01-2224 State v. Wheat

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“Wheat had a history of controlled substance use; in the past, Merlin had discovered similar items in his possession and had conducted previous searches based on controlled substance use. At that time, Wheat had indicated that these items were from his past drug dealing days but he was no longer engaged in that activity. Wheat had a prior positive urinalysis; Merlin had brought Wheat in for another urinalysis and asked him to wait in the lobby but Wheat fled. Merlin talked the situation over with her supervisors and the search of Wheat’s residence was done at the insistence of the probation officer.

“The trial court found that [police officers] Wilkinson and Falk were there for the sole purpose of securing the premises and while Falk may have gone downstairs at some point, in essence law enforcement just stood around and did not participate in the search. There is support in the record for all of these findings and they are not clearly erroneous.”

Accordingly, because the search was a lawful probation search, a suppression motion asserting that the search was an unlawful law enforcement search would have been unsuccessful and trial counsel’s failure to bring a meritless motion does not constitute deficient performance.

Furthermore, a reasonable probation search is lawful even if premised, in part, on information obtained in violation of the Fourth Amendment by law enforcement.

Judgment affirmed.

Recommended for publication in the official reports.

Dist II, Kenosha County, Bastianelli, J., Snyder, J.

Attorneys:

For Appellant: Steven A. Koch, Elkhorn; Bradley J. Lochowicz, Elkhorn

For Respondent: Robert J. Jambois, Kenosha; Jennifer E. Nashold, Madison