author: FINE, J. David L. SCHUDSON, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. David L. Munroe, Defendant-Appellant.
    Court of Appeals

      No. 00-0260-CR.

      Submitted on briefs February 6, 2001.

    Decided March 20, 2001.

    2001 WI App 104
    (Also reported in 630 N.W.2d 223.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Peter M. Koneazny, assistant state public defender of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Paul Lundsten, assistant attorney general, and James E. Doyle, attorney general.
    Before Fine, Schudson and Curley, JJ.
   FINE, J. David L.

¶ 1. Munroe appeals from a judgment of conviction entered on his guilty plea to possessing fewer than five hundred grams of tetrahydrocannabinol. See Wis. Stat. § 961.41(1m)(h)1. He claims that the trial court erred in not granting his motion to suppress. We reverse.

I.

¶ 2. At 7 a.m. on a Monday morning, two police officers employed by the City of Glendale knocked on the door of the motel room rented and occupied by Munroe. They were in uniform and they were armed. They were doing "hotel intradiction," which one of the officers testified involved checking hotels in the city for "anything illegal" — primarily drugs, but also guns and prostitution.

¶ 3. Shortly before knocking on Munroe's door, the officers checked the motel's register of guests and ascertained that Munroe had paid cash for his room and did not show a photo identification when he registered. A Glendale ordinance provided that every hotel in the city:

shall require identification of any guest, roomer or lodger paying in cash, at the time of registration, and in a valid and current format showing the person's name and date of birth, and may be, but is not limited to, a driver's license, state issued picture identification card, or such other form as will reasonably assure that the registrant is, in fact, the person under whose name such lodging, room or accommodation is, in fact, being procured.

Glendale, Wis. Code of Ordinances, § 11— 2—14(1)(a) (1994). The ordinance also made it illegal for any person to "procure .. . lodging in any .. . motel or hotel... through misrepresentation or production of false identification, or identification which misrepresents the identity of the person procuring . . . such lodging." § ll-2-14(e). As we have seen, the ordinance only requires that those paying cash present a sufficient identification that "will reasonably assure that the registrant is, in fact, the person under whose name such lodging, room or accommodation is, in fact, being procured." It does not require those paying cash to show a photo identification.

¶ 4. When one of the officers knocked on Mun-roe's motel-room door, Munroe answered. According to the officer's testimony at the suppression hearing, the officer asked Munroe if the officers could "come in and talk to him," and Munroe responded "yeah." The officer testified that Munroe then stepped back and "allowed me to enter the room." Although Munroe disputed this, the trial court believed the officer's testimony, and Munroe does not challenge this ruling on appeal.

¶ 5. Upon the officers' entry, they told Munroe, who was about to light up a cigarette, not to smoke and to sit on the bed. They did not then see anything "unusual" in the room. The officer who testified at the suppression hearing told the trial court:

I asked— I explained to Mr. Munroe that I was there to confirm his identification, explained that he needs to show photo ID when paying cash for a hotel room. He stated he didn't have a photo ID. He showed me a social security card and verbally identified himself. I asked him if I could search his room for anything illegal.

Munroe replied, according to the officer's testimony, that he would "rather not." The officer then continued . to question Munroe, and explained the officers' concern that the motel was a haven for illegal activity, and again asked if they could search the room. This time, according to the officer, Munroe said "okay, go ahead." The officers searched the entire room and found the marijuana in Munroe's backpack.

¶ 6. The officer testified that the "only reason" they went to Munroe's room was to check his identification, and that they had no information to connect him to any drug dealing. Munroe testified that although he agreed to the search when asked the second time, he said he did so because the officers indicated that if he did not agree they would bring over a drug-sniffing dog. The officer who testified at the suppression hearing denied this. The trial court indicated that it believed the officer but that it also believed that it was not important whether the officers threatened to bring over a drug-sniffing dog or not. The trial court denied Munroe's motion to suppress the marijuana.

II.

¶ 7. The lawfulness of searches and seizures of property is governed by the Fourth Amendment to the United States Constitution and Article I, section 11 of the Wisconsin Constitution, which have been construed congruently. State v. Phillips, 218 Wis. 2d 180, 195, 577 N.W.2d 794, 801 (1998). The protection afforded by these provisions extends to hotels and motels as well as to homes. United States v. Jeffers, 342 U.S. 48 (1951); State v. Bermudez, 221 Wis. 2d 338, 585 N.W.2d 628 (Ct. App. 1998). On our review, we give substantial deference to the trial court's findings of fact. Wis. Stat. Rule 805.17(2) (trial court's findings of fact will not be set aside on appeal unless they are "clearly erroneous"). Nevertheless, the legality of a search by law-enforcement personnel, including whether a person's "consent" for a warrantless search is voluntary, are matters that we review de novo. Phillips, 218 Wis. 2d at 191-195, 577 N.W.2d at 799-801.

¶ 8. Generally, a search for evidence is not valid unless law enforcement officers have a lawfully issued warrant. See U.S. Const. amend. IV; Wis. Const. art. I, § 11. One of the exceptions to the requirement that law-enforcement officers get a search warrant is consent to the search by someone able to give consent. State v. Herrmann, 2000 WI App 38, ¶ 19,233 Wis. 2d 135, 148, 608 N.W.2d 406, 412. Long ago, however, the United State Supreme Court recognized that the non-objected-to warrantless entry by law enforcement officers into "living quarters" is entry "demanded under color of office" and is thus "granted in submission to authority rather than as an understanding and intentional waiver of a constitutional right." Johnson v. United States, 333 U.S. 10, 13 (1948). In Johnson, officers smelled opium coming from a hotel room. Id., 333 U.S. at 12. They went to the room, knocked on the door, and announced themselves. Ibid. After a bit of a delay, a woman opened the door. Ibid. The lead officer told the woman that he wanted to talk to her " 'a little bit.'" Ibid. According to the officer, the woman then " 'stepped back acquiescently and admitted us.'" Ibid. The acquiescence in Johnson is similar to Munroe's acquiescence here; he let the officers into his room because they told him, in the words of the officer who testified, that they wanted to "confirm his identification."

¶ 9. The issue of whether Munroe's acquiescence to the officers' search made that search lawful requires a review of the principles material to when and under what circumstances law-enforcement officers may search for and seize evidence. As seen, there is a general requirement that law-enforcement officers have a warrant to search and seize. Both the Fourth Amendment and Article I, § 11, require that search warrants not only "particularly" describe the place to be searched, but also the "things to be seized." This requirement for particularity was a reaction by the Framers against the hated General Warrants and Writs of Assistance, which were used by the King's officers to search and seize at will. See Payton v. New York, 445 U.S. 573, 583-584 & n.21 (1980). Simply put, the Framers wanted to prohibit "general searches" by government agents. Maryland v. Garrison, 480 U.S. 79, 84 (1987) (describing this as the "manifest purpose" of the "particularity requirement"). Thus, where the search exceeds the warrant's description of either the place to be searched or the items to be seized, the evidence must be excluded. See id., 480 U.S. at 84-85 (" 'Just as probable cause to believe that a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase.'") (quoted source omitted). Accordingly, once officers recognize (or reasonably should recognize) that they are exceeding the scope of the warrant, they must stop. Id., 480 U.S. at 87-89; State v. Herrmann, 2000 WI App 38, ¶¶ 18, 20, 233 Wis. 2d 135, 147-149, 608 N.W.2d 406, 411-412. As noted, there was no warrant here, but similar principles apply because, as we have noted, the core value underlying the Fourth Amendment is that law-enforcement officers not be permitted to conduct wide-ranging, general searches.

¶ 10. Consent to a search "must be freely and voluntarily given." Herrmann, 2000 WI App at ¶ 19, 233 Wis. 2d at 148, 608 N.W.2d at 412. "If consent is granted only in acquiescence to an unlawful assertion of authority, the consent is invalid." Bermudez, 221 Wis. 2d at 348, 585 N.W.2d at 633. Moreover, an initial refusal to permit a search when asked "also militates ágainst a finding of voluntariness." State v. Kiekhefer, 212 Wis. 2d 460, 472, 569 N.W.2d 316, 324 (Ct. App. 1997).

¶ 11. The officers entered Munroe's room for, ostensibly, one purpose: to check his identification. This stated purpose was not true (the officer admitted that they were on a drug, gun, and prostitution interdiction; certainly two armed officers were not dispatched to see who was either paying cash without showing a photo identification or registering under an alias), but it was the reason Munroe acquiesced to their entry and cooperated with them. They checked his identification and determined that he did not violate the Glendale ordinance that prohibits someone from registering in a motel under an assumed name. Once the officers were assured that Munroe had not violated the ordinance — again, this was the proffered but false reason for their having knocked on his door at 7 a.m. — their "license" granted by Munroe's acquiescence to their presence in his room vanished, because the lawfulness of an officer's actions turns on the officer's role or function at the time. State v. Dull, 211 Wis. 2d 652, 659, 663, 565 N.W.2d 575, 578-579, 580 (Ct. App. 1997) (officer's shift from community-caretaker function to that of law-enforcement). Thus, they had no authority to use their continued presence in his room to conduct a general search, and Munroe denied their first request to do so. Their continued questioning and their renewed request to search made Munroe's "consent" not voluntary. See Bermudez, 221 Wis. 2d at 348, 585 N.W.2d at 633 (consent granted only in acquiescence to unlawful assertion of authority is invalid).

¶ 12. Although not directly applicable here because the officers' requests to search were themselves unlawful assertions of authority, our cases recognize that consent to search can follow earlier illegal police activity; if that happens, the consent is invalid unless the effect of the earlier illegal police activity has been attenuated. Id., 221 Wis. 2d at 352, 585 N.W.2d at 634. There are three factors that apply in an analysis of whether the earlier illegal police activity has sufficiently attenuated by the time consent to search is given, and analysis of them in light of the circumstances of this case underscores why the officers' search pursuant to Munroe's "consent" was unlawful.

¶ 13. The three factors that help to determine whether the taint of earlier illegal police activity has been attenuated by the time a consent to search is granted are: "(1) the temporal proximity of the official misconduct and seizure of evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct." Phillips, 218 Wis. 2d at 205, 577 N.W.2d at 805. Applying them here, we see that, first, the officers' search of Munroe's room was contemporaneous with their unlawful continued presence in his room. There was thus "temporal proximity." Second, unlike the situation in Phillips, where the officers honestly "explained that [suspected drug dealing was] the purpose of the visit," and thus provided Phillips "with sufficient information with which he could decide whether to freely consent to the search of his bedroom," 218 Wis. 2d at 208-209, 577 N.W.2d at 807, the officers here continued to mislead Munroe about their real reason for being in his room right up to the time that he finally agreed to let them search. Third, persons in our society have a right founded in deep and abiding constitutional principles "to dwell in reasonable security and freedom from surveillance." Johnson, 333 U.S. at 14. Justice Robert H. Jackson, writing for the Court, expressed it so well:

An officer gaining access to private living quarters under color of his office and of the law which he personifies must then have some valid basis in law for the intrusion. Any other rule would undermine 'the right of the people to be secure in their persons, houses, papers and effects,1 and would obliterate one of the most fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the láw.

Id., 333 U.S. at 17 (footnote omitted). Sadly, the officers here used their ruse about wanting to check Munroe's identification to mimic those myrmidons of King George who bedeviled the colonists with their General Warrants and Writs of Assistance, which gave the king's agents license to search everywhere and everyone. Unlike the situation in Phillips, 218 Wis. 2d at 185, 577 N.W.2d at 797, the officers here were not investigating information that the object of their search was involved in any illegal activity; they were doing a general sweep. Their violation of Munroe's constitutional rights was purposeful and flagrant.

By the Court. — Judgment reversed.

SCHUDSON, J.

¶ 14. (concurring). Although I agree with much of the majority opinion, I do not fully join in it for three reasons.

¶ 15. First, the majority opinion offers an all-too-sparse summary of the factual record, additional portions of which are essential to a complete understanding of the case.

¶ 16. Second, while the majority opinion acknowledges that this case involves a warrantless search, it draws much of its legal sustenance from the well of search warrant authority. Without citation to authority, it then asserts, "[TJhere was no warrant here, but similar principles apply...Majority at ¶ 9. Do similar principles apply? Perhaps, but the majority opinion has failed to explain why, in this case, it is necessary or appropriate to rely on what often stands as a significantly distinct body of law.

¶ 17. Third, the majority opinion relies on attenuation principles but, curiously, comments that these principles are "not directly applicable here...." Majority at ¶ 12. If "not directly applicable here," however, they play little if any part in the analysis. But in my estimation, this portion of the majority opinion sells itself short; the attenuation analysis is "directly applicable here."

¶ 18. Accordingly, I respectfully concur.

      A defendant may appeal from an order denying a motion to suppress evidence even though the judgment of conviction rests on a guilty plea. Wis. Stat. § 971.31(10).

       The concurrence complains that our summary of the material evidence is an "all-too-sparse summary," but does not indicate what in the record it believes should have been mentioned but was not.

       The Fourth Amendment to the United States Constitution provides:
      The 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 provides:
      The 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.

       As noted in Schneckloth v. Bustamonte, 412 U.S. 218, 231-232 (1973):
      Consent searches are part of the standard investigatory techniques of law enforcement agencies. They normally occur on the highway, or in a person's home or office, and under informal and unstructured conditions. The circumstances that prompt the initial request to search may develop quickly or be a logical extension of investigative police questioning. The police may seek to investigate further suspicious circumstances or to follow up leads developed in questioning persons at the scene of a crime.
      Here, however, the "initial request" to search neither "developled] quickly" nor was a "logical extension of investigative police questioning" — there were no "suspicious circumstances" or "leads." Indeed, the officer conceded during his testimony at the suppression hearing that he and his partner did not have any reason to suspect that Munroe was involved in any unlawful activity (other than, perhaps, registering at the motel under an assumed name, a "suspicion" that they quickly allayed). We emphatically reject the State's attempt to justify what was done in this case to Munroe because he selected an inexpensive motel where, according to the officer's testimony, other persons had engaged in illegal activity.

        This is the argument that the State attempts to have us sanction:
      The suspicion in this case was more than a hunch, but less than probable cause. The officers went to the North Shore Inn in an attempt to detect illegal drug traffic because the motel had a problem with drugs, guns and prostitution. The fact that police are dealing with a high crime area is a proper consideration. Once at the motel, police determined that a person identifying himself as David Munroe had checked in, paid with cash and failed to produce a photo ID.
      Regardless of any particular municipal ordinance, no experienced law enforcement officer would have failed to find this information suspicious. This suspicion justified the minimal intrusion of a brief investigatory stop.
      (Record references and case citation omitted.) The brief "investigatory stop" to which this portion of the State's brief refers is an attempt to support the trial court's conclusion that the officers were justified in talking to Munroe in his motel room about drugs under the authority for brief investigatory stops set out in Terry v. Ohio, 392 U.S. 1 (1968) and WiS. Stat. § 968.24. But both Terry and § 968.24 authorize such stops in public places, not in homes or hotel rooms. Foley v. Connelie, 435 U.S. 291, 297 (1978) (Terry); § 968.24 ("... a law enforcement officer may stop a person in a public place ...").


source: Caselaw Access Project

author: CURLEY, J. FINE, J. SCHUDSON, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Shane M. Ferguson, Defendant-Appellant.

    Court of Appeals

      No. 00-0038-CR.

      Submitted on briefs November 6, 2000.

    Decided April 3, 2001.

    2001 WI App 102
    (Also reported in 629 N.W.2d 788.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Melinda Swartz, assistant state public defender.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, with William L. Gansner, assistant attorney general.
    Before Fine, Schudson and Curley, JJ.

      Petition to review dismissed.

   CURLEY, J.

¶ 1. Shane Ferguson appeals from a judgment convicting him of manufacturing a controlled substance, marijuana, contrary to Wis. Stat. §§ 961.14(4)(t) and 961.41(1)(h)2. Ferguson argues that the trial court erred in denying his suppression motion. He contends that the police were not engaged in a community caretaker function when they jimmied the lock on his bedroom door, entered, and looked in a closet where they found marijuana plants growing. Under the unique facts presented here, we are satisfied that the police were serving in their role as community caretakers when they conducted the search. Thus, we affirm.

I. Background.

¶ 2. Although many of the events leading to Ferguson's arrest were disputed, the facts found by the trial court at the motion to suppress are as follows. On January 29, 1999, the West Allis Police Department received a 911 call regarding a fight at an apartment building on West Mitchell Street. At approximately 10:15 p.m., members of the West Allis Police Department answered the call. Before entering the building, the police encountered Deidre Foster,'who, it was learned later, was eighteen years old. She was irate, angry and intoxicated.

¶ 3. Since the call initiated from Apartment 3, several officers went to that apartment to investigate the complaint. They knocked on the apartment door several times, but no one answered. While they were standing outside the door, Foster appeared, unlocked the door and stated something to the effect, "if I'm going to get arrested then everyone is." Foster then entered the apartment and yelled that the police were there and that everyone should come out.

¶ 4. The police followed Foster into her apartment. Upon entering the apartment, the police saw two teenagers in the living room. The police observed that the two teenagers appeared to have been consuming alcoholic beverages, but the police did not believe they were highly intoxicated. The police confirmed that the two teenagers were underage. The police also noticed numerous open beer bottles and several empty gallon bottles of hard liquor strewn around the apartment. The officers surmised that a lot of alcohol had recently been consumed in the apartment. One of the police officers asked Foster if they could take a look around and she agreed. This search led the officer to the bathroom, where he found a highly intoxicated young man lying on the floor. He was sick and had been vomiting. This individual, too, was underage. The young man was so unsteady on his feet as a result of his alcohol consumption that the police had to physically assist him in walking.

¶ 5. A further search of the apartment revealed a locked bedroom door. It had a push-button type lock which is engaged by pushing a button from inside the room. As a result, the police strongly suspected that someone was in the room. Foster told the officers that the room belonged to Ferguson and that he was at work, but when the police called. Ferguson's place of employment, they learned that he had not been to work for several days. The police then became concerned that Ferguson might be in the room, highly intoxicated, like the teenager found in the bathroom, and that he might need assistance. While the police were contemplating what to do, one of the two teenagers found in the living room volunteered that three people were in the bedroom. Fearing that additional underage persons were in the bedroom, either ill or passed out from consuming intoxicants, the police began knocking on the door and yelling for whoever was in the room to come out. Despite numerous knocks on the door and loud yelling, no one responded. After about thirty minutes, the police finally jimmied the door open. Upon entering, the police observed that the room was very messy, with piles of clothing on the floor, and that there were people, including Ferguson, in the bed. Thinking that someone could have been hidden in the closet and passed out, one of the officers opened the closet door and discovered the marijuana plants.

¶ 6. Ferguson was charged with the manufacture of marijuana. He waived his preliminary hearing and filed a motion to suppress. After hearing the testimony of several witnesses, the trial court found that the police properly entered the bedroom and that the search of the closet was also reasonable. The trial court held that, although the police searched the bedroom and closet without a warrant, they did so in their capacity as community caretakers. Ferguson then pled guilty and was sentenced to a stayed sentence of one year and was placed on two years' probation.

II. Analysis.

¶ 7. Ferguson contends that the trial court erred in denying his motion to suppress. He claims that the State failed to establish, by a clear preponderance of the evidence, that the search was a justifiable governmental action. Ferguson argues that he had exercised his right to privacy by closing and locking the door, and that the search was illegal because the police lacked a warrant to search either his bedroom or his closet. In support of his position, Ferguson notes that, despite the presence of the police in the apartment for at least thirty minutes, the police failed to make any attempt to obtain a search warrant for his bedroom or the closet. Ferguson also disputes the trial court's finding that the officers' warrantless entry into Ferguson's bedroom and closet was justified under the community caretaker exception. He states that the police were conducting an investigation of underage drinkers, which was essentially a criminal investigation, and thus, the police were not acting in a community caretaker capacity. Further, he notes that the police never called for paramedics, nor did they personally render medical assistance to anyone, thus negating any claim of acting in a community caretaker role. Ferguson equates his situation with that in State v. Dull, 211 Wis. 2d 652, 565 N.W.2d 575 (Ct. App. 1997), where this court concluded that the circumstances did not permit the warrantless entry into the defendant's home or bedroom. We are not persuaded by Ferguson's arguments.

¶ 8. A determination of whether a search and seizure is constitutional is a question of law which this court reviews de novo. State v. Guzman, 166 Wis. 2d 577, 586, 480 N.W.2d 446, cert. denied, 504 U.S. 978 (1992). However, the trial court's findings of fact will be upheld unless they are contrary to the great weight and clear preponderance of the evidence. State v. Richardson, 156 Wis. 2d 128, 137, 456 N.W.2d 830 (1990). After reviewing the record, we conclude that the trial court's findings are not contrary to the great weight and clear preponderance of the evidence.

¶ 9. A warrantless search of a house is presumptively unreasonable as both the Fourth Amendment to the United States Constitution and Article I, § 11 of the Wisconsin Constitution prohibit unreasonable searches and seizures. Some exceptions to this rule do exist, however.

"Our laws recognize that, under special circumstances, it would be unrealistic and contrary to public policy to bar law enforcement officials at the doorstep." Therefore, a handful of exceptions have been "jealously and carefully drawn" to balance the interests of the individual with those of the State.

State v. Paterson, 220 Wis. 2d 526, 532-33, 583 N.W.2d 190 (Ct. App. 1998) (citations omitted).

¶ 10. It is undisputed that the seizure of the contraband was a seizure "within the meaning of the fourth amendment," but the State contended, and the trial court agreed, that the officers' actions fell under the community caretaker exception. The community caretaker exception originated in Cady v. Dombrowski, 413 U.S. 433, 447 (1973). There, the Supreme Court approved the warrantless search of a vehicle because the police were engaged in "what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating tó the violation of a criminal statute." Id. at 441.

¶ 11. Our supreme court first recognized the "community caretaker" exception in Bies v. State, 76 Wis. 2d 457, 251 N.W.2d 461 (1977). Later, a test for applying the community caretaking exception to the Fourth Amendment was announced in State v. Anderson, 142 Wis. 2d 162, 417 N.W.2d 411 (Ct. App. 1987), rev'd on other grounds, 155 Wis. 2d 77, 454 N.W.2d 763 (1990).

¶ 12. After applying the Anderson test, we are satisfied that the police actions here-qualified as "community caretaker." A search, to qualify as a community caretaker exception, requires an examination of three factors:

We conclude that when a community caretaker function is asserted . . . the trial court must determine: (1) that a seizure within the meaning of the fourth amendment has occurred; (2) if so, whether the police conduct was bona fide community caretaker activity; and (3) if so, whether the public need and interest outweigh the intrusion upon the privacy of the individual.

Anderson, 142 Wis. 2d at 169.

As to the last factor — weighing the public need and interest against the intrusion — relevant considerations include: (1) the degree of the public interest and the exigency of the situation; (2) the attendant circumstances surrounding the seizure, including time, location, the degree of overt authority and force displayed; (3) whether an automobile is involved; and (4) the availability, feasibility and effectiveness of alternatives to the type of intrusion actually accomplished.

Id. át 169-70.

¶ 13. It is conceded that a seizure occurred within the meaning of the Fourth Amendment. Therefore, we address the last two Anderson factors. First, we conclude that the police were engaged in a "bonafide community caretaker activity" when they found the marijuana. The police were called to a fight when they went to Apartment 3. Someone in Apartment 3 made the complaint about the alleged fight in Apartment 2. Thus, the police were unaware of any wrongdoing in Apartment 3 when they arrived. Further, the police were not investigating a crime after encountering several underage drinkers in the apartment. This is so because underage drinking is not a crime. See WiS. Stat. § 939.12 ("conduct punishable only by a forfeiture is not a crime"). While underage drinkers are subject to arrest, an underage drinker is only subject to a forfeiture action. See Wis. Stat. §§ 125.07(4)(b) and 938.344. Thus, the police decision to investigate whether additional underage drinkers were in the apartment was not per se a "criminal" investigation.

¶ 14. Ferguson suggests that the police action was a typical criminal investigation. We disagree. It was only after the police could not eliminate the possibility that Ferguson was in the bedroom, and after they unsuccessfully attempted to have the occupants come out voluntarily to confirm their well-being, that the police entered the bedroom. Further, it was established that the only purpose in opening the closet door was to confirm that no highly intoxicated person was hiding there.

¶ 15. Further, the trial court's finding that the motivation for the police to enter Ferguson's bedroom closet was to assist him, not to arrest, is not clearly erroneous. As noted, before entering Ferguson's bedroom, the police knew that: (1) Foster was intoxicated, another severely intoxicated teenager was found in the bathroom, and two other teenagers had been drinking; (2) evidence of large amounts of alcohol consumption was seen in the apartment; and (3) someone was in the bedroom who failed to respond or come out of the room. In light of the circumstances, it was reasonable for the police to be concerned about the bedroom occupants' physical conditions, particularly since the police received no response to their knocking and yelling, strongly suggesting that the additional persons in the bedroom were incapacitated.

¶ 16. Finally, in examining the last factor in the Anderson test, the public need versus Ferguson's interest against the intrusion, again we are satisfied that the search undertaken by the police was appropriate and outweighed any intrusion into Ferguson's privacy. The police, sent to investigate a complaint of a fight, were suddenly confronted with four intoxicated teenagers, two of whom were highly intoxicated. Contrary to Ferguson's contention that the police rendered no aid, the record reveals that the police quieted down Foster and assisted the other teenager in walking to the bathroom on several occasions. Thus, in applying the balancing test, we determine, under the exigent circumstances presented here, that the officers' reasons for entry outweighed Ferguson's privacy rights. Thus, under the Anderson test, we are satisfied that the officers were engaged in a community caretaker function when the search was conducted.

¶ 17. Recently, the Ninth Circuit United States Court of Appeals, in United States v. Cervantes, 219 F.3d 882 (9th Cir. 2000), adopted a three-part test for determining whether a warrantless entry into a home pursuant to the "emergency doctrine" is a Fourth Amendment violation. This test is similar to the community caretaker test found in Anderson, and provides:

"(1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property. (2) The search must not be primarily motivated by intent to arrest and seize evidence. (3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched."

Cervantes, 219 F.3d at 888 (quoting People v. Mitchell, 347 N.E.2d 607, 609 (N.Y. 1976)).

¶ 18. An application of this test supports our conclusion that the police were engaged in a community caretaker role when they entered the bedroom and searched the closet.

¶ 19. Under the Cervantes test, the police must have reasonable grounds to believe there was an "emergency at hand." Here, such grounds existed. The police found four intoxicated youths. One was so severely intoxicated that he could not stand unassisted. Signs of consumption of large amounts of alcohol were also seen in the apartment. Further, the police had been told that three people were in the bedroom, but no one responded to knocking and yelling. Coupling these facts together, we conclude the police reasonably believed that there was an "immediate need for their assistance for the protection of life."

¶ 20. The next factor examines the police motivation for the search. Here, the motivation for the police action was not a desire to arrest or seize evidence. Rather, the police wanted to prevent serious harm or to render aid to any highly intoxicated persons found in either the bedroom or the closet. Finally, the third factor requires the police to have "probable cause" that the area to be searched is connected to the emergency. There was good reason here for the police to associate the emergency with Ferguson's bedroom and closet. The police strongly suspected that someone was in the room because the lock on the door suggested it and because they were told three people were in the room who were not responding. Thus, the bedroom was intrinsically linked to the emergency. In applying the Cervantes three-part test to the facts of this case, we are satisfied that the police actions under the emergency doctrine, as well as the "community caretaker" exception, did not violate the Fourth Amendment.

¶ 21. Ferguson cites Dull as being on point. However, the police actions and circumstances here differ in several respects from those found in Dull. Unlike the facts in Dull, where the police entered the house almost immediately after discovering an underage drinker in the driveway of his house and found Dull engaged in a sex act with a minor, here the police utilized alternative methods of confirming whether anyone was in the room before entering. They took the trouble to call Ferguson's employer to locate him, and then they yelled and knocked for approximately thirty minutes. In Dull, the police made no attempts at contacting the underage drinker's mother, nor did they attempt to phone the house. Moreover, in Dull, the juvenile advised the officer against entering his home and only acquiesced when the officer would not permit the juvenile to get his brother.

¶ 22. However, the biggest distinction between the cases lies with the fact that the police in Dull were not faced with an emergency such as occurred here. Unlike the facts in Dull, the police here never stepped out of their caretaking role. Although consuming alcoholic beverages by a minor occurred in both cases, the police in this case did not know the number of people present in the apartment or their physical condition. Thus, the situation here was fluid where the situation in Dull was concluded with the detention of the juvenile. Further, once inside the bedroom, given the facts known to the officers and the disarray they observed, it was reasonable for the police to open the closet door to see if anyone was hiding there. Thus, we determine, as did the trial court, that the police were conducting a bona fide community caretaker activity when they searched Ferguson's bedroom and closet.

¶23. Consequently, the search of the bedroom and the closet was permissible. Accordingly, we affirm the judgment of the trial court.

By the Court. — Judgment affirmed.

FINE, J.

¶ 24. (concurring). I fully join in the majority decision, but write separately to note that if the police did what the dissent says that under the law they were required to do — namely, without trying to see if Ferguson was all right and that there was no one in the closet who was ill, perhaps life-threateningly ill, we might not be deciding Ferguson's appeal but, rather, an appeal in a civil lawsuit claiming that the police ignored their community-caretaking function and thus left a juvenile to die in his or her own alcohol-induced vomit. In my view, the distinctions between Dull and this case are clear, as the majority opinion so carefully explains. The police here should be commended for their thoroughness and concern.

SCHUDSON, J.

¶ 25. (dissenting). Although the police conduct in this case seems reasonable, it does not qualify under the community caretaking function as interpreted and applied in State v. Dull, 211 Wis. 2d 652, 565 N.W.2d 575 (Ct. App. 1997).

¶ 26. In Dull, we acknowledged that "the deputy may have properly monitored [the juvenile] as [he] proceeded into the house, down the stairs and to [Dull's] closed bedroom door." Dull, 211 Wis. 2d at 663. We recognized that that was "as far as [Washington v.] Chrisman [455 U.S. 1 (1982)] took the deputy." Id. Consequently, we held that "Chrisman does not justify what the deputy did in this case" — opening the bedroom door. Id. at 662-63 (emphasis added).

¶ 27. In Dull, as in Chrisman, a law enforcement officer was monitoring the movements of a person in custody. Despite that fact, this court concluded that "the deputy's separate decision to open [the juvenile's older brother's] bedroom door" was within neither the proper scope of such monitoring nor the proper scope of the community caretaker function. Dull, 211 Wis. 2d at 660-63. In the instant case, the circumstances do not even include the monitoring of a person in custody. Thus, if anything, Ferguson's arguments are stronger than those offered by the appellant in Dull.

¶ 28. The majority has struggled, unsuccessfully I think, to distinguish Dull in order to support the police conduct in this case. Although I appreciate the majority's effort, I am hopeful that the supreme court, should it have the opportunity to examine the instant case, will take a different approach and, in doing so, will consider the serious problems Dull brings to the real world of policing.

¶ 29. This case is a difficult one and, as the majority has explained, the police conduct seems so prudent for so many reasons. Indeed, I am quite uncomfortable withDuZZ's implication that the community caretaking function can be so certainly segmented — from hallway to room or, in this case, from room to closet. Lives depend on police "erring," if at all, on the side of safety for those desperately needing help, lying behind closed doors.

¶ 30. Still, until the supreme court says otherwise, Dull must be followed carefully. Because, under Dull, the police search — of the closet, at the very least — was improper, I reluctantly and respectfully dissent.

       All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       In the trial court, Ferguson also argued that the police did not have permission to enter the apartment. That issue has since been abandoned.

       Thus, I share the concurring opinion's concern that had the police failed to act as they did, a life might have been lost. Therefore, only delicately disagreeing with the majority, I voice added concern about what I view as the dangers flowing from State v. Dull, 211 Wis. 2d 652, 565 N.W.2d 575 (Ct. App. 1997).


author: CANE, C.J.

text:
    Float-Rite Park, Inc., Plaintiff-Appellant, William Magnuson, Plaintiff-Co-Appellant, v. Village of Somerset, Defendant-Respondent.
    Court of Appeals

      No. 00-1610.

      Submitted on briefs February 5, 2001.

    Decided April 3, 2001.

    2001 WI App 113
    (Also reported in 629 N.W.2d 818.)

      On behalf of the plaintiff-appellant and plaintiff-co-appellant, the cause was submitted on the briefs of Matthew A. Biegert of Doar, Drill & Skow, S.C. of New Richmond.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Timothy A. Yanacheck of Law Offices ofStilp & Cotton of Madison.
    Before Cane, C.J., Hoover, P.J., and Peterson, J.

      Petition to review denied.

   CANE, C.J.

¶ 1. Float-Rite Park, Inc. and one of its patrons, William Magnuson (collectively, Float-Rite), appeal from orders dismissing their actions seeking a declaration that a Village of Somerset ordinance provision is unconstitutional. The sole issue is whether the provision, which allows law enforcement and others to enter the premises of licensed innertube rental businesses, is unconstitutional on its face. Because the ordinance is in harmony with accepted constitutional principles, the trial court's orders are affirmed.

Background

¶ 2. Float-Rite operates an innertube rental business and campground located on private property in the Village of Somerset. It brought this suit seeking declaratory and injunctive relief prohibiting the Village from entering and patrolling its property pursuant to Village of Somerset, Wis., Ordinance § 11.09(4), which applies to all licensees of innertube rental businesses in the Village. Section 11.09(4) provides:

Access for Public Safety. All premises used by the licensee for the innertube rental business and open to the public, including campground areas operated by the licensee, shall be open to the Village police officers, firefighters, ambulance and emergency rescue squads. The licensee, by applying for and holding a Village tubing license, shall be deemed to have consented to such entry by Village police, firefighters, ambulance and emergency rescue squads for purposes of maintaining proper safety and welfare of the public.

¶ 3. The trial court denied Float-Rite's requests for declaratory and injunctive relief. Although Float-Rite initially challenged both the facial constitutionality of § 11.09(4) and the constitutionality of the ordinance as applied, the parties have stipulated to the dismissal of Float-Rite's challenge to the ordinance as applied. The sole remaining issue, therefore, is the facial constitutionality of § 11.09(4).

¶ 4. Float-Rite argues that § 11.09(4) authorizes nonconsensual, warrantless administrative searches of Float-Rite's commercial property in violation of the Fourth Amendment to the United States Constitution. Furthermore, Float-Rite argues that even if the Village is authorized to enact an ordinance allowing for war-rantless and nonconsensual searches, the ordinance is unconstitutionally broad and ambiguous.

¶ 5. We reject Float-Rite's challenge to the ordinance because we disagree that it authorizes searches under the Fourth Amendment. The ordinance permits the personnel specified in § 11.09(4) to enter only those areas open to the public, which does not necessarily constitute a search. Furthermore, we interpret -the ordinance as preserving the possibility that Float-Rite and its guests may have an expectation of privacy in certain areas on its grounds (e.g., inside individual tents). Consequently, the ordinance is facially constitutional.

Legal Standards

¶ 6. Float-Rite's challenge to the constitutionality of § 11.09(4) presents a question of law that this court reviews de novo. See Urmanski v. Town of Bradley, 2000 WI App 141, ¶ 4,237 Wis. 2d 545, 613 N.W.2d . 905. In general, statutes and ordinances are the beneficiaries of a presumption of constitutionality which the attacker must refute. Id. An opponent of an ordinance must establish the ordinance's unconstitutionality beyond a reasonable doubt. Thorp v. Town of Lebanon, 2000 WI 60, ¶ 44, 235 Wis. 2d 610, 612 N.W.2d 59.

¶ 7. The cardinal rule of statutory construction is to preserve an ordinance and to find it constitutional if it is at all possible to do so. See Chappy v. LIRC, 136 Wis. 2d 172, 185, 401 N.W.2d 568 (1987). Thus, this court's duty, if possible, is to construe the ordinance to find it in harmony with accepted constitutional principles. See State ex rel. Harvey v. Morgan, 30 Wis. 2d 1, 13, 139 N.W.2d 585 (1966). Furthermore, we may construe constitutionally-deficient ordinances to include constitutionally-required provisions. See State v. Mahone, 127 Wis. 2d 364, 369, 379 N.W.2d 878 (Ct. App. 1985).

¶ 8. The Fourth Amendment and art. I, § 11, of the Wisconsin Constitution guarantee citizens the right to be free from unreasonable searches and seizures. See State v. Richardson, 156 Wis. 2d 128, 137, 456 N.W.2d 830 (1990). Wisconsin courts rely on the Supreme Court's interpretations of the search and seizure provisions of the United States Constitution in interpreting the Wisconsin Constitution. See State v. Fry, 131 Wis. 2d 153, 171-72, 388 N.W.2d 565 (1986).

¶ 9. The primary objective of the Fourth Amendment is the protection of privacy. State v. Bauer, 127 Wis. 2d 401, 405, 379 N.W.2d 895 (Ct. App. 1985). Only those government intrusions that infringe upon a privacy interest violate the Fourth Amendment. Id. The United State Supreme Court in Katz v. United States, 389 U.S. 347, 350 (1967), established a two-prong test to determine whether a person has been subjected to an unreasonable search or seizure under the Fourth Amendment. Bauer, 127 Wis. 2d at 405-06. First, the complaining party must have exhibited an actual expectation of privacy and second, the expectation must be one that society is prepared to recognize as reasonable. Id. at 406. Thus, for a search or seizure to be unreasonable, it must invade a justifiable expectation of privacy. Id.

¶ 10. The Fourth Amendment reasonableness standard applies to administrative inspections of commercial premises. See See v. City of Seattle, 387 U.S. 541, 545-46 (1967). However, warrantless inspections of commercial premises are not necessarily unreasonable, especially in pervasively-regulated industries. See Lundeen v. Department of Ag., Trade & Cons. Prot., 189 Wis. 2d 255, 261, 525 N.W.2d 758 (Ct. App. 1994).

Discussion

¶ 11. The parties' briefs devote considerable attention to whether innertube rental businesses and campgrounds, especially those with liquor licenses, are pervasively-regulated industries. We need not reach this issue because we conclude that innertube rental businesses, including those with campgrounds, do not have a justifiable expectation of privacy in areas open to the public. See Katz, 389 U.S. at 351 ("What a person knowingly exposes to the public ... is not a subject of Fourth Amendment protection.").

¶ 12. We begin with the proposition that not all entries onto commercial property constitute a search under the Fourth Amendment. A search occurs when "an expectation of privacy that society is prepared to consider reasonable is infringed." Maryland v. Macon, 472 U.S. 463, 469 (1985). Professor Wayne R. LaFave has commented that although businesspersons, like the occupants of a residence, have a constitutional right to go about their business free from unreasonable official entries onto their private commercial property, business and commercial premises are not as private as residential premises. See Wayne R. LaFave, Search and SEIZURE § 2.4(b), at 531 (3d ed. 1996). Consequently,

there are various police investigative procedures which may be directed at such premises without the police conduct constituting a Fourth Amendment search. Katz v. United States teaches that "[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." This means "that as an ordinary matter law enforcement officials may accept a general public invitation to enter commercial premises for purposes not related to the trade conducted thereupon." On this basis, courts have consistently held that police, albeit motivated by an investigative purpose, conducted no search by merely entering such premises as a bus terminal, auto repair shop, salvage yard, used car lot, dock, real estate office, courier company office, motel, hospital, pool hall, bar, restaurant, furniture store, bookstore, or variety store. The "implied invitation for customers to come in," of course, extends only to those times when the premises are in fact "open to the public"; the mere fact that certain premises are open to the public at certain times does not justify entry by the police on other occasions.

Id. at 531-32 (citations omitted; footnotes omitted); see also Maryland, 472 U.S. at 469 (officer who entered adult bookstore and examined the wares intentionally exposed to all shoppers did not infringe a legitimate expectation of privacy and therefore officer's actions did not constitute a search within the meaning of the Fourth Amendment).

¶ 13. Consistent with these cases, Village personnel acting pursuant to the ordinance do not necessarily infringe a legitimate expectation of privacy when they enter an innertube rental business and campground. We highlight the word necessarily because when a party contests the lawfulness of an arrest or seizure, the party must establish both an actual (subjective) and an objectively-reasonable expectation of privacy. See Smith v. Maryland, 442 U.S. 735, 740 (1979). Thus, the party must first, by his or her conduct, exhibit an actual, subjective expectation of privacy. See id. The second question is whether the individual's expectation, viewed objectively, is justifiable under the circumstances. Id. We have not been asked to evaluate whether a specific entry to Float-Rite's property constituted a search and, therefore, we can only conclude that under some circumstances, entries pursuant to the ordinance would not constitute a search under the Fourth Amendment.

¶ 14. Next, we must apply these principle to interpret § 11.09(4). The first sentence of the ordinance provides, "All premises used by the licensee for the innertube rental business and open to the public, including campground areas operated by the licensee, shall be open to the Village police officers, firefighters, ambulance and emergency squads." We read this sentence as authorizing no more than those inspections already allowed by the Fourth Amendment. See Marshall v. Barlow's, Inc., 436 U.S. 307, 315 (1978) ("What is observable by the public is observable, without a warrant, by the Government inspector as well.").

¶ 15. The second sentence of § 11.09(4) states, "The licensee, by applying for and holding a Village tubing license, shall be deemed to have consented to such entry by Village police, firefighters, ambulance and emergency rescue squads for purposes of maintaining proper safety and welfare of the public." This sentence could be interpreted to suggest that licensees relinquish their Fourth Amendment rights in exchange for their licenses. However, the Village wisely does not rely on such an argument, because a state actor cannot constitutionally condition the receipt of a benefit, such as a liquor license or an entertainment permit, or, as in this case, an innertube rental business license, on an agreement to refrain from exercising one's constitutional rights. See G&V Lounge, Inc. v. Michigan Liquor Control Comm'n, 23 F.3d 1071, 1077 (6th Cir. 1994).

¶ 16. Accordingly, we conclude both sentences of the ordinance simply restate the Fourth Amendment law that already applies to commercial businesses. The benefit of the ordinance is that it provides licensees with additional notice that the Village intends to enter areas open to the public. Consistent with Fourth Amendment jurisprudence, the personnel identified in the ordinance may enter those areas open to the public, at times the areas are open to the public. See Barlow, 436 U.S. at 315.

¶ 17. Furthermore, the personnel will not have unlimited access to every area of the premises. What a person seeks to preserve as private, even in an area accessible to the public, in certain circumstances may be constitutionally protected. See Katz, 389 U.S. at 351. Float-Rite and its patrons, therefore, may in some circumstances have a protected interest in privacy in some areas of the premises. For instance, courts have recognized that a person can have an objectively-reasonable expectation of privacy in a tent on private property, see LaDuke v. Nelson, 762 F.2d 1318, 1326 n.11, 1332 n.19 (9th Cir. 1985), modified, 796 F.2d 309 (9th Cir. 1986), or in a tent in a public campground, see United States v. Gooch, 6 F.3d 673, 677 (9th Cir. 1993).

¶ 18. Finally, we note that it is possible the Village, purporting to act pursuant to the ordinance, might conduct unreasonable, unconstitutional searches. This possibility does not make the ordinance unconstitutional. The remedy in such is a case is to challenge the ordinance as applied, or to move to exclude evidence produced during an unconstitutional search. We are bound to construe the ordinance, if possible, to find it in harmony with accepted constitutional principles. See Morgan, 30 Wis. 2d at 13. Accordingly, we construe the ordinance as providing the Village no greater right to enter the premises than that already afforded by the Fourth Amendment, which includes the right to have law enforcement and other Village personnel enter those areas open to the public, at times they are open to the public.

By the Court. — Orders affirmed.

       Additionally, we note that Village personnel may have other legitimate bases for entering the property, such as when they have probable cause to believe a crime is being committed. Because we have been asked to evaluate only the facial constitutionality of the ordinance, we do not address the parties' arguments with respect to other bases for entry, including the Village's argument that it can enter Float-Rite's property because Float-Rite holds a liquor license.

       Float-Rite, citing United States v. Gooch, 6 F.3d 673, 677 (9th Cir. 1993), argues that because a campground becomes a place of short-term residence, patrons have a reasonable expectation of privacy. Although Gooch held that campers can have an objectively-reasonable expectation of privacy in their tents, we reject Float-Rite's suggestion that the entire campground would necessarily fall within that expectation of privacy. As previously noted, specific allegations that the Village has violated the Fourth Amendment will need to be considered on an individual basis.


author: BROWN, P.J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Joshua Slagoski, Defendant-Appellant.

    Court of Appeals

      No. 00-1586-CR.

      Submitted on briefs February 9, 2001.

    Decided April 4, 2001.

    2001 WI App 112
    (Also reported in 629 N.W.2d 50.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Christopher W. Rose of Rose & Rose of Kenosha.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of Gregory M. Posner-Weber, assistant attorney general, and James E. Doyle, attorney general.
    Before Brown, P.J., Nettesheim and Snyder, JJ.

      Petition to review denied.

   BROWN, P.J.

¶ 1. Joshua Slagoski appeals from a judgment of conviction and from a postconviction order denying his motion for sentence modification. He contends that the trial court sentenced him on the basis of materially inaccurate information, that the postconviction psychiatric evaluation by a forensic psychiatrist is a new factor warranting sentence modification, and that the use of pretrial competency and mental responsibility evaluations at sentencing violated Slagoski's Fifth and Sixth Amendment rights. We are satisfied that the trial court relied on accurate information in determining the sentence, and we hold that a postconviction, contradictory psychiatric opinion does not constitute a new factor for purposes of sentence modification. Finally, we hold that the trial court's consideration of pretrial psychiatric reports did not violate Slagoski's constitutional right to be free from compelled self-incrimination or his right to counsel.

¶ 2. In the early morning hours of April 22,1999, eighteen-year-old Slagoski was discovered in the bedroom closet of N.M., his friend's mother. Slagoski was dressed in N.M.'s clothing, was armed with knives and razor blades, and was carrying handcuffs and duct tape. He was charged with one count of burglary under Wis. Stat. § 943.10(1)(a) (1999-2000) and one count of burglary while armed with a dangerous weapon under § 943.10(2)(b).

¶3. In conjunction with Slagoski's pleas of not guilty and not guilty by reason of mental disease or defect, the trial court ordered competency and mental responsibility examinations. Dr. George Palermo, chosen by Slagoski, performed a mental responsibility examination of Slagoski on June 5,1999. Dr. Frederick Fosdal performed a mental responsibility examination of Slagoski on June 8,1999. Both psychiatrists believed Slagoski was legally sane at the time of the charged crimes. Additionally, Palermo believed that Slagoski posed a "homicidal-suicidal risk" because of his psychopathology. Both psychiatrists recommended psychotherapy.

¶4. Thereafter, Slagoski changed his pleas to guilty and no contest to single counts of burglary and armed burglary. During her sentencing argument, the prosecutor incorporated the findings of the two psychiatrists to establish Slagoski's future dangerousness. She then drew comparisons between Slagoski's behavior and certain behavioral traits observed by mental health professionals in some serial killers.

¶5. The trial court stated its belief that even if Slagoski shared certain characteristics with some serial killers, "that does not make him the reincarnation of Jeffrey Dahmer." The trial court believed that the reports of Palermo and Fosdal showed that Slagoski had certain mental health issues that increased his risk of future dangerousness. It sentenced Slagoski to a twenty-five year term of incarceration and a consecutive ten-year term of probation. Slagoski brings this appeal following the trial court's denial of his motion for sentence modification.

¶6. We first address Slagoski's contention that he was sentenced on the basis of inaccurate information. In support, he offers the affidavit of another psychiatrist, Dr. Basil Jackson, in which the doctor expresses his belief that the pretrial examinations provided an "inadequate foundation for coming to diagnostic and prognostic opinions" useful at sentencing. Jackson performed a postconviction examination of Slagoski to determine future dangerousness and concluded that he was not a sex offender, that he did not require sex offender treatment, that the crime Slagoski was involved in was not sexually motivated, that he did not fit the profile of a serial killer, and that he was not a danger to himself or others. In other words, Jackson's conclusions regarding Slagoski's future dangerousness completely contradict the report of Palermo that he could be a homicidal-suicidal risk.

¶7. Slagoski is correct that a defendant has a due process right "to be sentenced on the basis of true and correct information" pertaining to "the offense and the circumstances of its commission . . . and the defendant's personality, social circumstances and general pattern of behavior." State v. Perez, 170 Wis. 2d 130, 138, 140, 487 N.W.2d 630 (Ct. App. 1992) (citations omitted). To establish a due process violation, a defendant must show by clear and convincing evidence not only that the trial court received inaccurate information, but also that the court relied on the inaccurate information in imposing sentence. See State v. Johnson, 158 Wis. 2d 458, 467 n.4, 468, 463 N.W.2d 352 (Ct. App. 1990). We also keep in mind that the focus of a competency exam is modest, seeking to verify the defendant's mental capacity to understand the proceedings and to assist counsel at the time of the proceedings. See State ex rel. Haskins v. Dodge County Court, 62 Wis. 2d 250, 265, 214 N.W.2d 575 (1974). In this instance, Slagoski argues that the competency evaluation suggesting a prognosis of a homicidal-suicidal risk is beyond its proper "understand and assist" scope, and therefore is materially inaccurate to a constitutional magnitude. See United States v. Tucker, 404 U.S. 443, 447 (1972) (sentencing decision was founded upon misinformation of a constitutional magnitude when it relied upon defendant's prior convictions which were later held unconstitutional).

¶8. We are not persuaded by this argument. Slagoski cites no cases in support of his theory that a competency or mental responsibility examination is inaccurate if it contains information regarding future dangerousness. Nor do we believe that it is outside the scope of such an examination to draw conclusions concerning the defendant's likelihood to engage in future dangerous acts. We find illuminating the comments of the Seventh Circuit in Fleenor v. Anderson, 171 F.3d 1096, 1101 (7th Cir. 1999):

While prognosis and diagnosis are conceptually distinct, the former often follows from the latter. If someone is diagnosed as having end-stage cancer, the prognosis of a likely early death follows. Similarly, a person diagnosed as having a permanent mental disorder can be expected to continue the pattern of behavior that led to that diagnosis.

We will discuss Fleenor again when we consider Slagoski's Fifth and Sixth Amendment claims. For now we simply note that, in our view, Fleenor stands for the proposition that it is reasonable to anticipate that when a competency or NGI evaluation is conducted, the experts might render opinions regarding dangerousness. In fact, our review of clinical forensic literature adds support to this view. See, e.g., P. Kirkish & S. Sreenivasan, Neuropsychological Assessment of Competency to Stand Trial Evaluations: A Practical Conceptual Model, 27 J. Am. Acad. Psychiatry & Law 101, 102-03 (1999) (one prong for assessing competency is determination of prognosis for recovery and mechanism for facilitating that process).

¶9. We conclude that it is entirely reasonable that a mental competency examination designed to address a defendant's ability to understand the proceedings and assist counsel may also address issues of future dangerousness. If the evaluation establishes dangerousness, a court may reasonably consider it when gauging the need for public protection. This is wholly consistent with Wisconsin law which requires the sentencing court to consider all relevant available information pertaining to the seriousness of the offense, the character of the offender and the need for public protection. See State v. Jones, 151 Wis. 2d 488, 495, 444 N.W.2d 760 (Ct. App. 1989). In this case, Palermo formed an impression after his interview with Slagoski that he might commit an act of murder or suicide in the future. This opinion was contained in the report which then became a part of the trial court record. The trial court, when fashioning an appropriate sentence, was entitled, indeed even required, to consider this information along with all other relevant evidence when evaluating the factors for sentencing. At the subsequent hearing on sentence modification, Slagoski offered a contradictory psychiatric opinion which he claimed rendered the prior opinions incorrect or inaccurate. However, the trial court was entitled to accept or disregard this information as it deemed appropriate. We are convinced that Slagoski has failed to prove, by clear and convincing evidence, that the trial court received inaccurate information and relied on it in imposing sentence.

¶ 10. Slagoski also contends that Jackson's post-conviction report is a new factor justifying sentence modification. Whether facts constitute a new factor is a question of law we review de novo. State v. Michels, 150 Wis. 2d 94, 97, 441 N.W.2d 278 (Ct. App. 1989). A new factor is a fact or set of facts highly relevant to the imposition of sentence, but not known to the trial court at the time of original sentencing, either because it was not then in existence or because it was unknowingly overlooked by the parties. Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975). The new factor not only must be previously unknown, but it must also strike at the very purpose of the original sentence. Michels, 150 Wis. 2d at 99.

¶ 11. We do not agree that the existence of a contradictory psychiatric report establishes a new factor requiring sentence modification. To the extent Jackson's conclusions contradict other reports in the record, we find this simply establishes that mental health professionals will sometimes disagree on matters of diagnosis and treatment. Moreover, as the State has pointed out, determinations similar to Jackson's were part of the record as contained in a social worker's letter to the court. We conclude therefore that Jackson's postconviction psychiatric report is not a new factor justifying sentence modification.

¶ 12. We now consider Slagoski's contention that use of the pretrial psychiatric evaluations during sentencing violated his Fifth Amendment right to be free from compelled self-incrimination and his Sixth Amendment right to the assistance of counsel. Relying primarily on Estelle v. Smith, 451 U.S. 454 (1981), Slagoski argues his constitutional rights were violated when, before the pretrial examinations, he was not advised that he had the right to remain silent and that his statements and the reports themselves could later be used against him during the sentencing proceedings. We find no such violations.

¶ 13. In Estelle, the Supreme Court held that the privilege against self-incrimination applies to court-ordered pretrial psychiatric examinations, stating that: "A criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding." Id. at 468. Any statements made by a defendant during such an examination can only be used if the defendant has been advised of his or her Miranda rights and knowingly waives them. Estelle, 451 U.S. at 469. The Court further held that the defendant has a Sixth Amendment right to counsel regarding the decision of whether to cooperate, which requires that the attorney receive notice of the scope, nature and intended uses of the evaluation. Id. at 470-71. Both amendments thus require clear notice to the defendant and counsel regarding any psychiatric evaluation by the prosecution: Id. at 471.

¶ 14. The Supreme Court has since limited its holdings in Estelle to the distinct facts of the case. In Buchanan v. Kentucky, 483 U.S. 402 (1987), the Court found no Fifth or Sixth Amendment violation because defense counsel had joined in the State's motion for the psychiatric examination and the defendant had asserted a mental status defense. Id. at 424—25. After Buchanan, a defendant who initiates a psychiatric evaluation and places mental status in controversy waives the right to remain silent, but not the right to notice. See Powell v. Texas, 492 U.S. 680, 685 (1989); Savino v. Murray, 82 F.3d 593, 604 (4th Cir. 1996); see also State v. Worthington, 8 S.W.3d 83, 91-92 (Mo. 1999) (concluding that Estelle does not bar use of psychiatric reports where defendant requests mental status evaluation and asserts mental status defense).

¶15. It is clear that Slagoski waived his Fifth Amendment rights when, through counsel, he initiated a psychiatric evaluation and placed his mental condition into controversy by entering pleas of not guilty and not guilty by reason of mental disease or defect. Furthermore, his own attorney requested Palermo for the psychiatric evaluation. Because Slagoski commenced the process for the pretrial evaluations and submitted to the examinations, he cannot now claim that its use in sentencing compelled him to testify against himself.

¶16. The main thrust of Slagoski's argument is that he deserved specific notice that his evaluations could be used to establish future dangerousness at sentencing. We are in agreement with the line of cases that hold no such specific notice is required under Estelle and its progeny. See Savino, 82 F.3d at 604-05; Fleenor, 171 F.3d at 1101-02. In Savino, the Fourth Circuit held that there is no Fifth or Sixth Amendment violation where defense counsel had actual notice of the pretrial examinations. Savino, 82 F.3d at 605. When defense counsel is fully aware of the examinations, the Constitution does not require specific notification that a psychiatric evaluation might provide a basis for a future dangerousness argument. Id.; see also Woomer v. Aiken, 856 F.2d 677, 682 (4th Cir. 1988) (noting that defense counsel should be aware that requested psychiatric evaluations might generate unfavorable results and concluding "[i]t is of little moment that counsel was not specifically advised that the evaluation might provide a basis for addressing the issue of [the defendant's] future dangerousness since [the doctor's] opinion on that issue was predicated on the same information that.was necessarily gathered to evaluate [the defendant's] sanity.").

¶ 17. Finally, the recent decision of the Seventh Circuit in Fleenor is also persuasive on the issue. In Fleenor, the defendant challenged the prosecutor's use — in rebuttal at sentencing — of a report generated by a psychiatrist who examined the defendant to determine his sanity at the time of trial. Fleenor, 171 F.3d at 1101. The court construed Estelle as standing for the proposition that "it is . . . unconstitutional [under the Sixth Amendment] to put into evidence the result of a pretrial psychiatric examination the scope of which the lawyer was unaware of." Fleenor, 171 F.3d at 1101. The court reasoned, however, that defense counsel was on constructive notice of what a sanity examination might reveal:

[Fleenor's] lawyer would have known that [the psychiatrist's] determination of Fleenor's mental competence would have implications for the issue of Fleenor's future dangerousness, an issue bound to arise at the sentencing phase of a capital case. In these circumstances, the use of this evidence did not circumvent the defendant's right to counsel.

Id. at 1101-02.

¶ 18. We apply this reasoning to the instant case. We inquire whether the prognosis of dangerousness (a homicidal-suicidal risk) was so far outside the scope of Palermo's original evaluation that it may have blindsided Slagoski's attorney at the sentencing hearing. From the record, it is clear that Slagoski's attorney was well aware of his client's mental and behavioral issues as revealed by his comments when he chose to have Palermo conduct the pretrial evaluation: "You know [Palermo] was involved in the Dahmer case, and I don't think any doctor is more equipped [than] him to deal with that kind of atrocious behavior pattern." We have no doubt that here, as in Fleenor, the defense was reasonably put on notice that the clinical impressions of both doctors would be highly relevant to the issue of future dangerousness, a legitimate sentencing consideration. For this reason, we hold the use of the pretrial psychiatric reports at the sentencing proceeding did not violate Slagoski's right to counsel.

¶ 19. Given the facts that Slagoski's original pleas put his mental competency at issue and that Slagoski's attorney consented to the two mental competency examinations and had actual notice of them, we hold that the use of those reports during sentencing did not violate his right against self-incrimination. Because the prognosis of future dangerousness was within the scope of the competency examination, no Sixth Amendment violation occurred. The original sentence was not based on materially inaccurate information and Jackson's report was not a new factor requiring sentence modification.

By the Court. — Judgment and order affirmed.

       In a statement to police, Slagoski admitted entering N.M.'s bedroom on multiple occasions and confessed to having fantasies about "slashing the throats of [N.M.] and her boyfriend and of killing them." He reported that he also had fantasies about "killing [N.M.] and skinning her and wearing her skin around and posing as her."

       All references to the Wisconsin Statutes are to the 1999-2000 version.

       The prosecutor buttressed her argument by referring to a journal article that attempts to predict which mentally disturbed adolescents may become serial killers. Bradley R. Johnson & Judith V. Becker, Natural Born Killers: The Development of the Sexually Sadistic Serial Killer, 25 J. Am. Acad. PSYCHIATRY & Law 335 (1997). This article, however, is not part of the appellate record.

       Jackson concluded that "Joshua is an emotionally disturbed young man whose psychopathology is directly associated with the idea of abandonment." His commission of the crime was the result of his preoccupation "with union and fusion with [N.M.] which would prohibit her, i.e., as a surrogate, mother from ever abandoning him again." The social worker characterized his behavior as "a psychotic manifestation of his emotional need to merge with his birth mother and his earlier unspeakable reaction to his early life abandonment by her."

         Miranda v. Arizona, 384 U.S. 436 (1966).

       The record includes an affidavit by the attorney who represented Slagoski at the original sentencing hearing. In it, he states that he had no notice that the examination would include issues other than competence. Nor did he have notice that such information would be used at the sentencing proceeding. The attorney then states that had he known these facts, he would have advised Slagoski to assert his Fifth Amendment privilege.