                                                             2019 WI 97

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:              2017AP1104-CR
COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent,
                            v.
                       Roy S. Anderson,
                                 Defendant-Appellant-Petitioner.

                          REVIEW OF DECISION OF THE COURT OF APPEALS
                          Reported at 384 Wis. 2d 414,921 N.W.2d 528
                                     (2018 – unpublished)

OPINION FILED:         November 15, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         September 4, 2019

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Racine
   JUDGE:              Michael J. Piontek

JUSTICES:
   CONCURRED:          HAGEDORN, J. concurs, joined by ZIEGLER, J.
                       (opinion filed)
  DISSENTED:
  NOT PARTICIPATING:


ATTORNEYS:


       For the defendant-appellant-petitioner, there were briefs
filed by Jay R. Pucek, assistant state public defender. There
was an oral argument by Jay R. Pucek


       For the plaintiff-respondent, there was a brief filed by
Sarah L. Burgundy, assistant attorney general; with whom on the
brief was Joshua L. Kaul, attorney general. There was an oral
argument by Sarah L. Burgundy.
                                                                                   2019 WI 97
                                                                           NOTICE
                                                             This opinion is subject to further
                                                             editing and modification.   The final
                                                             version will appear in the bound
                                                             volume of the official reports.
No.       2017AP1104-CR
(L.C. No.    2015CF1281)

STATE OF WISCONSIN                                       :             IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent,
                                                                                FILED
      v.
                                                                           NOV 15, 2019
Roy S. Anderson,
                                                                              Sheila T. Reiff
              Defendant-Appellant-Petitioner.                              Clerk of Supreme Court




      REVIEW of a decision of the Court of Appeals.                           Affirmed.



      ¶1      ANN        WALSH    BRADLEY,       J.      The      petitioner,         Roy      S.
Anderson      ("Anderson"),            seeks    review       of   an    unpublished,         per

curiam      decision       of    the    court    of   appeals        affirming      both     his

judgment of conviction and the denial of his motion to suppress

evidence.1          He    asserts      that     the   court       of   appeals      erred      in



      1State v. Anderson, No. 2017AP1104-CR, unpublished slip op.
(Wis. Ct. App. Sept. 12, 2018) (per curiam) (affirming the
judgment of the circuit court for Racine County, Michael J.
Piontek, Judge).
                                                                          No.    2017AP1104-CR



determining that law enforcement's search of his person pursuant

to 2013 Wisconsin Act 79 ("Act 79") was valid.

       ¶2        Act 79 allows law enforcement to search a person on a

specified         probation,      parole,    or    extended         supervision        status2

without consent or a warrant if the officer reasonably suspects

that       the    person    is   committing,      is       about    to    commit,      or   has

committed         a    crime.       Generally,         a    full     search      cannot     be

accomplished absent probable cause.3                        However, if a person is

subject to Act 79, a full search may be conducted on the lesser

showing of reasonable suspicion.

       ¶3        Anderson    specifically         contends         that    the       arresting

officer          who   searched     him     did    not       know    that       he    was    on

supervision.           Absent such knowledge, the officer could not have




       See Wis. Stat. §§ 302.043(4) (2015-16) (released inmates
       2

serving risk reduction sentences), 302.045(3m)(e) (inmates
participating   in   the    challenge   incarceration   program),
302.05(3)(c)4. (those participating in the substance abuse
program), 302.11(6m) (inmates on mandatory release to parole),
302.113(7r) (those released to extended supervision for felony
offenses not serving life sentences), 302.114(8g) (felony
offenders   serving   life   sentences   released   to   extended
supervision after a successful petition for release), 304.02(2m)
(inmates subject to special action parole release), 304.06(1r)
(those granted parole from state prisons and houses of
correction), 973.09(1d) (offenders placed on probation).

     All references to the Wisconsin statutes are to the 2015-16
version unless otherwise indicated.

       State v. Marquardt, 2005 WI 157, ¶37, 286 Wis. 2d 204, 705
       3

N.W.2d 878.


                                             2
                                                                   No.     2017AP1104-CR



appreciated that Anderson was subject to search based on Act

79's reduced protections before conducting a warrantless search.4

       ¶4        He argues next that even if the officer had knowledge

of     his       supervision     status,     the    search   was     still    illegal.

Anderson contends that under the totality of the circumstances,

the arresting officer lacked reasonable suspicion that Anderson

was committing, was about to commit, or had committed a crime.

As part of this argument, he asserts that tips received from an

unnamed informant lacked any indicia of reliability and should

be discarded completely from our analysis of the totality of the

circumstances.

       ¶5        We conclude that the circuit court's finding of fact

that       the    officer   in    this     case    had   knowledge    of     Anderson's

supervision status prior to conducting the warrantless search at

issue is not clearly erroneous.                    Next, we determine that the

corroborated tips of the unnamed informant in this case may be

considered in our analysis of the totality of the circumstances,

giving them such weight as they are due.                     Finally, we conclude
that under the totality of the circumstances, the officer in

this case had reasonable suspicion that Anderson was committing,

was about to commit, or had committed a crime.




       In Anderson's brief before this court, he presents the
       4

first issue for our review as: "Did the arresting officer know
that Mr. Anderson was subject to the reduced search provisions
of Act 79 at the time he conducted a warrantless search of Mr.
Anderson's person?"


                                             3
                                                                      No.     2017AP1104-CR



      ¶6     Accordingly, we affirm the decision of the court of

appeals.

                                             I

      ¶7     On    August   25,    2015,       Officer     Michael      Seeger      of   the

Racine police department was driving an unmarked police car in

the City of Racine.            He testified that within the two-and-a-

half-week period prior, he had received "two separate tips from

a reliable and credible informant about Mr. Anderson selling

illegal narcotics" in an alley behind a particular address where

Anderson     was   purported      to    have      been    living.       No     additional

information regarding this unnamed informant is provided in the

record.

      ¶8     Officer Seeger observed Anderson riding a bicycle on a

sidewalk     in    violation      of    a    city      ordinance.5          After    seeing

Anderson, Officer Seeger performed a U-turn and sought to make

contact     with    him.       Officer         Seeger     testified         that    "[u]pon

Anderson seeing us, he immediately looked over his left shoulder

and   identified      us.      He       also      knows    me    from       prior    police
contacts."         After    seeing          and   identifying         Officer       Seeger,

Anderson made a right turn down a nearby alley, looked over his

shoulder several times, and removed one of his hands from the

bicycle's     handlebars     and       placed     it    into    his   pocket,       leading

Officer Seeger to believe that "he was concealing an item within

his pocket."


      5   See Racine, Wis., Mun. Code § 66-707 (2015).


                                             4
                                                                     No.        2017AP1104-CR



       ¶9    Anderson's movements concerned Officer Seeger.                                The

officer      testified        that      "[b]ased       on    my        training            and

experience . . . people           involved       in    criminal       activity           will

attempt to hide or destroy or conceal illegal narcotics when

they have police interaction or being approached by police."                               He

also     observed    that     Anderson     was     located      in    a        "high     drug

trafficking area within the City of Racine."

       ¶10   Officer     Seeger      pursued    Anderson     and     ordered         him    to

stop, and Anderson complied.             Anderson subsequently stepped off

of     his   bicycle    and    Officer     Seeger      performed           a    search      of

Anderson's person.          In his testimony before the circuit court,

Officer Seeger indicated that he performed this search pursuant

to his authority under Act 79.

       ¶11   The search of Anderson turned up two individual bags

of crack cocaine, over $200 in cash, and two cell phones.                                  No

drug     paraphernalia      was      located     on    Anderson,      indicating           to

Officer Seeger that Anderson was engaged in selling the crack

cocaine.
       ¶12   This    contact      on   August    25,    2015,      was         not   Officer

Seeger's     first     experience      with    Anderson.        Specifically,              the

officer was familiar with Anderson because he had previously

arrested Anderson for possession with intent to deliver cocaine

in 2012.      Officer Seeger further testified that even prior to

that, Anderson's name had come to his attention "through other

cooperative citizens in 2012."




                                          5
                                                                      No.     2017AP1104-CR



      ¶13       Additionally,        Officer Seeger testified that he knew

Anderson had been released on "probation" on March 17, 2015.6

His   testimony         further      indicated      that    "[o]nce    [Anderson]       was

released on probation, I ran him out.                       I did a record check of

him and knew that he felony under Act 79 [sic]."                                   However,

Officer        Seeger   did    not    know    how    long    Anderson's      "probation"

period extended.

      ¶14       As a result of Officer Seeger's search of Anderson,

the   State      charged      Anderson       with    possession    of       cocaine    with

intent to deliver as a second and subsequent offense.7                             Anderson

moved     to    suppress      the    evidence       obtained   through       the   search,

arguing that Officer Seeger lacked reasonable suspicion that he

was committing, was about to commit, or had committed a crime.

Accordingly, in Anderson's view, Officer Seeger lacked a legal

basis to search him pursuant to Act 79.

      ¶15       The     circuit      court      denied      Anderson's        motion     to

suppress.         Initially, it found as a fact that Officer Seeger

knew that Anderson was on supervision from the previous time he
arrested Anderson for possession with intent to deliver.



      6We observe that Officer Seeger used the word "probation"
in his testimony to describe Anderson's supervision status.
Although Anderson was on "extended supervision" and not
"probation," this discrepancy does not affect our analysis. See
G.G.D. v. State, 97 Wis. 2d 1, 3 n.2, 292 N.W.2d 853 (1980)
(acknowledging that the terms "probation" and "supervision" are
sometimes used interchangeably).
      7   See Wis. Stat. §§ 961.41(1m)(cm)1g., 961.48(1)(b).


                                              6
                                                                         No.     2017AP1104-CR



       ¶16   Further,       it   concluded         that       Officer    Seeger     had     the

requisite      reasonable        suspicion        to     justify      the      search.       It

reached      this    determination          based        on    its      findings     of     the

"properly proven facts" that Anderson rode his bicycle away from

police, looked back at Officer Seeger, and placed his hand in

his pocket.         The circuit court also observed that "it's a high

drug area in terms of drug sales and purchases" and that Officer

Seeger    "had      prior    information          that    the    defendant        was     still

involved in sales."

       ¶17   Anderson appealed and the court of appeals affirmed.

The court of appeals concluded that "Seeger had sufficient basis

to believe that Anderson was subject to Act 79."                                   State v.

Anderson, No. 2017AP1104-CR, unpublished slip op., ¶9 (Wis. Ct.

App.   Sept.     12,    2018)        (per   curiam).            As    support      for     this

conclusion, the court of appeals observed facts indicating that

"Seeger was familiar with Anderson, having arrested him before

for possession of cocaine."                 Id.    Further, Officer Seeger "knew

that Anderson had been convicted of a felony and released on
community supervision on March 17, 2015.                             Although Seeger did

not know the length of Anderson's supervision, it was reasonable

to presume that it lasted for a period beyond the date of the

search . . . ."        Id.

       ¶18   The court of appeals also determined that "Seeger had

the requisite reasonable suspicion to trigger a lawful Act 79

search."      Id., ¶10.          In reaching this conclusion the court of

appeals pointed to the following facts:                          (1) the tips Officer
Seeger    received     from      a    confidential            informant     advising       that
                                             7
                                                                    No.       2017AP1104-CR



Anderson was selling drugs; (2) Anderson's history of possessing

drugs; (3) Anderson's presence in a high drug trafficking area;

and   (4)   Anderson's        behavior,     "which       included   turning       down   a

nearby alley, repeatedly glancing backwards, and taking his left

hand off the bicycle's handlebars and placing it into his front

jacket      pocket,      as     though     he    was      attempting      to      conceal

something."        Id.

                                           II

      ¶19     This case requires us to review the court of appeals'

determination that the circuit court correctly denied Anderson's

motion   to    suppress.           In   reviewing    a    ruling    on    a    motion    to

suppress, this court applies a two step standard of review.

State v. Eason, 2001 WI 98, ¶9, 245 Wis. 2d 206, 629 N.W.2d 625.

      ¶20     First, we will uphold the circuit court's findings of

fact unless they are clearly erroneous.                    Id.     A finding of fact

is clearly erroneous if it is against the great weight and clear

preponderance       of    the      evidence.     Metro.      Assocs.      v.     City    of

Milwaukee,     2018      WI   4,    ¶62,   379   Wis. 2d 141,       905       N.W.2d 784.
Second, we review the application of constitutional principles

to those facts independently of the decisions rendered by the

circuit court and court of appeals.                 Eason, 245 Wis. 2d 206, ¶9.

                                           III

      ¶21     We    begin     by    addressing      the    threshold          inquiry    of

whether Officer Seeger had knowledge of Anderson's supervision

status so as to justify an Act 79 search.                           Subsequently we

address whether under the totality of the circumstances Officer
Seeger had reasonable suspicion that Anderson was committing,
                                            8
                                                                     No.     2017AP1104-CR



was about to commit, or had committed a crime.                       In our review of

this second issue, we consider the extent to which the unnamed

informant's tips factor into our analysis.

      ¶22    Act    79     created     several     statutes          authorizing      law

enforcement officers to search individuals on certain community

supervision statuses, including those on probation and parole,

as   well   as     those    recently    released       from    prison      on    extended

supervision.        As relevant here, Act 79 provides that a person

released on extended supervision for a felony offense is subject

to search under the following conditions:

      A person released under this section, his or her
      residence, and any property under his or her control
      may be searched by a law enforcement officer at any
      time during his or her period of supervision if the
      officer reasonably suspects that the person is
      committing, is about to commit, or has committed a
      crime or a violation of a condition of release to
      extended supervision.   Any search conducted pursuant
      to this subsection shall be conducted in a reasonable
      manner and may not be arbitrary, capricious, or
      harassing.   A law enforcement officer who conducts a
      search pursuant to this subsection shall, as soon as
      practicable after the search, notify the department.
Wis. Stat. § 302.113(7r).

      ¶23    In    essence,    this     statute   lowers       the    legal      standard

required for a law enforcement officer to perform a search of a

suspect     if    that     suspect    is   on   one     of    Act     79's      specified

supervision       statuses.          Generally,    a    full    search       cannot    be

accomplished without a determination of probable cause.                             State

v. Marquardt, 2005 WI 157, ¶37, 286 Wis. 2d 204, 705 N.W.2d 878.




                                           9
                                                                   No.   2017AP1104-CR



     ¶24    On the other hand, an investigatory or Terry stop,8

which     typically    involves       only    temporary         questioning    and    a

limited    search9    and   constitutes       but    a    minor    infringement       on

personal    liberty,       can   be    utilized      if     law    enforcement       has

reasonable suspicion that a crime has been committed, is being

committed, or is about to be committed.                   State v. Young, 2006 WI

98, ¶20, 294 Wis. 2d 1, 717 N.W.2d 729.                   Thus, Act 79 allows for

a   full    search    of    those     subject       to    its     provisions     where

reasonable suspicion is present, while a person not subject to

Act 79 would be subject to only a Terry stop under the same

circumstances.




     8   See Terry v. Ohio, 392 U.S. 1 (1968).
     9 Terry permits a limited "protective search" in certain
circumstances.

     [W]here a police officer observes unusual conduct
     which leads him reasonably to conclude in light of his
     experience that criminal activity may be afoot and
     that the persons with whom he is dealing may be armed
     and presently dangerous, where in the course of
     investigating this behavior he identifies himself as a
     policeman and makes reasonable inquiries, and where
     nothing in the initial stages of the encounter serves
     to dispel his reasonable fear for his own or others'
     safety, he is entitled for the protection of himself
     and others in the area to conduct a carefully limited
     search of the outer clothing of such persons in an
     attempt to discover weapons which might be used to
     assault him.

State v. Limon, 2008 WI App 77, ¶27, 312 Wis. 2d 174, 751
N.W.2d 877 (quoting Terry, 392 U.S. at 30); see also Wis. Stat.
§ 968.25.


                                         10
                                                                    No.     2017AP1104-CR



      ¶25      Anderson asserts that Officer Seeger lacked knowledge

that he was on supervision so as to subject him to Act 79's

provisions.        Specifically,      he    contends       that     Officer    Seeger's

knowledge that he had been arrested in 2012 for possession with

intent    to    deliver    coupled    with        the     knowledge       gleaned    from

Officer     Seeger's     record   check     of        Anderson    that    he   had   been

released on "probation" on March 17, 2015, fails to support a

conclusion that Anderson was subject to Act 79 on August 25,

2015, the date of the search.

      ¶26      We disagree with Anderson.              The circuit court found as

a fact that Officer Seeger "had personal information in that he

had   arrested     the    defendant   in        the    past   for   possession       with

intent to deliver.          He knew that [Anderson] was on parole or

probation . . . or extended supervision from that arrest."

      ¶27      The circuit court's finding of fact in this regard is

supported by the evidence presented at the hearing on Anderson's

motion to suppress.         First and foremost in our determination is

Officer Seeger's testimony that he performed a record check of
Anderson to determine his supervision status.                            The testimony

reflects the following exchange:

      [THE COURT]: And when you say Act 79, were you aware
      was he on probation on August 25th, 2015?

      [OFFICER SEEGER]:    Yeah.   Once he was released on
      probation, I ran him out. I did a record check of him
      and knew that he felony under Act 79 [sic].

      [THE COURT]:   Do you know what period his probation
      was, when it ended or anything like that? Or did you
      just know in August that he was on probation?


                                           11
                                                                         No.        2017AP1104-CR


      [OFFICER SEEGER]:   No.  I believe I put in my report
      the date he was released on supervision . . . .

      I knew Mr. Anderson was released on probation on March
      17, 2015 which is after the date that Act 79 went into
      effect.

      [THE COURT]:          Do you know how long his probation was?

      [OFFICER SEEGER]:            That I do not know.
      ¶28     This testimony strongly supports the circuit court's

finding      that      Officer       Seeger        knew     that      Anderson         was       on

supervision       so   as     to   subject     him    to     Act   79.         Although      the

grammar      of   Officer      Seeger's      testimony       could      be     clearer,      the

thrust of the sentence, "I did a record check of him and knew

that he felony under Act 79," is apparent——the officer conducted

a   record    check     and    ascertained         Anderson's         supervision          status

from that check.

      ¶29     Officer       Seeger      further     testified      that        he    had    on   a

prior occasion in 2012 arrested Anderson for possession with

intent to deliver crack cocaine, which is a felony offense.                                  See

Wis. Stat. § 961.41(1m)(cm).                  This personal knowledge provides

further information to bolster the determination made from the

record check that Anderson had been convicted of a felony and

was subject to Act 79.

      ¶30     Accordingly,         we    conclude         that   the     circuit        court's

finding of fact that the officer in this case had knowledge of

Anderson's        supervision           status       prior       to      conducting          the

warrantless search at issue is not clearly erroneous.




                                              12
                                                               No.     2017AP1104-CR



                                       IV

     ¶31   We turn next to the determination of whether under the

totality   of   the   circumstances      Officer      Seeger    had     reasonable

suspicion that Anderson was committing, was about to commit, or

had committed a crime.10

     ¶32   "The     Fourth   Amendment       permits    brief        investigative

stops . . . when a law enforcement officer has 'a particularized

and objective basis for suspecting the particular person stopped

of criminal activity.'"       Navarette v. California, 572 U.S. 393,

396 (2014) (quoting United States v. Cortez, 449 U.S. 411, 417-

18 (1981)).     In determining whether reasonable suspicion exists

to justify such a stop, we ask "whether the facts of the case

would warrant a reasonable police officer, in light of his or

her training and experience, to suspect that the individual has

committed,    was   committing,   or    is    about    to   commit      a   crime."

State v. Post, 2007 WI 60, ¶13, 301 Wis. 2d 1, 733 N.W.2d 634.

     ¶33   Reasonable suspicion is a fairly low standard to meet.

Eason, 245 Wis. 2d 206, ¶19.           "Although it is not possible to
state precisely what the term reasonable suspicion means, it is

a 'commonsense nontechnical conception . . . that deal[s] with

     10Although Anderson phrases his argument in terms of the
constitutional standard for reasonable suspicion, we observe
that the reasonable suspicion standard is also part and parcel
of an analysis of whether Act 79 applies.   To explain, Act 79
applies to allow a search of those on a specified supervision
status "if the officer reasonably suspects that the person is
committing, is about to commit, or has committed a crime or a
violation of a condition" of supervision.          Wis. Stat.
§ 302.113(7r) (emphasis added).


                                       13
                                                                    No.    2017AP1104-CR



'the factual and practical considerations of everyday life on

which reasonable and prudent men, not legal technicians, act.'"

Id.   (quoting    Ornelas       v.   United       States,    517    U.S.     690,     695

(1996)).     "Such reasonable suspicion must be based on 'specific

and   articulable       facts     which,        taken    together    with     rational

inferences       from     those      facts,         reasonably       warrant        that

intrusion.'"       State v. Richardson, 156 Wis. 2d 128, 139, 456

N.W.2d 830    (1990)     (quoting      Terry       v.    Ohio,     392    U.S.   1,    21

(1968)).     A determination of reasonable suspicion is made based

on the totality of the circumstances.                   Post, 301 Wis. 2d 1, ¶14.

      ¶34    The totality of the circumstances here consists of the

following facts as found by the circuit court.11                      First, Officer

Seeger received two tips from an unnamed informant indicating

that Anderson was selling cocaine in the alleyway behind the

specific address where he was found and purported to be living.

Second, Officer Seeger had arrested Anderson in the past for

possession with intent to deliver.                 Third, Anderson was located

in a high drug trafficking area.                 Fourth and finally, Anderson's
behavior consisted of riding his bicycle down an alley away from

police, turning around to look at Officer Seeger, and removing

one of his hands from the bicycle's handlebars and placing it in

his pocket.



       Anderson does not contend that any of these factual
      11

findings are clearly erroneous.    Instead, he asserts that the
legal conclusion that the facts as found constitute reasonable
suspicion of criminal activity is in error.


                                           14
                                                                  No.    2017AP1104-CR



                                         A

      ¶35   We consider initially the extent to which the unnamed

informant's tips factor into our analysis.                        Anderson asserts

that the unnamed informant's tips must not be included at all in

the calculus of reasonable suspicion under the totality of the

circumstances because "the record is devoid of any evidence as

to the alleged informant's veracity or basis of knowledge."                         We

have not squarely addressed such an argument in our prior cases.

      ¶36   Information       gleaned      from     an    informant's      tip     may

justify     police     action    in     some      circumstances.          State     v.

Rutzinski, 2001 WI 22, ¶17, 241 Wis. 2d 729, 623 N.W.2d 516.

Such tips vary greatly in reliability.                   Before police act on a

tip, they must consider its reliability and content.                        Id.     To

justify     police     action,    a     tip     should     exhibit      indicia    of

reliability, and due weight must be given to (1) the informant's

veracity and (2) the informant's basis of knowledge.                        Id., ¶18

(citing Illinois v. Gates, 462 U.S. 213, 230 (1983)).

      ¶37   This court has recognized that different factors may
inform a determination of an informant's veracity.                      See State v.

Miller, 2012 WI 61, ¶31 n.18, 341 Wis. 2d 307, 815 N.W.2d 349.

Accordingly,     we    have     observed       three     categories      into    which

informants    generally       fall:     citizen        informants,      confidential

informants, and anonymous informants.               Id.

      ¶38   Citizen informants are generally considered among the

most reliable.        Id. (citing State v. Kolk, 2006 WI App 261, ¶12,

298   Wis. 2d 99,      726    N.W.2d 337).         These    are    informants      who


                                         15
                                                                           No.    2017AP1104-CR



happen upon a crime or suspicious activity and report it to

police.       Id.

      ¶39     A     confidential        informant      is    often    a     person       with    a

criminal past who assists police in identifying and catching

criminals.          Such an informant may be more reliable if he or she

has provided truthful information in the past.                         Id.

      ¶40     Finally, an anonymous informant is one whose identity

is   unknown        even    to    the   police.       This    type     of        informant      is

considered reliable if police are able to corroborate details in

the informant's tip.              Id.

      ¶41     Here,        the    record     provides       very    little        information

regarding      the     informant        on    whose    information          Officer       Seeger

relied.       Officer Seeger testified that he "received two separate

tips from a reliable and credible confidential informant about

Mr. Anderson selling illegal narcotics.                      Both tips were received

within    a    two    and     a   half     week     period   from     the        date    of   the

incident."          The record contains no other information indicating

the informant's identity or whether the informant had provided
reliable information to police in the past.

      ¶42     Officer        Seeger's        description      of     the     tipster       as    a

"reliable and credible confidential informant" indicates that

the officer had some familiarity with the informant.                                    However,

the extent of any familiarity or previous assistance to police

is not in the record.              Additionally, the record is devoid of any

information regarding the nature and extent of the informant's

knowledge,          whether       direct       or     indirect.              Without          this
information, the court cannot determine the tips' reliability.
                                               16
                                                                 No.   2017AP1104-CR



Officer Seeger's bare assertion that the tipster was "reliable

and credible" is not enough.

       ¶43   Therefore, the tips standing alone do not provide the

requisite reasonable suspicion for Officer Seeger to conduct a

search pursuant to Act 79.          This does not mean, however, that we

may not consider the tips at all in our analysis.

       ¶44   Indeed, the tips were corroborated by multiple facts

in the record.          The tipster provided an address where Anderson

was alleged to be conducting drug sales in a back alley, and

Anderson was found in the back alley behind that address——where

he was purported to have been living and which was in an area

known to be used for drug trafficking.

       ¶45   Further corroborating the tips was Anderson's behavior

upon   seeing      Officer    Seeger.      Officer      Seeger    testified     that

"[u]pon Anderson seeing us, he immediately looked over his left

shoulder and identified us.             He also knows me from prior police

contacts."        When Anderson noticed Officer Seeger's presence, he

turned down an alley, glanced back at the officer several times,
and put his hand in his pocket, appearing to the officer that

"he was concealing an item within his pocket."                    Such movements

were   significant       to   Officer     Seeger    because,     in    his   words,

"[b]ased     on    my   training   and    experience,      I   know    individuals

involved     in   criminal    activity     such    as   possession     of    illegal

narcotics will be overly curious about police's position and

will also attempt to evade them as they attempt to approach."

       ¶46   Because the tips were corroborated, we do not discount
them entirely in our analysis.            See State v. Sherry, 2004 WI App
                                         17
                                                                       No.       2017AP1104-CR



207,   ¶19,     277    Wis. 2d 194,           690   N.W.2d 435       (explaining          that

police       corroboration         of    an    anonymous       tip     gives       the    tip

recognized "indicia of reliability").                        Our lack of knowledge

about the tips' source is a question of the weight we give them

in   our     analysis,       not   of    whether      we    exclude     them       from   our

analysis completely.

       ¶47    Accordingly, we determine that the corroborated tips

of the unnamed informant in this case may be considered in our

analysis of the totality of the circumstances, giving them such

weight as they are due.

                                               B

       ¶48    Anderson        argues     next       that     the     totality        of    the

circumstances         does     not      constitute         reasonable      suspicion        of

criminal activity.            His argument is unpersuasive.

       ¶49    Again, the totality of the circumstances here consists

of (1) the informant's tips that Anderson was selling drugs in

the alleyway behind a particular address at which Anderson was

purported to be living; (2) Officer Seeger's past arrest of
Anderson; (3) Anderson's presence in the alleyway behind the

address      given    by     the   informant,        which     was    in     a    high    drug

trafficking      area;       and   (4)   Anderson's         behavior,      consisting       of

riding down an alley away from Officer Seeger, looking back at

the officer several times, and placing his hand in his pocket.

Although under the particular facts of this case none of these

factors standing alone would support reasonable suspicion, when

viewed in combination, Officer Seeger's suspicion that Anderson


                                              18
                                                                      No.      2017AP1104-CR



had committed, was committing, or was about to commit a crime

was reasonable.

      ¶50   When combined with the information known to Officer

Seeger    about    Anderson's        history,     Anderson's        behavior         creates

reasonable        suspicion         that   criminal          activity         was     afoot.

Anderson's movements after he noticed Officer Seeger give rise

to a reasonable inference that Anderson was trying to conceal

something from the officer.

      ¶51   Further, Officer Seeger had information from the tips

he received indicating that Anderson was selling drugs in the

alley behind the address where he was observed.                          Officer Seeger

knew that Anderson had engaged in selling drugs in the past,

because he personally had arrested Anderson for just such an

offense.     Although insufficient to support reasonable suspicion

on its own, consideration of this information in the totality of

the circumstances is consistent with case law indicating that

evidence    of    prior    convictions       or    arrests      can      be    taken    into

account in our analysis.              See State v. Lange, 2009 WI 49, ¶33,
317      Wis. 2d 383,         766     N.W.2d 551        (citing          2     Wayne      R.

LaFave, Search and Seizure § 3.2(d), at 58–59 & nn.134–35 (4th

ed.   2004) (collecting         cases      holding     that    "a     suspect's        prior

convictions and prior arrests are not barred from consideration

on the issue of probable cause")).

      ¶52   We     acknowledge        that      none    of     Anderson's           observed

behaviors    was       illegal.       However,     in     State     v.       Waldner,    206

Wis. 2d 51,      57,    556   N.W.2d 681        (1996),      this   court       determined
that "[t]he law allows a police officer to make an investigatory
                                           19
                                                                 No.      2017AP1104-CR



stop based on observations of lawful conduct so long as the

reasonable inferences drawn from the lawful conduct are that

criminal   activity    is    afoot."12         Even    if    officers     observe       no

unlawful   conduct,    it    may    be     "poor     police    work"      to    fail    to

investigate.    Id. at 61.            In this case, the totality of the

circumstances   gave        Officer      Seeger       reasonable       suspicion        of

criminal   activity    despite       the      fact    that    none   of    Anderson's

observed behaviors alone was illegal.


    12 The Waldner court illustrated its point using the facts
at issue in Terry v. Ohio, 392 U.S. 1, the United States Supreme
Court's seminal case on investigatory stops. State v. Waldner,
206 Wis. 2d 51, 59-60, 556 N.W.2d 681 (1996). It observed:

    The   Terry   court   upheld   the  legality   of   an
    investigative stop by a police officer who observed
    the defendants repeatedly walk back and forth in front
    of a store window at 2:30 in the afternoon, and then
    confer with each other. The officer suspected the two
    of contemplating a robbery and stopped them to
    investigate further.

    Walking back and forth in front of a store on a public
    sidewalk is perfectly legal behavior.     Nonetheless,
    reasonable inferences of criminal activity can be
    drawn from such behavior.     As this court noted in
    Jackson, "the suspects in Terry 'might have been
    casing the store for a robbery, or they might have
    been window-shopping or impatiently waiting for a
    friend in the store.'"        Nonetheless, the Court
    concluded that the investigative stop of the Terry
    defendants was permissible because, based on the
    police officer's training and experience, their lawful
    conduct gave rise to a reasonable inference that
    criminal activity was afoot.        In short, Terry's
    conduct though lawful was suspicious.

Id. (quoting State          v.     Jackson,      147    Wis. 2d 824,           835,    434
N.W.2d 386 (1989)).


                                         20
                                                                       No.     2017AP1104-CR



    ¶53       Anderson's reliance on State v. Gordon, 2014 WI App

44, 353 Wis. 2d 468, 846 N.W.2d 483, does not change the result.

In Gordon, the arresting officer testified that he was on patrol

in a high crime area where one of his duties was to "ferret out

'[i]nstances where individuals are carrying guns illegally.'"

Id., ¶¶3-4.

    ¶54       After    Gordon      recognized        the    officer's        presence      and

reached   his       hand    toward    his    front      pants     pocket     in    what    the

officer characterized as a "security adjustment,"13 the officer

stopped Gordon.            Id., ¶9.     Upon a frisk of Gordon, the officer

located   a    concealed       weapon       and   several        individually       packaged

baggies of drugs.           Id., ¶6.

    ¶55       The    court    of     appeals      determined       that    the     arresting

officer lacked reasonable suspicion to stop Gordon.                               Id., ¶18.

It determined that although Gordon's security adjustment could,

"given    additional         facts     (such      as,      for    example,        flight   or

attempted flight), support an objective 'reasonable suspicion,'

the additional facts here——high crime area and recognizing the
police car as a police car——are far too common to support the

requisite individualized suspicion here."                        Id., ¶17.


    13 A "security adjustment" is "basically a conscious or
unconscious movement that an individual does when they're
confronted   by   law    enforcement  when   they're  typically
carrying . . . a weapon, and it's done either by the individual
placing a hand over the pocket or a waistband where the gun
might be, just to make sure that the weapon is still there and
that it's secure."    State v. Gordon, 2014 WI App 44, ¶9, 353
Wis. 2d 468, 846 N.W.2d 483.


                                             21
                                                                     No.    2017AP1104-CR



       ¶56   Anderson contends that his reaching into his pocket is

analogous      to      Gordon's       security         adjustment     and      is      thus

insufficient to establish reasonable suspicion in concert with

the other factors present:             high crime area and recognition of a

police car.         But the Gordon court was careful to observe that

the result may have been different if other factors were present

in the totality of the circumstances.                   Specifically, it wrote:

       Without more (such as, for example and not by way of
       limitation, the officers being aware that the person
       they wanted to stop was either wanted on a warrant or
       was known to have committed gun crimes), these
       findings, either taken separately or added together,
       do not equal the requisite objective "reasonable
       suspicion" that "criminal activity" by Gordon was
       "afoot."
Id., ¶14.

       ¶57   In     this     case,   the    "more"     referenced     by    the     Gordon

court is present.             Officer Seeger was aware that Anderson was

known to have committed drug crimes——the officer had, after all,

previously arrested Anderson for such a crime.                       Additionally, in

this    case      we    consider      the    tips       Officer      Seeger    received

indicating Anderson was selling drugs at a specific location,

corroborated by Anderson's presence at that specific location

and    his   behavior        upon    recognizing        law    enforcement.         These

factors that were not present in Gordon tip the balance.

       ¶58   We therefore conclude that under the totality of the

circumstances, the officer in this case had reasonable suspicion

that   Anderson        was    committing,        was   about    to   commit,      or   had
committed a crime.


                                            22
                                                                      No.     2017AP1104-CR



                                           V

       ¶59     In sum, we conclude that the circuit court's finding

of     fact    that    the   officer     in     this    case       had      knowledge    of

Anderson's          supervision    status        prior        to      conducting        the

warrantless search at issue is not clearly erroneous.                            Next, we

determine that the corroborated tips of the unnamed informant in

this case may be considered in our analysis of the totality of

the circumstances, giving them such weight as they are due.

Finally,       we     conclude    that        under     the        totality      of     the

circumstances, the officer in this case had reasonable suspicion

that    Anderson      was    committing,       was    about    to     commit,     or    had

committed a crime.

       ¶60     Accordingly, we affirm the decision of the court of

appeals.

       By     the   Court.—The    decision      of     the    court      of   appeals    is

affirmed.




                                          23
                                                                        No.    2017AP1104-CR.bh




      ¶61       BRIAN        HAGEDORN,         J.       (concurring).          I     join       the

majority opinion in full.                      It answers the questions presented

consistent with the law.

      ¶62       I    write       separately,         however,      because     both       parties

appeared        to     presume      in     their         briefing    that      an     officer's

knowledge of a person's Act 79 status is a threshold question to

the validity of any Act 79 search.                            We need not and do not

answer      that      question         today    because      Officer       Seeger        knew   of

Anderson's          Act     79    status;       the      circuit     court     made      factual

findings to this effect, and the record supports those findings.

But this issue may come up again, and a more careful analysis of

how       the       Fourth       Amendment          interacts       with      the     statutory

requirements is essential to addressing this in a sound manner.

      ¶63       Wisconsin        law    has     long      granted    broad     authority        to

Department of Corrections employees to search offenders under

the Department's custody and supervision.                           See Wis. Admin. Code

§ DOC 328.22(2) (Mar. 2017) (permitting searches when ordered by
the court, with consent, and "[w]hen an employee has reasonable

grounds to believe the offender possesses contraband or evidence

of    a     rule       violation").                  Those   under      the     Department's

"supervision" include "offenders on probation, parole, extended

supervision, or other statuses as authorized by court order or

statute."           See Wis. Admin. Code § DOC 328.03(10).                           Our cases

have sanctioned this broad searching authority because those on

supervision          have     uniquely      diminished        expectations          of    privacy
under the Fourth Amendment.                         See, e.g., State v. Griffin, 131

                                                    1
                                                                            No.   2017AP1104-CR.bh


Wis. 2d 41, 60–62, 388 N.W.2d 535                       (1986) (holding warrantless

search    of    probationer's             residence          by     probation          officer       was

permissible), aff'd by Griffin v. Wisconsin, 483 U.S. 868, 880

(1987) (affirming on narrower grounds).

    ¶64        In    2013       Wisconsin      Act     79,    the     legislature            extended

this broad searching authority to law enforcement, raising new

questions      not        previously       addressed          in    our     Fourth        Amendment

canon.    Among them, to what extent do officers need to know a

person has an Act 79 status?                   Whereas probation agents and other

similar    Department            employees      would         almost      assuredly           know    a

person    they           wish     to     search        is     under         the        Department's

supervision,         the        same     assumption          does     not     hold       with        law

enforcement officers.                  The question for another day is what Act

79 and the Fourth Amendment have to say about this.                                             While

Wisconsin      is        not    alone     in   granting           such    authority          to     law

enforcement, this kind of policy is fairly new and uncommon,

leaving us with little on-point legal authority with which to

work, persuasive or otherwise.                    I write separately to sketch out
some principles that should govern any future analysis.

    ¶65        In my view, adoption of a threshold officer-knowledge

requirement         as    a    precondition       to    the        validity       of    an    Act    79

search should be undertaken, if at all, only with a careful

rooting in the relevant law——namely, the text of Act 79 and

Fourth    Amendment             jurisprudence        regarding           those     on        extended

supervision-like statuses.

    ¶66        Act 79 itself does not contain an officer-knowledge
requirement.             Instead, it simply empowers law enforcement to

                                                2
                                                                      No.    2017AP1104-CR.bh


search those with an Act 79 status.                           But the statute is not

without    protective       boundaries.            Rather      than    protecting          those

being   searched       by    insisting        on    a    certain      level     of    officer

knowledge     regarding      their      status,         Act   79    requires    reasonable

suspicion and mandates that all searches "be conducted in a

reasonable     manner       and   may      not     be    arbitrary,         capricious,      or

harassing."     Wis. Stat. § 302.113(7r) (2017-18).

     ¶67     These statutory requirements implicitly suggest some

level   of    advance       knowledge        by    the    searching         officer.        For

example, an officer targeting a neighborhood troublemaker who

the officer has no reason to think is subject to Act 79 would

seem to be acting in an arbitrary, capricious, or harassing

manner.      Similarly, this language would likely preclude random

searches of individuals in the hopes of catching someone with an

Act 79 status (maybe the very definition of "arbitrary").                                   And

any search of someone not subject to Act 79 would of course find

no sanction in the text of Act 79.                       But the inquiry under the

statute's language is focused on the reasonableness and nature
of   the     search    itself,       and     again,       that       language       does    not

prescribe       a      separate         officer-knowledge               requirement          to

substantiate the validity of every search.

     ¶68     The follow-up question, then, is whether the Fourth

Amendment requires more than the statute commands.                              Any answer

would surely need to grapple with an important issue the parties

did not sufficiently address:                     what level of Fourth Amendment

protection     do     individuals       on    probation,           parole,    and    extended
supervision have?

                                              3
                                                                   No.    2017AP1104-CR.bh


      ¶69   At least two cases are particularly instructive.                             In

2006, the United States Supreme Court upheld a search conducted

pursuant    to    a   California        statute         authorizing       suspicionless

searches of parolees by law enforcement.                     Samson v. California,

547 U.S. 843, 846-47 (2006).             The Court grounded its decision in

the   Fourth     Amendment   principle           that    parolees        "have    severely

diminished expectations of privacy by virtue of their status

alone."     Id. at    852.        It    is    worth     noting     that    California's

suspicionless search provision is far more intrusive than Act

79, which requires reasonable suspicion as a precondition to a

law   enforcement     search.          More      recently,    resting       in    part   on

Samson, this court upheld a condition of extended supervision

that authorized a law enforcement search at any time for any

reason.     State v. Rowan, 2012 WI 60, ¶¶1, 4, 341 Wis. 2d 281,

814 N.W.2d 854.        In reaching our conclusion, we adopted and

applied Samson's expectations of privacy rationale to those on

extended supervision:        "As the Samson Court made clear, persons

in Rowan's position have diminished privacy expectations, and
the State has greater interests in supervising them to prevent

criminal conduct, and those two facts make searches reasonable

that would otherwise not be . . . ."                   Id., ¶14.

      ¶70   Because    the   text        of      Act    79   does    not     contain     a

threshold officer-knowledge requirement, any judicial imposition

of that precondition must stem from the Fourth Amendment, and

consequently,      should    be    rooted         in    proper      Fourth       Amendment

doctrine rather than analogies to general principles.



                                             4
                                                                        No.   2017AP1104-CR.bh


    ¶71     In short, Act 79 embraces a new policy that raises new

questions——among          them,       whether       and   when    the    Fourth    Amendment

might   demand      more       from    law   enforcement          than    Act    79     already

requires.        While         today's    decision         leaves       these   issues      for

another     day,        such    questions         should     be     analyzed       by     close

reference to the text of Act 79 itself and faithful application

of Fourth Amendment principles to those with an Act 79 status.

    ¶72     I      am     authorized         to      state       that    Justice        ANNETTE

KINGSLAND ZIEGLER joins this concurrence.




                                                5
    No.   2017AP1104-CR.bh




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