Search and Seizure — probation searches

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Wisconsin Court of Appeals

Criminal

Search and Seizure — probation searches

Where a preliminary breath test was initiated by a probation agent, it was not a police search requiring reasonable suspicion.

“These factors do not convince us that the administration of the PBT to Devries was a police search. The probation agent initiated the search, which was conducted at the probation office, and the officer’s only role was to assist with the actual administration of the PBT. The agent contacted the police and requested assistance with a PBT because the agent detected an odor of alcohol coming from Devries during their probation meeting. Officer Person responded, knowing only that the agent needed him to administer a PBT. After administering the PBT, Person showed the result to the agent, who then placed a probation hold on Devries. It was not until after Person administered the PBT to Devries that he was informed Devries had driven to the office, giving Person for the first time reason to suspect Devries may have committed a law violation and prompting his subsequent police investigation for OWI. Thus, not only did Devries’s agent initiate the search, but, as the State points out, there is no evidence the officer had any purpose for his initial involvement other than to assist the agent in conducting the probation investigation. Contrary to Devries’s contention, other than the actual administration of the PBT, her agent was involved in the search in every way.”

Affirmed.

Recommended for publication in the official reports.

2010AP429-CR State v. Devries

Dist. II, Walworth County, Gibbs, J., Gundrum, J.

Attorneys: For Appellant: Pinix, Matthew S., Milwaukee; For Respondent: Grube, Joshua Patrick, Elkhorn; Wittwer, Jacob J., Madison