enforcement officers dictated the timing of the search because Hammes delayed the search at the request of law enforcement; (2) the law enforcement officers that participated in the search were the same officers that failed to obtain a search warrant during their investigation of Hajicek; (3) the law enforcement officers notified the assistant district attorney before conducting the search; (4) the law enforcement officers and the probation officers both failed to document their communications regarding the delay of Hammes' search; and (5) Hammes did not carry out the objectives of probation supervision during the delay of the search, since he failed to supervise 'Hajicek and to order a urinalysis of him. The circuit court determined that these five findings of historical fact indicated that law enforcement objectives took precedence over probation objectives, turning the search of Hajicek's residence into a police search.

¶ 12. The court of appeals affirmed the circuit court's suppression order. The court of appeals concluded that the determination of whether a search is a police or probation search is a question of historical fact. The court of appeals relied on State v. Griffin, 131 Wis. 2d 41, 388 N.W.2d 535 (1986), aff'd, Griffin v. Wisconsin, 483 U.S. 868 (1987), and State v. Flakes, 140 Wis. 2d 411, 410 N.W.2d 614 (Ct. App. 1987), to support its conclusion. According to the court of appeals, the fact that both opinions use the word "finding" to describe the determination of whether a search is a police or probation search implies that it is a question of historical fact. The court of appeals also relied on United States v. Jarrad, 754 F.2d 1451 (9th Cir. 1985) and United States v. Richardson, 849 F.2d 439 (9th Cir. 1988). In both cases the Ninth Circuit held that the determination of whether a search is a police or probation search is a question of fact reviewed under a clearly erroneous standard. Jarrad, 754 F.2d at 1454; Richardson, 849 F.2d at 441.

¶ 13. The court of appeals treated the circuit court's determination that the search of Hajicek's residence was a police search as a question of historical fact, and held that the determination was not clearly erroneous. According to the court, there was sufficient evidence in the record to support the five findings of historical fact relied on by the circuit court.

II

¶ 14. The first issue we address concerns the standard of review. The determination of whether a search is a police or probation search presents a question of constitutional fact. A question of constitutional fact is "one whose determination is 'decisive of constitutional rights.'" State v. Martwick, 2000 WI 5, ¶ 17, 231 Wis. 2d 801, 604 N.W.2d 552 (citations omitted). The United States Supreme Court has stated that constitutional facts are "issues which, though cast in the form of determinations of fact, are the very issues to review [for] which this Court sits." Watts v. Indiana, 338 U.S. 49, 51 (1949). In Watts, the Court held that the volunta-riness of a confession is a question of constitutional fact, though cast in the form of historical fact. 338 U.S. at 51-52. The Court held that the determination of voluntariness is a question of constitutional fact because the determination requires the application of a constitutional standard to uncontroverted facts. Id. at 51. Likewise, we conclude that the determination of whether a search is a police or probation search requires a conclusion based on uncontroverted facts. Consequently, the determination of whether a search is a police or probation search is a question of constitutional fact. It is a question whose "determination is 'decisive of constitutional rights.'" Martwick, 2000 WI 5 at ¶ 17.

¶ 15. A question of constitutional fact presents a mixed question of fact and law reviewed with a two-step process. Martwick, 2000 WI 5 at ¶ 16; State v. Phillips, 218 Wis. 2d 180, 189, 577 N.W.2d 794 (1998). First, an appellate court reviews the circuit court's findings of historical fact under the clearly erroneous standard. Martwick, 2000 WI 5 at ¶ 18. Second, an appellate court reviews the circuit court's determination of constitutional fact de novo. Id.

¶ 16. In Martwick, we faced the issue of the standard of review in a curtilage case. Id. at ¶ 16. In concluding that review of a curtilage determination required a two-step process, we relied on Ornelas v. United States, 517 U.S. 690 (1996). In Ornelas, the United States Supreme Court held that the determination of whether reasonable suspicion or probable cause exist to justify a warrantless search requires a two-step standard of review. 517 U.S. at 699. The Court reviewed the determination of historical facts, the events leading up to the search, for clear error. Id. at 696. The Court then reviewed the determination of whether the historical facts amount to reasonable suspicion or probable cause de novo. Id. at 696-97. The Court stated that applying a deferential standard of review to a trial court's ultimate determination of probable cause or reasonable suspicion would lead to "varied results" that "would be inconsistent with the idea of a unitary system of law." Ornelas, 517 U.S. at 697. By contrast, the Court stated that applying an independent standard of review to the ultimate determination of reasonable suspicion and probable cause will allow appellate courts to "maintain control of, and to clarify, the legal principles." Id.

¶ 17. We also relied on Wisconsin precedent for our decision in Martwick. We stated that independent review of questions of constitutional fact " 'provide[s] uniformity in constitutional decision-making.'" Martwick, 2000 WI5 at ¶ 20 (quotingPhillips, 218 Wis. 2d at 194). Wisconsin courts have applied this two-step standard of review to "a variety of constitutional challenges." Phillips, 218 Wis. 2d at 190. In addition, we noted that Wisconsin courts "traditionally appl[y] the two-step standard of review to constitutional search and seizure inquiries." Martwick, 2000 WI 5 at ¶ 20.

¶ 18. Therefore, independent review of the determination of whether a search is a police or probation search is consistent with both federal and Wisconsin precedent. Independent appellate review will provide uniformity in the decisions of whether a search is a police or probation search and will prevent varied results. In addition, independent appellate review provides guidance to litigants, lawyers, and trial courts.

¶ 19. Hajicek contends that the court of appeals was correct in holding that the determination of whether a search is a police or probation search is a question of historical fact. Hajicek argues that the conclusion that the search was a police search is subject only to the clearly erroneous standard of review. Hajicek presents three arguments that we will address in turn.

¶ 20. First, Hajicek argues that Wisconsin precedent supports the historical fact conclusion. In both State v. Griffin and State v. Flakes, the word "finding" was used to describe the determination that a search was a lawful probation search. While Hajicek concedes that the word "finding" does not always refer to historical facts, Hajicek argues that in both cases the court implied that the determination of whether a search is a police or probation search is a question of historical fact because the court did not apply a de novo standard of review.

¶ 21. We reject this argument. The word "find" can refer to a historical fact or to a legal conclusion, as Hajicek concedes. However, Hajicek is incorrect that State v. Griffin and State v. Flakes implied that the probation search determination is a question of historical fact. Neither State v. Griffin nor State v. Flakes clearly delineates the proper standard of review to apply to the conclusion that a search is either a police or probation search.

¶ 22. Second, Hajicek argues that we should be persuaded by the decisions of the United States Court of Appeals for the Ninth Circuit. According to Hajicek, the Ninth Circuit has held that the determination of whether a search is a police or probation search is a question of fact subject to the clearly erroneous standard of review. Hajicek relies on two Ninth Circuit cases that state that the determination of whether a probation officer acted as a "stalking horse" for police is a "question of fact, reviewed for clear error." United States v. Richardson, 849 F.2d 439, 441 (9th Cir. 1988)(citing United States v. Jarrad, 754 F.2d 1451, 1454 (9th Cir. 1985)). A "stalking horse" is "[sjomething used to cover one's true purpose; a decoy." The American Heritage Dictionary 1751 (3d ed. 1992). In the context of determining whether a search is a police or probation search, a "stalking horse" is a probation officer who uses his or her authority "to help the police evade the [F]ourth [Ajmendment's warrant requirement." United States v. Harper, 928 F.2d 894, 897 (9th Cir. 1991).

¶ 23. We also reject this argument. As Hajicek concedes, Ninth Circuit precedent is not binding on this court. In addition, we decline to follow the Ninth Circuit's application of the clearly erroneous standard of review because both Ninth Circuit cases state that the "stalking horse" determination depends solely on the single fact of who initiates the search. Richardson, 849 F.2d at 441 (citing Jarrad, 754 F.2d at 1454). We apply de novo review because the determination of whether a search is a police or probation search requires a conclusion based on an analysis of all the facts surrounding the search.

¶ 24. Third, Hajicek argues that the determination of whether a search is a police or probation search is not a question of constitutional fact because there is no constitutional principle to apply. Hajicek relies on our decision in State v. McMorris, 213 Wis. 2d 156, 570 N.W.2d 384 (1997), to support the proposition that the two-step standard of review requires application of a uniform constitutional principle.

¶ 25. Our holding in the instant case is consistent with our holding in McMorris. In McMorris, we held that the determination of "whether an independent source exists for an in-court identification made after a lineup that violated an accused's Sixth Amendment right to counsel" is a question of constitutional fact that requires the two-step standard of review. 213 Wis. 2d at 165. To support our holding, we compared the issue of independent source for an in-court identification to the issue of suppression of evidence. McMorris, 213 Wis. 2d at 164-65. Likewise, we compare the police or probation search determination to the curtilage determination in Martwick.

¶ 26. In summary, we hold that the determination of whether a search is a police or probation search is a question of constitutional fact that requires application of a two-step standard of review.

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¶ 27. We now apply the two-step standard of review to the determination of whether the search of Hajicek's residence was a police or probation search. First, we review the circuit court's findings of historical fact under the clearly erroneous standard. Second, we review the circuit court's conclusion that the search was a police search de novo.

¶ 28. We apply the clearly erroneous standard to the circuit court's findings of historical fact. The five findings of historical fact that the circuit court relied on to conclude that the search was a police search are not clearly erroneous. There is support in the record for each of the five findings which are: (1) the law enforcement officers dictated the timing of the search because Hammes delayed the search at the request of law enforcement; (2) the law enforcement officers that participated in the search were the same officers that failed to obtain a search warrant during their investigation of Hajicek; (3) the law enforcement officers notified the assistant district attorney before the search; (4) the law enforcement officers and the probation officers both failed to document their communications regarding the delay of Hammes' search; and (5) Hammes did not carry out the objectives of probation supervision during the delay of the search, since he failed to supervise Hajicek and to order a urinalysis for him. The circuit court relied on these five findings of historical fact to conclude that the search of Hajicek's residence was a police search.

¶ 29. We apply de novo review to the circuit court's conclusion that the search of Hajicek's residence was a police search. We do not agree with the circuit court's conclusion that the search was a police search. We rely on the circuit court's entire findings of historical fact regarding the events during the search of Hajicek's residence to conclude that the search was a probation search. Before Hammes and Johnson proceeded with the search, Papenfuss and Sielehr secured the residence by walking through the house. As Ham-mes and Johnson conducted the search of Hajicek's residence, Sielehr and Thelen watched Hajicek. Ham-mes conducted the search that resulted in the discovery of Percocet in Hajicek's bedroom and marijuana in Hajicek's garage. The entire findings of historical fact regarding the events during the search demonstrate that probation officers Hammes and Johnson conducted the search and law enforcement officers Papenfuss, Sielehr, and Thelen were present only for protective purposes. Thus, the entire findings of historical fact regarding the events during the search of Hajicek's residence support the conclusion that the search was a probation search.

¶ 30. In addition, our conclusion that the search of Hajicek's residence was a probation search is consistent with Wisconsin precedent. In State v. Griffin, we held that a search was a probation search because the probation officers conducted the search while the police were present only for protection purposes. 131 Wis. 2d 41, 62-63, 388 N.W.2d 535 (1986), aff'd, Griffin v. Wisconsin, 483 U.S. 868 (1987). The probation officers searched Griffin's kitchen, bedroom, and living room while the police officers stayed with Griffin. Id. at 56-57. In the instant case, the probation officers searched Hajicek's bedroom and garage while the law enforcement officers stayed with Hajicek.

¶ 31. Hajicek argues that the circuit court was correct in concluding that the search was a police search based on the five findings of historical fact mentioned above. The circuit court determined that these five findings of historical fact indicate that law enforcement objectives took precedence over probation objectives, turning the search of Hajicek's residence into a police search.

¶ 32. We do not find this argument persuasive. The five findings of historical fact relied on by the circuit court do not necessarily lead to the conclusion that the search of Hajicek's residence was a police search. The five findings of historical fact clearly indicate that probation officer Hammes was cooperating with the law enforcement investigation of Hajicek, but cooperation does not change a probation search into a police search.

¶ 33. Cooperation with law enforcement for the purpose of preventing crime is a specific goal of probation supervision. Wis. Admin. Code § DOC 328.01(5) (June, 1999). The regulations in the Wisconsin Administrative Code provide that a specific goal of probation supervision is "[t]o cooperate with other public and private agencies in activities for the purpose of prevention of crime and to provide alternatives to institutionalization." Id. In addition, Wisconsin precedent supports probation searches based on cooperation between probation officers and law enforcement. For example, the fact that the police provide the information that leads to a probation search does not make the probation search unlawful. State v. Griffin, 131 Wis. 2d at 57; State v. Flakes, 140 Wis. 2d at 427. Therefore, Hammes' cooperation with law enforcement does not change the search of Hajicek's residence from a probation search to a police search.

¶ 34. In summary, the search of Hajicek's residence was a probation search. We reach this conclusion because the probation officers conducted the search while the law enforcement officers were present at the search only for protective purposes, consistent with our holding in State v. Griffin.

IV

¶ 35. We now turn to the question of whether the search of Hajicek's residence was reasonable. All searches and seizures, including probation searches, must be reasonable. U.S. Const, amend. IV; Wis. Const, art. I, § 11. A reasonable search is one supported by a warrant or by probable cause. Griffin v. Wisconsin, 483 U.S. 868, 873 (1987). A warrantless search is unreasonable unless the search falls under a lawful exception. State v. Griffin, 131 Wis. 2d 41, 50, 388 N.W.2d 535 (1986)(citing Cady v. Dombrowski, 413 U.S. 433, 439 (1973)), aff'd, Griffin v. Wisconsin, 483 U.S. 868 (1987). The state bears the burden of proving that an exception applies to any given search. State v. Pallone, 2000 WI 77, ¶ 29, 236 Wis. 2d 162, 613 N.W.2d 568.

¶ 36. There is an exception to the warrant requirement for probation searches. Griffin v. Wisconsin, 483 U.S. 868, 875-76 (1987). An exception to the warrant requirement exists when " 'special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.' " Id. at 873 (quoting New Jersey v. T.L.O., 469 U.S. 325, 351 (1985)(Blackmun, J., concurring)). In Griffin v. Wisconsin, the United States Supreme Court upheld the constitutionality of a warrantless search of a probationer's home by probation officers. 483 U.S. at 872. The special need justifying warrantless probation searches is the need to supervise probationers. Id. at 875. By supervising a probationer, the probation officer guarantees that the probationer observes the restrictions placed upon the probationer's liberty during the probation. Id. "These restrictions are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer's being at large." Id. The special need for ensuring that probationers are rehabilitated and that the public is protected creates an exception to the warrant or probable cause requirement for reasonable searches. Id. at 875-76.

¶ 37. The exception to the warrant requirement for probation searches provides that a probation officer may search a probationer's residence if the probation officer has reasonable grounds to believe that a probationer has contraband. State v. Griffin, 131 Wis. 2d 41, 60, 388 N.W.2d 535 (1986), aff'd, Griffin v. Wisconsin, 483 U.S. 868 (1987). In State v. Griffin, we held that a probation officer had reasonable grounds to search Griffin's residence based on the Wisconsin Administrative Code regulations for the supervision of probationers. 131 Wis. 2d at 61-62. The regulations in the Wisconsin Administrative Code set forth a list of factors to be considered in the determination of whether there are reasonable grounds for a probation search. Wis. Admin. Code § DOC 328.21(7) (June, 1999).

¶ 38. In State v. Griffin, the probation officer had reasonable grounds to search Griffin's residence because the probation officer received information, provided by an anonymous informant, that Griffin may have contraband in his apartment. Id. at 63-64 (citing Wis. Admin. Code § HSS 328.21(6)(b)). In addition, the probation officer had reasonable grounds to search Griffin's residence because the informant was a Beloit detective who had no reason to provide false information. Id. at 64 (citing Wis. Admin. Code § HSS 328.21(6)(c) and (d)). Therefore, we held that reliable information that a probationer possesses contraband provided the reasonable grounds for a lawful probation search. Id.

¶ 39. In State v. Flakes, 140 Wis. 2d 411, 427-28, 410 N.W.2d 614 (Ct. App. 1987), the court of appeals held that a probation officer had reasonable grounds to search Flakes' residence based on the factors provided in the Wisconsin Administrative Code. The court held that a probation officer had reasonable grounds to conduct a probation search based on information provided by a police officer. Id. (citing Wis. Admin. Code § HSS 328.21(6)). The police informed Flakes' probation officer about an arrest for marijuana delivery, about their suspicion that Flakes had more marijuana in his apartment, and that Flakes had refused consent for the police to search his apartment. Id. at 427. The court held that detailed information from a reliable source about Flakes' activities, combined with the probation officer's knowledge of Flakes' history, provided the reasonable grounds for a probation search of Flakes' apartment. Id. at 427-28 (citing Wis. Admin. Code § HSS 328.21(6)(b), (c), (d), (e) and (g)).

¶ 40. In the instant case, probation officer Ham-mes had reasonable grounds for a probation search of Hajicek's residence based on the factors provided in the Wisconsin Administrative Code. Hammes searched Hajicek's residence based on information provided by an informant. Wis. Admin. Code § DOC 328.21(7)(b) (June, 1999). Hammes received an anonymous tip that Hajicek was involved in drug use, drug trafficking, or both. Hammes searched Hajicek's residence because the information contained in the anonymous tip was reliable and the informant was reliable. Wis. Admin. Code § DOC 328.21(7)(c) and (d) (June, 1999). The La Crosse County Sheriff s Department and the DNE verified the information contained in the anonymous tip by telling Hammes that the information was similar to information that they had from their investigation of Hajicek. Following the application of the factors for reasonable grounds applied in State v. Griffin and State v. Flakes, we conclude that reliable information from a reliable source that a probationer possesses contraband provides reasonable grounds for a probation search of the probationer's residence.

¶ 41. There is nothing in the record to persuade us that Hammes did not have reasonable grounds for the probation search of Hajicek's residence. The fact that Hammes delayed his search at the request of law enforcement does not affect the reasonable grounds for the search. There is no requirement in the regulations in the Wisconsin Administrative Code that a probation officer must search a probationer's residence as soon as the probation officer has the reasonable grounds to do so. The state has satisfied its burden in this case.

V

¶ 42. In conclusion, we hold that the determination of whether a search is a police or probation search is a question of constitutional fact reviewed with a two-step process. First, an appellate court reviews the circuit court's findings of historical fact under the clearly erroneous standard. Second, an appellate court reviews the circuit court's finding of constitutional fact de novo. We apply the two-step standard of review and hold that the search of Hajicek's residence was a probation search. We further hold that the probation search of Hajicek's residence was reasonable. Accordingly, we reverse the court of appeals decision that affirmed the circuit court's order granting Hajicek's motion to suppress the evidence obtained in the search.

By the Court. — The decision of the court of appeals is reversed and the case is remanded to the circuit court.

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 43. (dissenting). I agree with the circuit court and court of appeals and dissent on three grounds.

¶ 44. First, I agree with the court of appeals that the circuit court's determination that the search of the defendant's home was a police search should be reviewed under the clearly erroneous standard. The majority opinion's adoption of the de novo standard contravenes Wisconsin and federal law.

¶ 45. Second, whatever the standard of review, the search in this case was that of law enforcement. The search of the defendant's home without a warrant violated the Fourth Amendment.

¶ 46. Third, even if it was a probation search, the search of the defendant's home without a warrant violated the Fourth Amendment under the circumstances of this case.

¶ 47. I would affirm the court of appeals, which affirmed the circuit court's suppression order.

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¶ 48. Under existing Wisconsin case law, as well as the case law from other jurisdictions, the question of whether a probation officer acts as a stalking horse for law enforcement officers should be reviewed under the clearly erroneous standard.

¶ 49. First, the majority opinion's error in concluding that the question of whether a search is a police or probation search should be reviewed de novo is based on its erroneous characterization of the question before us as one of constitutional fact.

¶ 50. The majority opinion explains that a question of constitutional fact has been defined as one whose determination is decisive of constitutional rights. Majority op. at ¶ 14. I agree that this is the definition of constitutional fact.

¶ 51. Unfortunately the majority opinion does not apply this definition in the present case. The question of whether a search is a police or probation search is not decisive of constitutional rights in this case. As the court of appeals explained and as the majority opinion recognizes, the ultimate constitutional issue, that is, the constitutional fact in this case, is whether the search (whether by a probation officer or a police officer) was reasonable and conformed to the Fourth Amendment. That ultimate constitutional fact, the reasonableness of the search, should be decided de novo by this court after the relevant facts are determined by the circuit court. Whether the search is by a probation officer or police officer is not a decisive constitutional determination of reasonableness; therefore, it should be treated as an historical fact to be reviewed under the clearly erroneous, standard. As is evident in the majority opinion, the majority appears to have decided that it wishes to exercise de novo review and then labels the issue as one of constitutional fact.

¶ 52. Second, the majority opinion blithely ignores this court's most recently adopted analytical framework for determining the appropriate standard of review of constitutional issues. In State v. Byrge, 2000 WI 101, 237 Wis. 2d 197, 614 N.W.2d 477, this court explained that the difference between historical facts, constitutional facts, and mixed questions of fact and law is "fuzzy" at best. Thus the Byrge court decided that the standard of review of a constitutional issue should depend on the court's determination of which "judicial actor is better positioned than another to decide a matter." The "best institutional actor" analysis presénts a workable framework for determining the standard of review even when the issue (such as competency to stand trial) is unquestionably decisive of constitutional rights. The majority opinion ought to forthrightly adopt and apply the analysis used in Byrge. Instead, the majority opinion, without citing Byrge, much less forthrightly explaining what it is doing, applies the Byrge analysis in a back-handed way, justifying the creation of the new question of constitutional fact by noting that "independent appellate review" is important because it "provides guidance to litigants, lawyers, and trial courts." Majority op. at ¶ 18._

¶ 53. In Byrge the court applied the clearly erroneous standard of review to the constitutional determination of whether a defendant was competent to stand trial because "the decision pivots on factors only a trial court can appraise." Byrge, 237 Wis. 2d at ¶ 44. The circuit court's ability to observe the credibility and demeanor of the witnesses, stated the Byrge court, made the circuit court "the judicial actor best positioned to apply a legal standard to the facts." Byrge, 237 Wis. 2d at ¶ 44; see also ¶ 45.

¶ 54. I would apply the Byrge institutional analysis to the question at issue in this case. Whether the search of the defendant's home was a probation or a police search presents a fact-driven inquiry. Indeed, the particular circumstances of this case highlight the circuit court's essential role as fact-finder. Neither the probation officer nor the law enforcement officers kept any record of their communications regarding the defendant, leaving witness testimony as the only means of assessing the basis for this search.

¶ 55. The circuit court was in the best position to evaluate the testimony, weigh the witnesses' credibility, and determine whether this search was driven by law enforcement or probation objectives. By opting for de novo review, the majority opinion has rejected the circuit court's credibility assessments and weighing of the evidence.

¶ 56. Third, the majority's break from Byrge is even more surprising in light of the State's and majority opinion's failure to identify a single case in any jurisdiction that has treated the determination of whether a search is a probation or police search as anything other than a finding of fact subject to review under the clearly erroneous standard.

¶ 57. As the majority opinion recognizes, Wisconsin case law can be interpreted as treating this question as one of fact. Majority op. at ¶ 21.

¶ 58. Furthermore, several federal courts have applied the clearly erroneous standard of review. The majority opinion declines to follow the Ninth Circuit's standard of review, as articulated in United States v. Richardson, 849 F.2d 439 (9th Cir. 1988), and United States v. Jarrad, 754 F.2d 1451 (9th Cir. 1985). The majority contends that these cases rest on the sole issue of whether the probation officer initiated the search, whereas the majority believes a broader factual analysis is necessary. Majority op. at ¶ 23.

¶ 59. More recent Ninth Circuit cases involving probation versus police searches apply the majority opinion's broader factual analysis. Nonetheless, these cases still treat the trial court's conclusion as a question of historical fact. Other federal courts have followed the Ninth Circuit's lead. Several state courts have also followed the Ninth Circuit.

¶ 60. The great weight of persuasive authority belies the majority's statement, majority op. at ¶ 18, that its conclusion is consistent with federal and Wisconsin precedent. Rather, it appears that the majority opinion stands alone in creating a question of constitutional fact where none existed before.

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¶ 61. Whether a clearly erroneous standard or a de novo standard of review is applied, the circuit court correctly ruled that the probation officer "changed hats" and was serving to advance law enforcement goals, rather than probation goals.

¶ 62. Law enforcement officers needed probable cause and a warrant to search the defendant's home. They had neither. The search therefore violated the Fourth Amendment.

¶ 63. The majority opinion promises guidance for how probation officers, law enforcement officers, lawyers, and courts can distinguish between a probation and police search. Majority op. at ¶ 18. The guidance appears in two short conclusory paragraphs, paragraphs 32 and 34, as follows:

The five findings of historical fact clearly indicate that probation officer Hammes was cooperating with the law enforcement investigation of Hajicek. .. .
[Cooperation does not change a probation search into a police search. . . .
[T]he search of Hajicek's residence was a probation search. . .because the probation officers conducted the search while the law enforcement officers were present at the search only for protective purposes.

¶ 64. Does the majority opinion provide guidance about what constitutes acceptable "cooperation"? Does the majority opinion conclude that cooperation never changes a probation search into a police search? Clearly that cannot be so. I agree that cooperation does not of itself turn a probation search into a police search. Common sense tells us, however, that at some point cooperation may transform the probation officer into a stalking horse. At some point, the probation officer has, as the circuit court stated, "changed hats" and is serving a law enforcement rather than probationary function. Yet the opinion does not intimate that there are any limits on cooperation.

¶ 65. Indeed, the word "cooperation" does not appropriately describe the situation here. I agree with the circuit court that the probation officer "changed hats" and was serving a law enforcement rather than probationary function. The probation officer allowed law enforcement to dictate his operations. The probation officer agreed to allow law enforcement officers to interfere with ordinary probationary supervision and to delay a probationary search for more than three weeks. Law enforcement officers were not able to obtain a search warrant because their information was not good enough and then the probation officer worked with these same officers on a "probation" search looking for the same evidence as the aborted search warrant would have sought.

¶ 66. Does the majority opinion provide guidance about how to distinguish a probation search from a law enforcement search? Does the majority opinion conclude that so long as the probation officers, not the police officers, physically conduct the search with the law enforcement officers present for protective purposes, the search is a probation search? Clearly that cannot be so. Such a rule would put form over substance and make a mockery of the stalking horse doctrine. But that's what the opinion appears to say.

¶ 67. Guidance? I think not. Puzzlement? I think so. The question the readers should ask, after reading the majority opinion, is whether they can hypothesize any realistic fact situation in which a probation officer who performs a search under the protection of the very law enforcement officers with whom they have been "cooperating" would be transformed into a stalking horse. I fear that no such situation exists.

¶ 68. When the probation officer is serving law enforcement objectives, as is the case here, a search

warrant is necessary under the Fourth Amendment. I would therefore affirm the circuit court's suppression order.

I — I i — I j.

¶ 69. Even viewing the search as a probation search, I conclude that the warrantless search of the defendant's home was unreasonable and violated the Fourth Amendment. The State bears the burden of persuasion in this case on the reasonableness of the search without a warrant.

¶ 70. The majority opinion's conclusion that this probation search was reasonable relies on the U.S. Supreme Court's decision in Griffin v. Wisconsin, 483 U.S. 868 (1987), as well as the agency regulations regarding probation searches. Reliance on both of these authorities is misplaced.

¶ 71. In Griffin, the Supreme Court articulated two reasons for declining to require probation officers to obtain a search warrant. Neither of these reasons applies to the facts of this case.

¶ 72. First, the Griffin Court stated that "[a] warrant requirement would interfere to an appreciable degree with the probation system, setting up a magistrate rather than the probation officer as the judge of how close a supervision the probationer requires." Griffin, 483 U.S. at 876. Here, however, law enforcement officers interfered with the probation officer's plan to search the defendant's home immediately. Moreover, the probation officer opted to forgo all supervisory activities in order to avoid alerting the defendant to the law enforcement investigation. The need to avoid interference with probationary objectives was not present in this case because law enforcement had already interfered. Therefore Griffin s narrow exception to the warrant requirement does not apply.

¶ 73. Second, the Griffin Court stated that "the delay inherent in seeking a warrant would make it more difficult for probation officers to respond quickly to evidence of misconduct. . .and would reduce the deterrent effect that the possibility of expeditious searches would otherwise create. . .." Griffin, 483 U.S. at 876 (citations omitted). Yet here, the probation officer allowed law enforcement to delay his intended search for more than three weeks, three weeks during which the probation officer deliberately avoided taking any action whatsoever to supervise the defendant in a manner consistent with his probationary objectives. The need to avoid delay in responding to evidence of a probationer's misconduct was not present in this case. Griffin s narrow exception to the warrant requirement does not apply.

¶ 74. The majority does not explain how the probation officer's failure to take any supervisory action whatsoever for almost a month is consistent with probationary objectives, objectives which the Griffin Court described as "protecting the public interest" and having in mind "the welfare of the probationer (who in the regulations is called a client)." Griffin, 483 U.S. at 876. When the probation officer's actions are fundamentally inconsistent with the important probationary objective of active supervision, Griffin's narrow exception allowing warrantless searches that advance probationary objectives no longer applies.

¶ 75. The majority opinion also relies on the probation officer's compliance with the Wisconsin Administrative Code. This reliance is misplaced as well. The majority contends that the probation officer followed Wis. Admin. Code § 328.21(7)(b) in searching Hajicek's home. Majority op. at ¶ 40. Further, the majority has found that the more than three-week delay in searching the defendant's home did not violate any provision of the Wisconsin Administrative Code. Majority op. at ¶ 41.

¶ 76. The majority opinion overlooks the fact that the probation officer violated Wis. Admin. Code § 328.30, which requires probation officers to document all of their communications regarding a case, including "maintain[ing] a chronological log of all case related contacts." Here, the defendant's probation officer documented none of his communications with law enforcement officials. When asked during the suppression hearing why he failed to document any of his communications, in violation of Wis. Admin. Code § 328.30, the probation officer answered simply, "I just didn't." The majority opinion's conclusion also ignores the uncontradicted testimony of Professor Walter Dickey, the former head of the Department of Corrections and the drafter of the precursor of the applicable Wisconsin Administrative Code rules, regarding the violations that occurred in this case.

¶ 77. The probation officer's violations of administrative procedures further undermine the majority's conclusion that the officer was acting reasonably and in conformance with legitimate probation objectives when he searched the defendant's home without a warrant.

¶ 78. For the reasons set forth, I dissent.

¶ 79. I am authorized to state that Justices WILLIAM A. BABLITCH and ANN WALSH BRADLEY join this dissent.

      The five felony counts are as follows: (1) possession of narcotic controlled substance with intent to deliver while within 1000 feet of certain places as drug repeater in violation of Wis. Stat. § 961.41(lm)(a); (2) possession of marijuana with intent to deliver within 1000 feet of certain places as drug repeater in violation of Wis. Stat. § 961.41(lm)(h)3; (3) possession of cocaine within 1000 feet of certain places as drug repeater in violation of Wis. Stat. § 961.41(3g)(c); (4) possession of a Schedule II narcotic controlled substance while within 1000 feet of certain places as drug repeater in violation of Wis. Stat. § 961.41(3g)(a)l; and (5) possession of a Schedule I narcotic controlled substance while within 1000 feet of certain places as drug repeater in violation of Wis. Stat. § 961.41(3g)(a)l.
      The misdemeanor charge was for possession of Schedule IV controlled substance while within 1000 feet of certain places as an habitual criminal in violation of Wis. Stat. § 961.41(3g)(b).

       In United States v. Jarrad, the court used the phrase "clearly erroneous" to describe the standard of review. 754 F.2d 1451, 1454 (9th Cir. 1985). In United States v. Richardson, the court cited to Jarrad for the standard of review but used the phrase "clear error." 849 F.2d 439, 441 (9th Cir. 1988).

       The phrase "clearly erroneous" is used to describe the standard of review for findings of fact in Wis. Stat. § 805.17(2).

       In Ornelas v. United States, the Court stated that" 'clear error' is a term of art derived from Rule 52(a) of the Federal Rules of Civil Procedure, and applies when reviewing questions of fact." 517 U.S. 690, 695 n.3 (1996).

       In State v. Phillips, we provided several examples of constitutional challenges that appellate courts review independently of a trial court's conclusion. 218 Wis. 2d 180, 190, 577 N.W.2d 794 (1998).

       The "stalking horse" determination is the same as the determination of whether a search is a police or probation search. If a probation officer is a "stalking horse" for police, then the search is a police search.

       In State v. McMorris we stated:
      [t]his court has not previously discussed the applicable standard of review in determining whether an independent source exists for an in-court identification made after a lineup that violated an accused's Sixth Amendment right to counsel. The court has, however, considered the standard of review applicable to an analogous issue of attenuation in the Fourth Amendment context. In State v. Anderson, 165 Wis. 2d 441, 447-48, 477 N.W.2d 277 (1991), this court characterized as a constitutional fact the question whether evidence should be suppressed as the fruit of a prior illegal search or whether the evidence was sufficiently attenuated so as to he purged of the taint.
      213 Wis. 2d 156,164-65, 570 N.W.2d 384 (1997).

       Both the police or probation search determination and the curtilage determination are questions of constitutional fact because both are decisive of constitutional rights. The curtilage determination is decisive of constitutional rights because "the area in question is so intimately tied to the home itself that it should be placed under the home's 'umbrella' of Fourth Amendment protection." United States v. Dunn, 480 U.S. 294, 301 (1987). Likewise, the police or probation search determination is decisive of constitutional rights because the nature of the search determines the scope of Fourth Amendment protection. A police search must be based on a warrant issued upon probable cause or an exception to the warrant requirement, while a probation search must be based on reasonable grounds.

       In addition, the less than four-week delay of the search is consistent with the terms of Hajicek's probation supervision status. At the time of the search, Hajicek was on probation with minimum supervision. Minimum supervision requires only that the probation officer meet with the probationer once every 90 days. Wis. Admin. Code § DOC 328.03(22) (June, 1999).

       The Fourth Amendment to the United States Constitution states:
      [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
      Article I, Section 11 of the Wisconsin Constitution states:
      [t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.
      Both the United States Constitution and the Wisconsin Constitution guarantee the right to be free from unreasonable searches and seizures. We ordinarily interpret Article I, Section 11 of the Wisconsin Constitution in accordance with the United States Supreme Court's interpretation of the Fourth Amendment. Phillips, 218 Wis. 2d at 195.

       The following factors are to be considered in the determination of whether a probation officer has reasonable grounds to conduct a probation search:
      (a) The observations of staff members, (b) Information provided by informants, (c) The reliability of the information provided by an informant. In evaluating the reliability of the information, the [probation officer] shall give attention to the detail, consistency and corroboration of the information provided by the informant, (d)
      The reliability of the informant. In evaluating the informant's reliability, attention shall be given to whether the informant has reason to supply inaccurate information, (e) The activity of the [probationer] that relates to whether the [probationer] might possess contraband or might have used or be under the influence of an intoxicating substance, (f) Information provided by the [probationer] that is relevant to whether the [probationer] has used, possesses or is under the influence of an intoxicating substance or possesses any other contraband, (g) The experience of a staff member with that [probationer] or in a similar circumstance, (h) Prior seizures of contraband from the [probationer], (i) The need to verify compliance with rules of supervision and state and federal law.
      Wis. Admin. Code § DOC 328.21(7).

       Chapter HSS 328 was renumbered Chapter DOC 328 in April, 1990. In Chapter HSS 328, the list of factors for reasonable grounds was set forth in subsection six. In Chapter DOC 328, the list of factors for reasonable grounds is set forth in subsection seven.

        State v. Byrge, 2000 WI 101, ¶ 39, 237 Wis. 2d 197, 614 N.W.2d 477. See also State v. Garfoot, 207 Wis. 2d 214, 234, 558 N.W.2d 626 (1997) (C.J. Abrahamson concurring) ("The standard for appellate review of an issue thus depends on a determination of whether an appellate court or a trial court is the more appropriate and competent forum to make the particular decision."); State v. McMorris, 213 Wis. 2d 156, 165-66, 570 N.W.2d 384 (1997) (treating the issue of independent source for in-court identification like the issue of purging evidence of the taint of illegal search as a constitutional fact; allowing independent review to enable appellate courts to flesh out the rule and provide guidance to litigants, lawyers, and trial and appellate courts and to provide uniformity in constitutional decision-making).

       For example, in United States v. Watts, 67 F.3d 790 (9th Cir. 1995), rev'd on other grounds, 519 U.S. 148 (1997), the court of appeals stated that ”[t]he appropriate inquiry is whether the probation officer used the probation search to help police evade the Fourth Amendment's usual warrant and probable cause requirements or whether the probation officer enlisted the police to assist his own legitimate objectives." Even with the broader fact inquiry, the standard of review remained clearly erroneous. Watts, 67 F.3d at 794.

       At least two other circuits have followed the Ninth Circuit in treating the question of probation versus police search as a question of fact reviewable under the clearly erroneous standard. See, e.g., United States v. Cardona, 903 F.2d 60, 65 (1st Cir. 1990) ("The law will not allow a parole officer to serve as a cat's paw for the police. . . .When and if the integrity of a challenged action is controverted, the dispute is determinable as a question of fact on a case-by-case basis."); United States v. McFarland, 116 F.3d 316, 318 (8th Cir. 1997) ("Parole and police officers may work together, however, provided the parole officer is pursuing parole-related objectives and is not merely a 'stalking horse' for the police. . . .In this case, the district court found [the probation officer] authorized the police to carry out the challenged searches to determine if McFarland was violating his parole. This factual finding is not clearly erroneous.") (citations omitted).

         See, e.g., State of Hawaii v. Proprios, 879 P.2d 1057, 1064 (Haw. 1994) ("Notwithstanding the existence of an objectively valid probationary purpose, we hold that a warrantless probationary search is unreasonable if it is conducted for a subjectively improper purpose. As indicated previously, whether a particular search is improper 'is a question of fact subject to the clearly erroneous standard of review.'"); State v. Cowans, 717 N.E. 2d 298, 307 (Ohio 1999) ("Based upon the testimony presented and the trial court's assessment of the credibility of the witnesses, the trial court made a factual finding that [the probation officer] was not acting as a stalking horse for the deputies. Instead, the court found, she 'had her own objectives in conducting the search.' We are bound by that finding unless the record contains insufficient evidence to support it."); Commonwealth v. Williams, 692 A.2d 1031, 1037 n.11 (Pa. 1997) ("[E]vidence should be suppressed if the parole agent switches hats and acts as a 'stalking horse' for the police by circumventing the requirement for a warrant. . . .Here, the suppression court explicitly found that the parole agent who conducted the search was not acting in such a capacity.. . .[N]o evidence in the record even remotely suggests that the trial court erred in reaching this conclusion.").

       The circuit court correctly concluded that "[allthough there may be facts and exigent circumstances in a different case which would justify a probation officer's decision not to supervise a client at the behest of law enforcement, this is not such a case."

       Majority op. at ¶32. The circuit court's findings upon which the majority opinion bases its legal determination that a probation search occurred are as follows: Law enforcement officers dictated the timing of the search, participated in the search, and notified the assistant district attorney before the search; the police officers and probation officer failed to document their communications with each other; the probation officer did not carry out the objectives of probation supervision and failed to supervise the probationer for more than three weeks during the delay of the search. Majority op. at ¶ 28.

       Majority op. at ¶ 32.

       Majority op. at ¶ 34.

       In most instances, in contrast to this case, law enforcement asks the probation officer to conduct a search.

       See circuit court order at 7 ("Although Hammes felt he had good cause to do a probation search, he did not do so at the behest of law enforcement.").


source: Caselaw Access Project

author: VERGERONT, J.

license: Public Domain

text:
    Tammy Turner and Ronald Turner, Plaintiffs-Appellants, v. Gene Dencker Buick-Pontiac, Inc., Gene Dencker and Carl Georgoff, Defendants, Blackhawk State Bank, Defendant-Respondent.
    Court of Appeals

      No. 99-3174.

      Submitted on briefs September 12, 2000.

    Decided November 16, 2000.

    2001 WI App 28
    (Also reported in 623 N.W.2d 151.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Carla O. Andres of Andres Law Office, LLC of Portage.
    On behalf of the defendant-respondent, the cause was submitted on the brief of R. Duane Harlow of Hayes & Heiber, LLP of Beloit.
    On behalf of Wisconsin Bankers Association, a non-party brief was filed by John E. Knight, James E. Bartzen and Kirsten E. Spira of Boardman, Suhr, Curry & Field LLP of Madison.
    Before Vergeront and Deininger, JJ., and William Eich, Reserve Judge.
   VERGERONT, J.

¶ 1. Tammy and Ronald Turner appeal the circuit court's judgment dismissing their claim that Blackhawk State Bank violated WlS. STAT. § 427.104(l)(f) (1997-98) by disclosing to a credit bureau information concerning a debt of the Turners that was known to the Bank to be reasonably disputed without disclosing the fact of the dispute. The court concluded the Bank had satisfied its obligation under the statute by informing the credit bureau initially by telephone that the debt was disputed, even though the Bank thereafter sent to the credit bureau a monthly report of the increasing debt without an indication the debt was disputed. We conclude that each monthly-report to the credit bureau of the debt was a disclosure of the existence of a debt within the meaning of § 427.104(l)(f), and the Bank violated this subsection by not disclosing with each report that the debt was disputed. We therefore reverse and remand.

BACKGROUND

¶ 2. The debt at the center of this dispute was a loan the Turners obtained to finance the purchase of an automobile from Gene Dencker Buick-Pontiac, Inc. The loan was assigned to the Bank. During the following months, a series of problems arose with the car, leading the Turners to suspend payment. The Turners sued both Gene Dencker and the Bank, but their claim against Gene Dencker was addressed in a separate trial and is not relevant to this appeal. The Turners' claim against the Bank for a violation of WlS. STAT. § 427.104(l)(f) was tried to the court, and the evidence was as follows.

¶ 3. The Turners notified the Bank of their dispute with Gene Dencker. The Bank contacted both the Turners and Gene Dencker and determined the Turners' dispute of the debt was reasonable.

¶ 4. At the time relevant to this dispute, the Bank provided debt information to the Credit Bureau of Madison by means of monthly electronic tape trans-mittals. The information the credit bureau received was in turn transmitted to another entity that supplied the information to vendors nationwide. The information transmitted each month to the credit bureau on the electronic tape replaced the information contained in the previous month's transmission for that particular debt. The Bank's electronic tape system did not allow certain types of information to be included in the transmission. Although several "keyword changes" were available in the system for alteration of specific information, there were none to indicate that a debt was disputed. The Bank decided not to incur the additional expense required to mark a dispute on an account in the electronic tape system.

¶ 5. The credit bureau had the capacity to input a code on a debt for which it had received an electronic tape transmittal from the Bank to show the debt was disputed, but, unless the credit bureau then manually froze that account, the next monthly transmittal would override and replace the existing information on the debt. Thus, if the next transmittal did not indicate the debt was disputed, the credit bureau files would no longer contain the information that the debt was disputed. The credit bureau normally does not freeze an account unless the creditor requests it.

¶ 6. The Bank's practice was to telephone the credit bureau directly to inform them when a debt was reasonably disputed, and ask it to indicate that information in the credit bureau's file. It was not the Bank's practice to request in writing that the credit bureau do this nor to do any follow-up to its request. Consistent with this practice, Ed Hansen, a representative of the Bank, testified that he called the credit bureau in November 1997 and asked that the credit bureau place a dispute code on the Turners' account for this debt. Although the credit bureau coded the Turners' credit file as discussed in response to Hansen's call, the tape the Bank transmitted to the credit bureau the next month overrode that code: it replaced all the information about the Turners' debt, including the code showing it was disputed, with new information on the debt, which did not include the information that the debt was disputed. The result was that after November the credit bureau's information on the Turners' debt, and thus, the information the credit bureau transmitted to others, did not indicate there was a reasonable dispute over the Turners' debt. Instead, each month's report carried with it mounting delinquency charges and an indication that the payments were an additional month past due.

¶ 7. Hansen testified it was his understanding that the information on the disputed status of the Turners' debt, which he conveyed to the credit bureau in the November 1997 phone call, would be permanently contained in the Turners' account with the credit bureau until he called to ask that it be changed. He did not specifically request the designation of disputed status be permanent because he assumed it would be. He also testified that the credit bureau employee with whom he spoke did not tell him a change would have to be made in the tape sent to the credit bureau to permanently reflect the debt was disputed, and he did not tell the employee the Bank's system could not do that. Nor did the employee tell him, he testified, that the Bank could ask the credit bureau to freeze the Turners' account.

¶ 8. Clara McFall testified she was the credit bureau employee with whom Hansen spoke in November 1997 about the Turners' account. She testified that her normal procedure, when a person asks that a particular debt be indicated as disputed, is to explain that the person has to ensure the same change is made in the following months unless the credit bureau manually freezes the account so subsequent tapes will not change the designation of the debt as disputed. At trial she testified she could not recall whether she told Hansen this; however, in her deposition testimony, read at trial, she stated she had told Hansen the Bank had to correct its tape information and that the Bank had the option of freezing the account. It is not disputed that Hansen did not elect to have the Turners' account frozen.

¶ 9. After Hansen's November 1997 telephone call, the Bank did not attempt to verify the debt was designated as disputed on a continuing basis. The Bank did not learn until August 1998 that this had not been done. At that time, the Turners' account with the credit bureau, based on the transmissions from the Bank, had a delinquency rating that indicated the account was four months or more past due.

¶ 10. The trial court found the Bank reasonably believed that the designation of disputed status would stay in the credit bureau records of the Turners' debt. The trial court concluded the Bank did not violate WlS. STAT. § 427.104(l)(f). The court construed the statute to "not require the bank repeatedly to look into what the credit reporting agency is doing with [the debt information it provides]." The court determined the Bank's actions were reasonable with respect to its treatment of the Turners' account and it was not required to use "extraordinary practices" to assure that the disputed status of a debt was being accurately recorded by the credit bureau.

DISCUSSION

¶ 11. The Bank agrees with the Turners that the issue is governed by WlS. STAT. ch. 427. The issue on appeal concerns the proper construction of WlS. STAT. § 427.104(l)(f), which provides:

Prohibited practices. (1) In attempting to collect an alleged debt arising from a consumer credit transaction or other consumer transaction, including a transaction primarily for an agricultural purpose, where there is an agreement to defer payment, a debt collector may not:
(f) Disclose or threaten to disclose information concerning the existence of a debt known to be reasonably disputed by the customer without disclosing the fact that the customer disputes the debt.

¶ 12. The Bank does not contend that it is not a "debt collector." It concedes the Turners' debt was reasonably disputed, it knew the debt was reasonably disputed, and, therefore, it was prohibited from disclosing information concerning the debt to the credit bureau without disclosing the fact that the Turners' disputed the debt. The Bank's position, with which the trial court agreed, is that, after its initial call to the credit bureau asking it to code the Turners' debt as disputed, it did not have an obligation to disclose the disputed status of the debt in the subsequent monthly reports to the credit bureau. Phrased in terms of the statutory language, the Bank contends that the subsequent monthly reports did not constitute "disclos[ing] information concerning the existence of [their] debt," because they had already disclosed the disputed nature of the debt to the credit union. In contrast, the Turners argue that each monthly report "disclose[d] information concerning the existence of [the] debt" and, therefore, the Bank was obligated to disclose in each report that the debt was reasonably disputed.

¶ 13. The construction of a statute in relation to a given set of facts presents a question of law, which we review de novo. Tahtinen v. MSI Ins. Co., 122 Wis. 2d 158, 166, 361 N.W.2d 673 (1985). If the facts are disputed, we accept the findings made by the trial court unless they are not clearly erroneous. See WlS. STAT. § 805.17(2). In this case, we accept as not clearly erroneous the trial court's implicit finding that the credit bureau employee did not tell Hansen the Bank had to make changes in the electronic tape it transmitted each month to reflect the disputed status of the debt on an ongoing basis, or that the Bank had the option of freezing the account. We also accepted the court's implicit finding that Hansen believed his request to the credit bureau was sufficient to permanently indicate in the Turners' file with the credit bureau that the debt was disputed. We therefore construe the statute in relation to these findings of disputed fact and to the undisputed facts.

¶ 14. Wisconsin Stat. § 427.104(l)(f) has not been interpreted by Wisconsin courts, and our research has uncovered no cases from other jurisdictions that construe similar statutory language. We therefore begin with the general principles of statutory construction, according to which our purpose is to discern the intent of the legislature. State v. Setagord, 211 Wis. 2d 397, 406, 565 N.W.2d 506 (1997). To discern legislative intent, we first consider the language of the statute. Id. If the language of the statute clearly and unambiguously sets forth the legislative intent, we apply that to the case at hand and do not look beyond the statutory language to ascertain its meaning. Id. A statute is ambiguous when it is capable of being understood in two or more different senses by reasonably well-informed persons. Id. If a statute is ambiguous, we look to the scope, history, context, subject matter, and object of the statute in order to ascertain legislative intent. Id.

¶ 15. We conclude that the constructions advanced by both parties are reasonable and the statute is therefore ambiguous. Since the parties have not presented us with any pertinent legislative history, we focus on the object of the statute.

¶ 16. Wisconsin Stat. §427.104 is part of the Debt Collection chapter of the Wisconsin Consumer Act. Wis. Stat. § 427.101. The legislature "clearly intended the Wisconsin Consumer Act to assist consumers, particularly those of limited means, in combating unfair business practices." Kett v. Cmty. Credit Plan, Inc., 228 Wis. 2d 1, 18, 596 N.W.2d 786 (1999). The express purposes are as follows:

The Wisconsin Consumer Act (Wis. STAT. chs. 421-427) is intended to protect consumers from "unfair, deceptive, false, misleading and unconscionable practices by merchants," Wis. STAT. § 421.102(2)(b), and "to permit and encourage the development of fair and economically sound consumer practices in consumer transactions," WlS. STAT. § 421.102(2)(c). The legislature also mandates that chapters 421 to 427 are to be "liberally construed and applied to promote their underlying purposes and policies." Wis. Stat. § 421.102(1).

Kett 228 Wis. 2d at 18. Another express purpose of the Wisconsin Consumer Act is to "coordinate the regulation of consumer credit transactions with the policies of the federal consumer credit protection act." WlS. STAT. § 421.102(2)(d).

¶ 17. Focusing more specifically on WlS. STAT. § 427.104(l)(f), the evident purpose of this subsection is to protect consumers from the adverse effects of a negative credit history of a debt, when the reason for non-payment is that the debt is reasonably disputed. If the Bank does not have an obligation to report the disputed status of a debt with each report of the debt, but only with the first report, then it is more likely to happen, as it did in this case, that creditors and vendors are receiving information about a debt without receiving the information that it is a disputed debt.

¶ 18. The Bank's primary objection to the Turners' construction is that, in the Bank's view, it places the burden on the Bank to monitor the conduct of the credit bureau. However, we do not agree with this characterization. The Bank knew the monthly reports it sent to the credit bureau did not state the debt was disputed. Indeed, the Bank had made a conscious choice, based on economic considerations, not to have the capability in its system to indicate on the monthly transmissions that a debt was disputed. It also knew that each monthly transmission on a particular debt replaced the information from the previous transmission. The Bank did not know its monthly transmissions would override, and, thus erase, the credit bureau's coding that the debt was disputed. Rather, the Bank assumed it would not, although there is no testimony that it was told this or inquired about this. Hansen acknowledged he did not tell the credit bureau that he wanted the disputed code to be permanently contained in the Turners' account because he assumed it would be. But, again, there is no testimony that anyone from the credit bureau told him the credit bureau's file would continue to indicate the debt was disputed even though the Bank sent monthly reports on the debt that did not indicate it was disputed. In short, the Turners' construction does not place the burden on the” Bank to monitor the credit bureau's conduct; rather, it places the burden on the Bank to make sure each report it sends to the credit bureau on a disputed debt indicates that the debt is disputed.

¶ 19. Along the same lines, the Bank argues that it was the credit bureau's responsibility, not the Bank's, if the credit bureau released information on the Turners' debt without indicating the debt was disputed. The Bank asserts the Turners have recourse against the credit bureau under the Fair Credit Reporting Act, 15 U.S.C. § 1681 (1997), and should look to the credit bureau, not to the Bank, for a remedy.

¶ 20. However, the credit bureau's obligations under the Fair Credit Reporting Act do not lessen the Bank's obligations under WlS. STAT. § 427.104(l)(f). Under the federal act, credit bureaus are required to "adopt reasonable procedures . . . with regard to the confidentiality, accuracy, relevancy, and proper utilization of [consumer credit] information. . . ." 15 U.S.C. § 1681(b). They must verify adverse credit information when preparing a consumer report, unless the adverse information was received within the three-month period preceding the prepared report. 15 U.S.C. § 16811. Credit bureaus may be independently sued for negligent failure to comply with these requirements. See 15 U.S.C. § 1681o; Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994). Thus, the obligations of the credit bureau under the federal act are independent of the obligations of the Bank under §427.104(1)©.

¶ 21. We need not decide whether the credit bureau violated its statutory obligations because we are not presented with an "either or" proposition as the Bank suggests. A creditor, when acting as a debt collector and transmitting information to a credit bureau concerning the existence of a debt known to be reasonably disputed, must comply with WlS. STAT. § 427.104(l)(f), whether or not the credit bureau fulfills its statutory obligations with respect to the information it receives. By the same token, the fact that the credit bureau may not have in place reasonable procedures concerning the accuracy of the information on the Turners' debt it received from the Bank in the subsequent monthly transmissions, or may not have verified the accuracy of the information it received as it was required to do, does not relieve the Bank of any obligation it has under § 427.104(l)(f). This, we conclude, is the approach that best fulfills one of the purposes of the Wisconsin Consumer Act — to "coordinate the regulation of consumer credit transactions with the policies of the federal consumer protection act." Wis. Stat. § 421.102(2)(d).

¶ 22. We therefore focus on the Bank's conduct rather than that of the credit bureau. Relying on Associates Fin. Servs. Co. v. Hornik, 114 Wis. 2d 163, 167, 336 N.W.2d 395 (Ct. App. 1983), the Bank contends that reasonableness is the standard, that its conduct met that standard, and the Turners' construction would impose an unreasonable burden on it. In Associates, we addressed the prohibited practice under WlS. Stat. § 427.104(1)(g) — communicating with the debtor in ways that "can reasonably be expected to threaten or harass the customer." Associates, 114 Wis. 2d at 168. We stated: "Creditors have a duty to act reasonably when collecting debts from their debtors, and in sec. 427.104 the legislature codifies rules describing the duty of care debt collectors owe to debtors." Id. at 167.

¶ 23. We agree that WlS. Stat. § 427.104(l)(f) should not be construed to impose an obligation on the Bank that is unreasonable. However, we do not agree with the Bank and the trial court that it is unreasonable to require the Bank to have a system in place, electronic or otherwise, that accurately reports the disputed status of a debt to credit bureaus. Nor do we agree that, if the Bank chooses a system that does not have this capability, it is unreasonable to require the Bank to do more than request the credit bureau to designate the debt as disputed, without further inquiry, without follow-up, and knowing the Bank was transmitting tapes each month that replaced the information transmitted to the credit bureau the preceding month.

¶ 24. Although we accept the court's implicit finding that the Bank believed its call to the credit bureau was sufficient to correct the fact that the Bank's system could not transmit the information that a debt was disputed on the electronic tapes that monthly transmitted the debt information, it does not necessarily follow that the Bank therefore satisfied its obligation under WlS. Stat. § 427.104(l)(f). As the Turners point out, Wis. Stat. § 425.301(3) provides a defense based on error in only limited circumstances:

Notwithstanding any other section of chs. 421 to 427, a customer shall not be entitled to recover specific penalties provided in s. 425.302(l)(a), 425.303(1), 425.304(1) or 425.305(1) if the person violating chs. 421 to 427 shows by a preponderance of the evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.

The Bank does not dispute that it has not made the showing required by § 425.301(3). We agree with the Turners that, based on the undisputed facts, the Bank did not maintain procedures reasonably adapted to avoid transmitting information about a reasonably disputed debt to the credit bureau without disclosing that the debt was disputed.

¶ 25. We conclude WlS. STAT. § 425.301(3) indicates the legislature's intent to limit consideration of the good faith error of a debt collector in violating WlS. STAT. §427.104 to the circumstances specified in § 425.301(3). If we take the Bank's good faith into account in deciding how to construe § 427.104(l)(f), we are, in effect, broadening the defense in § 425.301(3) beyond that which the legislature intended. We therefore decline to do so.

¶ 26. We are satisfied that the specific purpose of WlS. STAT. § 427.104(l)(f), and the more general purposes of the Wisconsin Consumer Act as a whole, are better effectuated if each transmission from the Bank to the credit bureau reporting a debt is considered a "disclosu[re] of information concerning the existence of the debt," carrying with it the obligation to disclose the disputed status of the debt, if the Bank knows the debt is reasonably disputed. Each transmission that contains information about a debt that is reasonably disputed without disclosing the disputed status of the debt has the potential to injure the consumer in the very ways this subsection was intended to prevent. It is reasonable to place on the debt collector the obligation to convey the disputed status with each report on the debt the debt collector transmits. If the debt collector chooses a system that cannot report the disputed status of a debt, it is reasonable to place on the debt collector the responsibility to see that the disputed status is nevertheless disclosed with each report on the debt, along with the attendant liability for failure to do so, subject to WlS. STAT. § 425.301(3) and other defenses, if any.

¶ 27. Applying the statute thus construed to the facts of this case, we conclude the Bank did violate WlS. STAT. § 427.104(l)(f). As we have already stated, we also conclude it does not have a defense under WlS. STAT. § 425.301(3). We therefore reverse and remand to the trial court for further proceedings consistent with this opinion.

By the Court. — Judgment reversed and remanded.

      A11 references to the Wisconsin Statutes are to the 1997 — 98 version unless otherwise noted.

       We do not summarize evidence on other claims against the Bank that are not involved in this appeal.

       The Wisconsin Bankers Association has submitted an amicus curiae brief. Because the Bank's brief and the amicus brief make the same arguments, we do not refer separately to the amicus brief.

      A11 references to the United States Code are to the 1997 edition unless otherwise noted.

       Alternatively, a debt collector could simply elect to cease reporting on the debt while it remains in a disputed status.