STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Marty R. CABAN, Defendant-Appellant.
No. 94-1015-CR
Supreme Court of Wisconsin
Oral argument January 29, 1997.—Decided June 12, 1997.
210 Wis. 2d 597 | 563 N.W.2d 501
For the defendant-appellant there was a brief by Katherine R. Kruse and University of Wisconsin Law School, Criminal Appeals Project and oral argument by Katherine R. Kruse.
¶ 2. The facts derived from the complaint are as follows: On March 31, 1993, Caban drove to the home of his friends, Fred and Denise Hollingsworth. Upon arriving at the Hollingsworth home, Caban parked his car just south of their driveway, on a public street.
¶ 3. Unbeknownst to Caban, the Hollingsworth residence was under surveillance at the time by the Rock County Metro Narcotics Unit (Narcotics Unit) in preparation for the execution of a search warrant. The search warrant specifically targeted the Hollingsworth apartment, its residents, Fred and Denise Hollingsworth, and any vehicles located on the premises. Neither Caban nor his vehicle was named in the search warrant.
¶ 4. A surveillance officer observed Caban park his automobile and then enter the Hollingsworth residence. The officer did nоt observe Caban carrying anything into the residence, but the officer noted that Caban was wearing a dark, ankle-length coat. Minutes after Caban entered the apartment, members of the Narcotics Unit entered the residence to execute the search warrant. Inside the Hollingsworth home, Narcotics Unit officers found Fred and Denise
¶ 5. The officers forced Caban to thе floor and placed him in hand restraints. After the occupants of the residence were secured, Narcotics Unit Detective Richard J. Mussey commented that he recognized Caban from the scene of a previous Narcotics Unit search. While Caban was secured in hand restraints, Detective Mussey searched him to assure the safety of the officers. This search produced no weapons and no contraband. However, in Caban‘s pockets, Detective Mussey discovered $1199.00 in United States currency.
¶ 6. Detective Mussey then ordered Deputy Hoerler of the Rock County Sheriff‘s Department to search Caban‘s vehicle. The officers at the scene made no attempt to obtain a search warrant for Caban‘s vehicle. Caban was not asked, nor did he consent to the searсh of his vehicle. No other vehicles were searched pursuant to the search warrant for the Hollingsworth residence.
¶ 7. Acting on the orders of Officer Mussey, Deputy Hoerler searched the entire unlocked interior and the locked trunk of Caban‘s vehicle while it was parked unattended at the curb. Deputy Hoerler recovered a black plastic bag from the front passenger floor area of the vehicle which she turned over to Drug Unit Officer Niman. Inside the bag were two clear plastic bags of
¶ 8. After the officers discovered the marijuana in Caban‘s vehicle, he was placed under arrest. Subsequently, Caban was charged with possession of a controlled substance with intent to deliver pursuant to
¶ 9. The written motion, cited in relevant part below,2 asserts a broad Fourth Amendment challenge to the automobile search. However, Caban‘s motion did
¶ 10. On October 25, 1993, a suppression hearing was held on the motion in the Rock County Circuit Court, Judge Michael J. Byron, presiding. At the suppression hearing, defense counsel‘s questioning and argument did not pursue the issue of probable cause for the search of the automobile and at various times attempted to prevent the prosecution from doing so by raising objections to questions from the State going to the issue of probable cause to search the vehicle. The thrust of the defendant‘s questioning and argument was that the search of Caban‘s vehicle was not incident to a lawful arrest, nor was it within the scope of the search warrant for the Hollingsworth residence.
¶ 11. The circuit court, finding probable cause for Caban‘s arrest, denied Caban‘s motion to suppress. Caban pled guilty and was convicted. He appealed.
¶ 12. At the court of appeals, Caban argued for the first time that the officers lacked the requisite probable cause to search his vehicle and, accordingly, evidence of the marijuana seized during the search was inadmissible. The State argued that Caban had waived his right to appeal the issue of probable cause by failing to raise it at the trial level. Although two members of the court of appeals agreed with the State, a different plurality agreed to hear Caban‘s appeal. In his dissent, Judge Dykman concluded that Caban had neither specifically raised probable cause to search the vehicle, nor had his broad Fourth Amendment challenge raised the issue. In his concurrence, Judge Gartzke agreed, but
¶ 13. This case presents two issues for review: (1) whether Caban raised the issue of probable cause to search his automobile before the circuit court, thus preserving his right to appeal that issue; and if not, (2) whether this court will employ its power of discretionary review to consider the issue of probable cause.
¶ 14. Both issues involve the scope of appellate review. The general rule is that issues not presented to the circuit court will not be considered for the first time on appeal. State v. Gove, 148 Wis. 2d 936, 940-41, 437 N.W.2d 218 (1989). This court has frеquently stated that even the claim of a constitutional right will be deemed waived unless timely raised in the circuit court. Id. The party raising the issue on appeal has the burden of establishing, by reference to the record, that the issue was raised before the circuit court. Young v. Young, 124 Wis. 2d 306, 316, 369 N.W.2d 178 (Ct. App. 1985).
¶ 15. The reasons for the waiver rule go to the heart of the common law tradition and the adversary system. By limiting the scope of appellate review to
¶ 16. In examining whether Caban raised the issue of probable cause to conduct the automobile search, we look first to whether he raised the issue in his written motion.3 Wisconsin law requires movants to “[s]tate with particularity the grounds for the motion.....”
¶ 17. Therefore, in order to raise the issue of probable cause in his written motion, Caban was required to state with particularity, i.e., specifically assert, that the police lacked probable cause to search his automobile. This he failed to do. Caban‘s motion states several other Fourth Amendment issues with varying degrees of particularity, but not the issue of probable cause to search the vehicle. Accordingly, we conclude that Caban‘s written motion failed to state the issue of probable cause with particularity as required by
¶ 18. Our analysis does not end with the written motion. Caban did not waive the right to argue the issue of probable cause on appeal merely by his failure to raise that specific issue in his written motion. In determining whether an issue was raised before the circuit court, we look to both the motion and to the suppression hearing. State v. Santiago, 206 Wis. 2d 3, 25-26, 555 N.W.2d 687 (1996). Accordingly, we turn our attention next to the suppression hearing.
¶ 19. A brief review of the law of search and seizure gives perspective to our analysis. The Fourth Amendment protects “(t)he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures....” A warrantless search is unreasonable per se. State v. Johnston, 184 Wis. 2d 794, 518 N.W.2d 759 (1994). However, the law recognizes an “automobile exception” to the Fourth Amendment warrant requirement. State v. Weber, 163 Wis. 2d 116, 471 N.W.2d 187 (1991), cert.
¶ 20. At the suppression hearing, defense counsel essentially argued only two issues: (1) the police did not have a search warrant to search Caban‘s automobile for controlled substances, and (2) there were no exigent circumstances justifying a warrantless search. A careful perusal of the testimony at the suppression hearing reveals that at no time during cross-examination of the State‘s witnesses, direct examination of his own witness, or closing arguments to the court did Caban raise the issue of probable cause to search the vehicle. Of particular note, showing that Caban‘s only arguments addressed the issues of lack of a warrant and lack of exigent circumstances, is Caban‘s closing argument to the circuit court, quoted in full:
Obviously the Hollingsworths were the targeted people in terms of this search warrant. It was their premises, and the vehicle‘s [sic] parked on their premises. Mr. Caban was not mentioned nor his vehicle mentioned in the search warrant. He did not consent to the search. The car, we believe, was parked off the premises of the Hollingsworths. It was not a threat to any law enforcement person. There was no exigent circumstances whatever that may or may not be these days. He was not operating
or behind the vehicle at the time that they went to it and proceeded to search it. It was not pursuant, for example, to a traffic arrеst or stop. They could have obtained a search warrant. Telephonic search warrant‘s a term I‘ve just recently heard. There obviously must be one if I‘ve heard it somewhere. In any event, they could have obtained a search warrant very easily for the vehicle. It was not a threat to anyone. They could have waited and done their search at that time. He did not—he was not even present during the search. He was arrested even before anything happened for something. We‘re not sure what he was arrested for, except that, as it turns out, he was not arrested for any possession of controlled substance on the premises.
So the arrest perhaps is somewhat questionable, other than he was in the vicinity of what obviously were controlled substances that the Hollingsworths had. I think that the stаte in this instance really should have obtained a search warrant before they proceeded to look in the vehicle. He‘s on probation. Perhaps even the probation agent could have directed that that be done, directed Mr. Caban to consent to it. They have a lot of authority once they‘re on probation. But that was not done here either. And it seems to me that this just went too far when they‘re searching any vehicle parked somewhere on the street.
R:38 at 59-61. As can be seen from Caban‘s closing arguments, he failed to raise the issue of probable cause to search the vehicle.
¶ 21. We conclude, given the above, that by his silence, both in his motion and at the suppression hearing, Caban failed to raise the issue of probable cause to search the vehicle before the circuit court; therefore, we hold that he waived his right to appeal that issue.
Discretionary reversal. In an appeal in the supreme court, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection apрears in the record, and may direct the entry of the proper judgment or remit the case to the trial court for the entry of the proper judgment or for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with statutes or rules, as are necessary to accomplish the ends of justice.
¶ 23. Thus, a circuit court order may be reversed in either of two situations: (1) whenever it is probable that justice has for any reason miscarried; or (2) whenever the real controversy has not been fully tried. State v. Wyss, 124 Wis. 2d 681, 735, 370 N.W.2d 745 (1985), overruled on other grounds, State v. Poellinger, 153 Wis. 2d 493, 506, 451 N.W.2d 752 (1990). Separate criteria exists for determining each of these two distinct situations.
¶ 25. Alternatively, there may be a discretionary reversal whenever the real controversy has not been fully tried. In this circumstance, the court may reverse even though it cannot conclude to a substantial degree of probability that a new hearing would produce a different result. Wyss, 124 Wis. 2d at 735. Generally, the real controversy is not fully tried when the fact finder did not hear all the relevant evidence. Id. at 746.
¶ 26. Again without determining the issue of probable cause to search the vehicle, a careful review of this entire record persuades us that the circuit court did hear all the relevant evidence. We conclude that if the issue of probable cause has not been fully tried, it is only because of defense counsel‘s objections to the admission of probable cause evidence, and defense counsel‘s failure to introduce evidence contrаry to a
¶ 27. In sum, we hold that, in order to challenge the constitutionality of the automobile search on probable cause grounds, Caban has the burden of establishing, by reference to the record, that he raised the issue before the circuit court. In making this determination, we consider both the written motion and the motion hearing. We conclude that, by his silence, Caban failed to raise the issue of probable cause to search the vehicle before the circuit court; therefore, we hold that he waived his right to appeal that issue. We further conclude that justice does not warrant discretionary review of the issue of probable cause. Accordingly, we reverse the court of appeals and remand for reinstatement of Caban‘s conviction.
By the Court.—The decision of the court of appeals is reversed and cause remanded.
¶ 28. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE (dissenting). The problem with this case, as the State‘s brief explains, is that “[a]t the suppression hearing, the defense and the prosecution could have been two ships passing in the night.” Brief for State at 11. I agree with the State‘s characterization of the suppression hearing. Apparently so did the court of appeals. This record produced three opinions in the court of appeals: the “lead opinion” by Judge Sundby, a concurrence by Judge Gartzke, and a dissent by Judge Dykman. State v. Caban, 202 Wis. 2d 417, 551 N.W.2d 24 (Ct. App. 1996).
¶ 30. Furthermore, I do not think this court can, on this record, add anything to the body of law about probable cause, so I would not review the court of appeals’ decision on this issue, regardless of whether I agreed or disagreed with it.
¶ 31. I will first discuss how this court should review the court of appeals’ discretionary decision to address the issue of probable cause to search the defendant‘s car. I will then discuss various approaches the court might take to determine whether the defendant in this case “waived” or “conceded” the probable cause issue, were it appropriate to reach this issue.
I.
¶ 32. The State presented the following issue in its petition for review: “When a defendant concedes probable cause in the trial court, challenging a search solely on the ground that a warrant was required because there were neither exigent circumstances nor consent, may the defendant challenge probable cause in his appeal?”
¶ 33. As a general matter, when a party fails to raise an issue in the circuit court, the issue will not be considered as a matter of right for the first time on appeal. Binder v. Madison, 72 Wis. 2d 613, 618, 241 N.W.2d 613 (1976). The rule of waiver is, however, a rule of administration and the rule does not limit an appellate court‘s power to address the issued waived.
¶ 34. The State prevailed on the issue of concession or waiver in the court of appeals. Two judges of the court of appеals, Judge Gartzke in concurrence and Judge Dykman in dissent, found that the defendant had waived his challenge to the existence of probable cause to support the search and thus lost his right to appeal. These two judges agreed that the court of appeals could nevertheless address the issue as a matter of discretion, but they disagreed whether the court of appeals should reach the issue. A different pair of judges, however, concluded that the court of appeals should review the merits of the issue, Judge Sundby in the lead opinion recognizing the defendant‘s right of appeal, and Judge Gartzke in concurrence recognizing that the court could review the issue as a matter of appellate discretion. Thus, in effect, the court of appeals addressed the issue оf probable cause as a matter of discretion. Neither the parties nor the majority opinion suggests that the court of appeals had no such discretion.
¶ 35. The supreme court has emphatically stated that it is reluctant to interfere with a court of appeals’ exercise of discretion and will ordinarily refrain from reviewing a discretionary determination of the court of appeals. State v. McConnohie, 113 Wis. 2d 362, 369–72, 334 N.W.2d 903 (1983). Were this court to review a discretionary decision of the court of appeals, the standard of review would be whether the court of appeals had erroneously exercised its discretion. Id. at 368.
¶ 36. Thus in order to reverse the court of appeals decision in this case on the ground that the defendant waived or conceded the issue of probable cause, the court must first find that the court of appeals
¶ 37. The majority opinion, however, fails to review the court of appeals’ discretionary decision to reach the issue of probable cause. I can find no erroneous exercise of discretion by the court of appeals in deciding to reach that issue. I believe that waiver has ceased to be an issue in this case because the court of appeals properly exercised its discretion to look beyond the waiver to the merits of the defendant‘s constitutional claim. I therefore conclude that the majority opinion errs in deciding whether the defendant waived or conceded the issue of probable cause.
¶ 38. Under these circumstances, I believe the proper disposition is to dismiss the petition as improvidently granted. Because waiver has ceased to be an issue absent erroneous exercise of appellate discretion, all that remains is the issue of probable cause. Were we to review the court of appeals’ disposition of the probable cause issue, we would be acting outside our principal function as a law defining and law developing court. Cook v. Cook, 208 Wis. 2d 166, 188-89, 560 N.W.2d 246 (1997). The law on probable cause is clear; the task of the circuit court and court of appeals is to apply the rules of law to specific fact situations. Were we to rule on probable cause we would be pеrforming merely an error correcting function which as we have said numerous times, is not the function of this court but is the principal function of the court of appeals. State v. Minued, 141 Wis. 2d 325, 327-28, 415 N.W.2d 515 (1987) (per curiam) (dismissing as improvidently granted; “Review in the present case by this court [of the issue of sufficiency of the evidence to warrant a jury
II.
¶ 39. Although I believe we should not address probable cause and we may not address waiver absent a finding that the court of appeals erroneously exercised its appellate discretion, I add some thoughts on the application of waiver principles to the somewhat confused record in this case.
¶ 40. I begin by stating what I believe distinguishes this purported waiver from most. In this case the defendant does not simply claim for the first time on appeal that there was no probable cause. Rather, the defendant objects to the dispositive holding of the circuit court that there was probable cause. Although the defendant did not raise the issue of probable cause in the circuit court, it appears that it was both raised and ruled upon by the circuit court.4 Indeed, it became the sole dispositive legal issue in the case.
¶ 41. Both the court of appeals (except for Judge Sundby) and the majority opinion conclude that the defendant has lost his right to appeal the issue of probable cause under these circumstances. I do not believe that either the court of appeals or the majority opinion has fully analyzed the waiver question.
¶ 42. To explain my concern, I turn tо the record and examine the positions of the State, the defendant and the circuit court. I then discuss the legal issues of waiver and concession.
¶ 43. At the suppression hearing before the circuit court, neither the State‘s nor the defendant‘s position rested on probable cause. Both the State and the defendant relied on arguments other than probable cause to support their positions on the validity of the search of the defendant‘s car.
¶ 44. In the circuit court the State advanced two chief theories to justify the search of the defendant‘s car. First, the State argued that because the defendant‘s car was on the Hollingsworth premises, it was within the ambit of the search warrant. Second, the State argued that the search of the defendant‘s car was a valid search incident to the defendant‘s arrest. In addition, the State put forth evidence which might show the existence of probable cause either to arrest the defendant or to search his car.
¶ 45. In his motion to suppress the evidence seized from his car the defendant raised a general claim that the seizure of the marijuana found in the search of his car “was not done with lawful authority and was in violation of the defendant‘s rights as set forth in the U.S. Constitution, Article IV” and article I, section 11 of the Wisconsin constitution.5 Both in his
¶ 46. The circuit court concluded that the warrant the police were executing did not authorize a search of the defendant‘s car but that the search of the car was valid, apparently as incident to the defendant‘s valid arrest. On appeal, however, the State conceded that the defendant‘s car was not covered by the search warrant and that the defendant had not been placed under arrest until after his car had been searched. Apparently the court of appeals agreed, nor does the State now argue that the search was authorized by the warrant or incident to a valid arrest.
¶ 47. While not entirely clеar, it appears that independent of its mistaken view of the timing of the defendant‘s arrest and the search of the car, the circuit court found the search valid as supported by probable cause and therefore justified as within the automobile exception to the warrant requirement. The State so interprets the circuit court‘s holding, brief for State at 4, and so did Judge Gartzke. Accordingly, the circuit court‘s sole extant legal basis for denying the motion to suppress the evidence found in the car was that there was probable cause to search the car.6
B.
¶ 49. With this background of the events in the circuit court, I turn now to the waiver of the issue of probable cause and the right to appellate review of this issue. Because the positions of the parties at the circuit court were unclear and the circuit court‘s rulings were in part erroneous, the waiver issue is itself clouded. The record is sufficiently clear, however, to suggest the following observations.
¶ 50. Had neither рarty raised in the circuit court the issue of probable cause to search the car and had the circuit court not ruled on the issue, this case would present the traditional circumstances of waiver. See, e.g., State v. Gove, 148 Wis. 2d 936, 940-41, 437 N.W.2d 218 (1989). The losing party (the defendant here) would have waived the issue of probable cause and could not, as a matter of right, raise the issue on appeal.
¶ 51. Yet the present case does not present the traditional circumstances of waiver because the circuit court ruled on the issue of probable cause.
¶ 52. While the defendant did not raise the issue of probable cause, and the State may or may not have,
¶ 53. The state argues that the defendant not only failed to raise the issue of probable cause but conceded the issue at the suppression hearing. The State further suggests that the circuit court accepted the defendant‘s concession and so should the appellate courts.
¶ 54. I question the majority opinion‘s conclusion that under this interpretation of the record, the defendant has lost his right to appeal the issue. The majority opinion‘s conclusion seems to contravene precedent. Our case law is that a party who has conceded a legal question7 which is then the sole legal basis for the circuit court‘s ruling can argue that legal question on appeal.
¶ 55. The court has concluded that a concession with respect to a matter of law “is binding upon neither
¶ 56. On this record it is unclear whether this case presents a concession of law. Any concession by the defendant would be by implication; no concession about probable cause was expressed. It may be that the defendant‘s argument that the police could easily have obtained a search warrant implicitly conceded that the police had probable cause to search his car.9
¶ 58. The lead opinion concluded that under such circumstances there was no waiver by the defendant because the State had the burden of proving probable cause and the defendant had no obligation to raise or to contest the issue in order to preserve it for appeal. The reasoning of the lead opinion appears to be that because the search was without a warrant, as the circuit court held, it is per se unreasonable under the Fourth Amendment and the burden of proving that the search and subsequent seizure were constitutional is оn the State. The defendant need do no more, urges the lead opinion, than make a colorable showing that the search is not supported by a warrant. The burden of proving probable cause then shifts to the State, according to Judge Sundby, without any further showing in order to give effect to the presumption against war-
¶ 59. Because the court of appeals in effect exercised its discretion to review the merits of the defendant‘s claim of probable cause, it is not necessary to determine whether this case presents traditional circumstances of waiver and, if not, what legal rules control.
¶ 60. I conclude that this record does not lend itself to a decision by the court on the issues for which the court took the case. I would therefore dismiss the petition as improvidently granted.
¶ 61. For the reasons set forth, I dissent.
¶ 62. I am authorized to state that Justice Ann Walsh Bradley joins this opinion.