State v. Gregory M. Holloway
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COURT OF APPEALS
DECISION
DATED AND FILED
November 9, 2010
A. John Voelker
Acting Clerk of Court of Appeals
Appeal No.
NOTICE
This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
A party may file with the Supreme Court a
petition to review an adverse decision by the
Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Cir. Ct. No. 2008CF4109
2009AP3022-CR
STATE OF WISCONSIN
IN COURT OF APPEALS
DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
GREGORY M. HOLLOWAY,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Milwaukee
County: PAUL R. VAN GRUNSVEN, Judge. Affirmed.
Before Fine, Kessler and Brennan, JJ.
¶1
PER CURIAM. Gregory M. Holloway appeals a judgment
convicting him of possession of THC with intent to deliver, as a second or
subsequent offense, and possession of a firearm by a felon. He argues that the
No. 2009AP3022-CR
circuit court should have suppressed evidence found in his home by his probation
agent. We affirm.
¶2
The relevant facts are undisputed.
Holloway has multiple
convictions for offenses involving drugs and weapons. As pertains to this appeal,
he was convicted in 1991 of possession of a controlled substance and illegal
possession of a firearm.
After serving the initial confinement portion of his
sentence, he was released on extended supervision. Holloway’s probation and
parole agent, who had been supervising him for over a year, received an
anonymous tip that Holloway had a nine millimeter firearm in the bedroom of his
residence and a quantity of marijuana in another room of his residence. Holloway
had tested positive for marijuana approximately three or four months before the
agent received the tip.
The agent detained Holloway and then searched his
residence, finding a weapon, ammunition, marijuana, over $15,000 in cash, a
scale, and other drug paraphernalia.
¶3
Holloway contends the search violated his rights under the
Wisconsin and United States constitutions to be free from unreasonable searches
and seizures. Probation agents do not need probable cause to search the residence
of a person under supervision. State v. Hajicek, 2001 WI 3, ¶36, 240 Wis. 2d 349,
620 N.W.2d 781.
A probation agent “may search a probationer’s residence
without a warrant if the [agent] has reasonable grounds to believe that the
probationer has contraband.” State v. Jones, 2008 WI App 154, ¶9, 314 Wis. 2d
408, 762 N.W.2d 106; see also WIS. ADMIN. CODE § DOC 328.21(3)(a).
Probation agents may conduct warrantless searches of the persons they are
supervising because the agents must ensure “that the probationer observes the
restrictions placed upon the probationer’s liberty during the probation.” Hajicek,
2001 WI 3, ¶36. “‘These restrictions are meant to assure that the probation serves
2
No. 2009AP3022-CR
as a period of genuine rehabilitation and that the community is not harmed by the
probationer’s being at large.’” Id. (citation omitted). The same principles apply to
persons on parole and extended supervision. See Jones, 2008 WI App 154, ¶9.
¶4
We conclude that Holloway’s agent had reasonable grounds to
believe that Holloway had contraband in his residence.
The agent had been
supervising Holloway for over a year pursuant to a drug conviction and a firearm
conviction, and knew that Holloway had several prior convictions involving drugs
and weapons.
The agent also knew that Holloway had tested positive for
marijuana several months earlier while on supervision.
The anonymous tip
received by the agent involved the same illicit activities that Holloway had
previously been involved in, and the tipster was very specific about what the agent
would find and where the agent would find it. These circumstances provided
reasonable grounds for the agent to search Holloway’s residence for contraband.
¶5
Holloway contends that reasonable grounds did not exist because the
agent was unable to verify the information provided by the anonymous tipster. He
points to WIS. ADMIN. CODE § DOC 328.21(7), which lists factors an agent should
consider in assessing whether there are reasonable grounds to believe a person
under supervision has contraband. One of the factors listed is “the reliability of
the information provided by an informant.” § DOC 328.21(7)(b). We reject this
argument. The administrative rule does not require that an agent consider all of
the factors listed in § DOC 328.21(7) to determine whether reasonable grounds
exist for a search; it provides that an agent “shall consider any of the [factors]”
(emphasis added).
The factors include “[t]he activity of the [person under
supervision] that relates to whether the [person] might possess contraband or
might have used … an intoxicating substance” and “[t]he need to verify
compliance with rules of supervision and state and federal law,” all of which
3
No. 2009AP3022-CR
played a role in the agent’s decision to search Holloway’s apartment. See § DOC
328.21(7)(e) and (i). The agent had reasonable grounds to search Holloway’s
apartment under the administrative rules even though the agent was unable to
verify the information provided by the anonymous tipster.
By the Court.—Judgment affirmed.
This opinion will not be published.
809.23(1)(b)5.
4
See WIS. STAT. RULE
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