*1 49.195, Stats., permitting reimbursement out de- fendant’s interest in home. construe sec. will 247.25 to effect this result. any express
Absent authorization in authoriz- ch. ing require the court support Margaret from Reible against or to attach lien her portions property, those of the are order vacated. If the state desires to re- seek Margaret specific imbursement Reible, the means provided 49.195(1), Stats., in sec. must be followed.
By part affirmed Court. —Order vacated part. Plaintiff-Appellant,
State, Donovan,
Defendant-Respondent. Appeals
Court No. on 78-865-CR. Submitted June 13, 1979. briefs July 26, 1979. Decided (Also reported 431.) in 283 N.W.2d
Moser, J., dissents. on plaintiff-appellant For the cause was submitted Follette, attorney general, and Bronson C. La the brief of general. Klos, attorney Michael R. assistant defendant-respondent For the cause was submitted Jr., Martinez, on the brief of Jess Waukesha. C.J., Moser, Decker, Cannon, J. Before P.J. *4 DECKER, parking James Perkins Donovan is a C.J. operandi. sophisticated meter thief modus with charged possession Donovan theft has been with and appeals of a The tool. state from an order granting suppress the trial court Donovan’s motion to by po- evidence, parking key, a homemade meter obtained in a of Donovan’s automobile. lice officers July 15, 1978, p.m., On at about 9:30 Donovan entered Depart- a surveillance net the Milwaukee set Police parking in the ment. Coins had been stolen from meters 700 block on North un- 11th Two officers Street. dertook surveillance of the area. After both officers had checked the meters in block and the ascertained they coins, all contained one officer was stationed in the Marquette University second floor window of a dormi- tory. The in the other officer remained on the street vicinity. parked
Donovan entered the area in his automobile and car, approached at a meter. He left his the meter and right “placed up his hand meter and hand his left up object to the meter with also an unknown in it and procedure made a motion.” The same at was followed two meters. The surveillance officer radioed the street officer.
Donovan returned to his auto and seated himself in front seat. The street officer arrived scene, joined and the surveillance officer then him at the scene, occupant where a closer view of the automobile Donovan, assured them that he as the was James Perkins tentatively officer had him in view identified the second floor window. approached
The surveillance officer vehicle seated, glove which Donovan was and observed a and quarters) (nickels, United States coins on the dimes Donovan, laying glove, automobile seat next to on the floor of the automobile. surveillance officer then pry examined both meters for marks. None although opened, were discovered. The were meters they they coins, earlier had contained United States empty. placed were now Donovan was then under arrest person searched, and his with no unusual results. *5 406 prior present at two had been
The surveillance officer involving parking meters. theft from arrests of Donovan keys parking meters were recov- On those occasions instance, key was on the street ered. In one the located physically twenty was ar- feet from where he fifteen to key rested, and in instance a was recovered another compartment of his auto- from a coolant under hood was aware of Donovan’s mobile. The surveillance officer effectuating keys the theft use of an automobile parking meters. coins produce person failed to the search Donovan’s When he parking key, where the street area around meter unsuccessfully was arrested was also searched. compart- passenger The front and rear seat area of the then without re- ment of the automobile was searched steering had in it the de- sult. The wheel a hole where sign steering out, was knocked was taken so wheel key apart, was Further of the but no found. examination seat, sat af- left door next driver’s where Donovan reentry arrest, ter into the automobile before his revealed down, was, there that when the window was rolled as it opening key permit was an size to to be sufficient dropped into the door between the exterior and interior panels. The in- officer shook door and heard a rattle side the door.1 Phillips
A screw driver was used to unfasten the bot- panel, up, tom area of the interior which was lifted type key a fellow officer retrieved a in- tubular from the key by using terior of the door. The was then it tested open meters. found, impounded After was car was towed “downtown.”2 cross-examination, agreed On the officer the rattle was panel being
heard while the door
unfastened.
place
custody
A
where the
maintained
of the car.
*6
exigent
The trial court found that
there was no
cir
justified
cumstances which
a warrantless
search of the
disagree
reverse,
automobile.
We
because we believe
findings
contrary
that
the trial
great
court’s
are
to the
weight
preponderance
and clear
of the evidence. State v.
Carter,
80, 90-91, 146
33
(1966).
Wis.2d
N.W.2d 466
by
Three recent
Supreme
the United States
decisions —
Court,
;
United
Chadwick,
(1977)
States v.
1
433 U.S.
by
Supreme Court, Thompson
the Wisconsin
State,
v.
83
134,
(1978) ;
court,
Wis.2d
by
The applied ultimate standard to searches and seizures by the fourth amendment is “reasonableness.”3 Warrant- per less se unreasonable, searches are pursu unless made ant exceptions to established A rule.4 warrantless only justified search can exception be as such an if there probable exigent exists cause to search and justify dispensing which with the need for a search war upon rant finding, by issued a neutral and detached magistrate, cause to search.5 A warrantless person search one’s incident to his lawful arrest is permitted, as is portion search of the of an automobile in the immediate person area of his poss within his 3 Cooper California, v. (1967); 386 58 United v. U.S. States Chadwick, supra at 9. 4 States, Katz v. United (1967), Coolidge 347, 389 U.S. v. Hampshire, New 443, (1971). 403 U.S. 454-55 5 Johnson States, v. United Coolidge (1948); U.S. 13-14 v. New Hampshire, 449; id. United States Chadwick, supra at 9. automobile, if at A of an warrantless search
ession.6 circumstances, prob by exigent is reasonable if tended exists that the automobile is an instrumental able cause among ity as, or contraband7 of a crime contains such im things, If an automobile is tools. other inventory pounded, is a warrantless custodial plain of evidence in view is reasona reasonable.8 Seizure ble.9 principles complexity application of inherent in the simply so formulated was understated are Supreme it when characterized the
United States Court “something less than law of warrantless searches seamless web.”10 applicable turn to the facts of this case and the *7 principles.
search and seizure ultimate as the standard of lawfulness Reasonableness only compo- a if its two of warrantless search is fulfilled (1) probable (2) nents to and ex- are met: cause igent judi- application for a excuse cially authorized search warrant.
Although
probable
to
Donovan contends that
by
state,
search the automobile was not established
patent,
find the
we
above-described evidence to
over-
be
whelming,
and
conclusive
cause to search.
6
752,
(1969);
California,
Coolidge
395 U.S.
760
Chimel
v.
v.
Hampshire,
id. at 456.
New
7
132,
(1925);
States,
Husty
267
Carroll v. United
U.S.
156
v.
(1931) ; Brinegar
States,
States,
known, previous occasion, parking on a a meter to hide key within his automobile. by occupied
Where else to look but the automobile Donovan ? may justification persistence
One for ask for the investigation and intrusion into the automobile. We missing key important view the as an link the state’s circumstantial evidence. The surveillance officer did testify suppression hearing at the Donovan that he saw parking take coins di- from the meter. There was no rect evidence that the found in the automobile were coins Discovery park- taken from the meters.12 of a ing “possession” meter in the of Donovan was an important evidentiary circumstantial link. intruding also note that searches of the steer-
ing by panel prompted wheel and the left door were readily slots that speedy could accommodate a conceal- ment of the tool. Those areas were immedi- ately proximate position Donovan’s the automobile constructively possession. and in his We believe that the circumstances of this case are com- parable parallel to the search of an automobile dis- Russell, in State v. cussed 60 Wis.2d 211 N.W.2d (1973). case, police In that stopped a officers had containing car occupants three because the car and occu- pants matched a report robbery. radio of an armed money taken included a Canadian dollar bill with a known serial number. passenger The driver and a con- sented to passenger possessed search. The a revolver. The driver passengers arrested, both were police officer then searched the automobile in the man- ner supreme described our court: 12 Cross-examination of the suppression hearing officer developed among the fact the coins in the automobile an opened “role” of nickels. *9 Officer went to Sturino then the driver’s side the open vehicle. The door had existed. The interior had remained lights after the driver on. of the vehicle were Of- flashlight ficer Sturino shined his into the front seat appeared area of the vehicle. He what to be a observed weapon sticking black handle of a the out from under front seat. He he removed a .22-caliber revolver pulled He object. it out he heard it click on another metal put pulled his hand under the seat and out another weapon. pulled weapon .22-caliber heAs this second out rustling from under the he seat and he heard sound again pulled pa- reached under the seat a brown out per bag containing bill, and one Canadian dollar $95 Supra serial number 3047913. at N.W.2d 639. supreme The court concluded: grant The trial suppress court did the motion to the gun of the second seized from under the seat bag paper and although was no that, the upon ground and its contents probable search, officers had there necessity to do so without a search warrant. We disagree. This justified search without a warrant can be upon grounds. two First, it was a search to a incident valid arrest for the fruits of the crime for which the de-
fendants were just arrested. This was not a random search up that turned evidence unknown to exist searching officers. Second, it was a upon valid probable search based robbery cause. The place longer had taken no than ten minutes before the search. It was the stolen money was on persons they arrested or in car using were these to flee from the robbery. scene of the Under facts, require that an officer remain with the (this car a.m.) is at 12:45 until a search warrant could obtained, be impound otherwise the car and then ob- tain a warrant, appears illogical to be an and un- necessary imposition of form over substance. The search of the vehicle in this upon case was based facts known to the officer any which would police lead reasonable officer to only believe that it probable, high- but ly probable, fruits the crime were near at hand. search described above was reasonable *10 deprivation
activity privacy of nor an unreasonable search —not by con- prohibited the federal and state as both Supra 717-18, at stitutions. 211 N.W.2d 640. patently in and over- We the evidence this case believe whelmingly to search.13 established produce of to
Did the state meet burden its exigent justifying a search? circumstances warrantless outset, the need to es-
At the
we
ourselves to
address
requisite
exigent
an
of
tablish
circumstances as
essential
opinions of the Unit-
a warrantless search.
read the
We
Supreme
clearly
repeatedly
ed
as
and
as-
States
Court
serting
by
proof.
the need for such
Assertions
members
appellate
proof
of
the Bar and
courts
other states
exigent
unnecessary
of
circumstances is
in warrantless
searches, we
automobile
believe to be erroneous.
stopped
highway,
public
of
Automobiles
on the
because
mobility
expectation
privacy
their
and
in
the reduced
regulation
use, require
herent
their
a
and
reduced
quantum
exigency.14
supreme
Our
court has charac
quantum
“slight,”'15 but,
terized that
as
like the United
Supreme
abrogated
Court,16
States
the need for
has
such circumstances.
view the
about
confusion
exigency
stemming
need for
an
such
infinite
variety
by
presented
an
deci
officer’s
stop
sion to
an
automobile without a warrant.
Supreme
The United States
Court has cautioned that
the fact that a warrantless search involves an automobile
Nonetheless,
is not
speeding
talismanic.17
automobile
grounded
upon
The trial court
its decision
the absence of ex
igent circumstances,
prob
and made no reference to an absence of
to
able cause
search.
Chadwick,
United States v.
Although search has warrantless automobile requiring a search “exception” the rule described as an from the warrant, exception such has not been relieved *11 determining the of warrant- for the reasonableness need to search in context less search the of exigent justifying failure proof the of circumstances the apply judicial approval for for the search. to exigent ? Resolu-
In this case were there requires the evidence. of that consideration of tion issue already importance of locat- to the have referred We evidentiary Ef- “key” link. ing the tool as a investigation concerted effort police demanded a fective provided prosecutor to be the if the was to discover quality the of law en- that would assure with evidence community might reason- state and forcement the key, the ably expect. police If to the the failed discover surveilling credibility direct evidence of officers’ the might easily questioned. If Donovan’s motions be manipulations proximity in to the meters why true, pry the marks was the evidence of absence of Predictably, key? police did not discover Donovan’s the If of that would be the thrust the cross-examination. key, why operandi one modus was to use a Donovan’s early enough, posed questions, not These discovered? might prosecutorial result in discre- well the exercise of prosecution. refuse tion to
18 Id. at 463. importance key, urgency
Given the of the the to search apparent the is lack automobile the of the success person. search of the area and those Donovan’s Were inadequately performed? searches unsuccessful because After a search warrant auto unsuc- was issued and the cessfully key, police searched the for would the return to against the protect area for a future search? would What sharp-eyed the passerby the loss of to a or ac- complice? post Would Donovan himself bail and return to the before area the auto could be ? Undoubt- searched edly questions police those haunted mind of- the of the ficer.
Only deployment of a number officers against protect cordon the area would of the loss evi- likely dence. The officer most leave the area to testi- fy evidentiary at a hearing search warrant would be surveilling only person officer —the who could rea- sonably defining shedding light contribute to area and where, on by which, the area and means Donovan ditched key. retrospective mulling effectively Judicial fails to weigh exigencies perspective unless considered immediacy confronting the officer. view the exigencies substantial, slight, and for that rea- findings contrary great son find the trial court’s weight preponderance and clear of the evidence. *12 refutory argument op- inevitable and invariable posing any warrantless automobile search is made It Donovan. is police post- asserted that the should have guard automobile, ed a impounded it, and made application for a search practice That warrant. is cau- sticky legal tious and a question judiciary. leaves simplistic. It is also Just as the involvement of an auto- mobile in justifi- warrantless search is not a talismanic cation, availability guard so is the judge of a and a not require- warrant reinstatement a search an automatic ment. might suggested police
It that a rural officer has been guard easily spared duty for as a metro- not such be as experience with politan immediate officer.19 Our suggests metropolitan that the inher- law enforcement police per- deployment of ent hazard from such inefficient infinitely greater metropolitan than the sonnel is rural resident. determining
In reasonableness of the warrantless search, weigh interest in law en- we are to the state’s against underpinning the forcement the inherent values properly fourth amendment.20 That cannot be accom- op- plished reject of the if out-of-hand we consideration guard portunity apply the automobile and for opportunities Nonetheless, search warrant. are those propriety the warrantless conclusive of the automo- weighed bile search. Those are to be circumstances against exigent im- the evident circumstances. The guard portant point opportunity to to be made is that the outweighed by exigent apply for a warrant will be “slight.” circumstances that are performed weighing function with the We have exigent conclusion that in this case “slight,” are not substantial. reverse the trial but suppressing court’s obtained order Donovan-occupied from the automobile. reversed;
By the Court. —Order remanded to the cir- proceedings cuit court for further consistent with this opinion.
MOSER,
(dissenting).
searches of au-
J.
Warrantless
reasonably
tomobiles can be
made if
cause ex-
19 Cady Dombrowski,
at 447.
U.S.
20 Coolidge
Hampshire,
Newv.
416 ists instrumentality that the automobile is an of a crime contraband, exigent or contains and if circumstances ex- In problem ist. this I case have no with the cause feature of the particu- warrantless search.1 I take that, lar mobility note due to their the reduced ex- and pectation privacy regulation of use, inherent their and stopped when street, automobiles are on the a reduced2 slight quantum exigency or required.3 of is any
Nowhere in majority of decisions cited determining exigent is there a case circumstances slight are so or reduced allow dis- warrantless mantling automobile, parts, an or its on the street. majority The opinion completely destroys exigent requirement and leaves authorities only remaining probable requirement to meet the test of of a reasonableness warrantless search. 15,
Donovan July was arrested in his on automobile 1978, p.m. parking at about 9:30 meter number 2462. judicial I following take notice of the facts:4 meter city county number 2462 is in the and of Milwau- kee, Wisconsin, city is no than more three normal blocks county from the courthouse; Milwaukee that same parking meter is city no more than six normal blocks City from District No. 1 of Milwaukee Police Station garage and that station has indoor facilities. majority exigent here circumstances, finds presented the facts court, to the trial but from
musings opinings mobility that due to the au- might it disappear tomobile and the evidence of the be lost forever sharp-eyed because passerby some 1 States, 132, Carroll v. United (1925); 267 U.S. 156 v. Johnson States, 10, (1948). United 333 U.S. 13-14 2 Chadwick, United States 1, (1977). v. 433 U.S. 12 3 Thompson State, 134, 142, 83 Wis.2d 265 N.W.2d (1978). 902.01(2) (3), Sec. Stats. *14 under himself, accomplice, an who that Donovan get before arrest, post bail and automobile would They opined a further search warrant was obtained. police protect a would be needed to cordon warrant while a search evidence within the automobile was obtained.
They inveigh against be- a warrant further search sticky proceeding. method of it is a and cautious It and seizures should be warrantless searches because per se unreasonable.5 are impound ve- do was
All that the officers had to away, get garage hicle, six it to the blocks tow vehicle, judge and the warrant for the to issue “key” question for would have been available charge possession for the time of tools. rul- affirm the court’s
For these reasons I would trial “key” ing suppressing the evidence.
5 Coolidge Hampshire, Newv. (1971). 403 U.S. 454-55