State v. Murdock

Wisconsin, STATE Plaintiff-Appellant, MURDOCK, Defendant-Respondent.† Leonard Appeals

Court of No. 88-0918-CR. Submitted on October briefs 1988. May 11, Decided 1989. (Also 319.) reported N.W.2d granted. Petition to review † For plaintiff-appellant the cause submitted was Hanaway, briefs of Donald J. on the attorney general, Levenson, Barry M. attorney general. assistant For defendant-respondent cause sub- Sweet, the brief of David M. on mitted of Milwaukee. Moser, P.J., Fine, Before Sullivan and JJ. FINE, This presents significant J. case search scope and seizure issue: is the permissible what of a premises search when the is inci warrantless dent to a arrest? the issue lawful Since involves the application of principles to undisputed constitutional See facts, State we decide this matter de novo. 171, 175, cert. 565, 573, 131 Wis. 2d N.W.2d denied, (1986).1 479 U.S. 989

1 Contrary assertions, pages to the dissent's Dissent but, rather, ignore adopt 214-215 and we do not trial facts, findings court's no of historical about which there is dispute.

I. rooming Four law enforcement officers went to a house where Leonard Murdock lived to arrest him on They three warrants. found Murdock a room with two approximately by small, other men. The room was ten by twelve feet or twelve fourteen feet. Connected to the pantry-type approximately closet, room was a which was pantry- six four feet. There was either no door to the open. closet or it was

Murdock and the other men were ordered to the floor, and were handcuffed with their hands behind their handcuffed, backs. After men were one of the officers pantry. .22 saw a caliber round on a shelf There shelf, were drawers underneath the and the officer opened looking weapon. them for a The officer testified suppression hearing they at the rooming that before went into the Murdock,

house to arrest one of the other explained suspected officers had that Murdock was having gun "waived a at a witness or someone and he supposedly armed."

A short-barreled rifle was found in one of the draw- laying found, ers. At the time the rifle was Murdock was ground pantry, approximately on the in front of the according and, three to four feet from the drawer court, trial the officers had the situation under "com- plete being control," there "no resistance." charged felony possessing

Murdock was with the 941.28, short-barreled rifle violation sec. Stats. Although challenging not the lawfulness of his suppress Murdock filed a motion to the rifle. The tried granted court motion and dismissed the case. We reverse.

HH HH This case is governed by the search pro- and seizure visions in Constitution, the United States the Wisconsin Constitution, and the Wisconsin statutes. Fourth The Amendment to the United States provides: Constitution right people

The of the persons, to be in their secure houses, effects, papers, against and unreasonable seizures, violated, searches and shall not be no issue, cause, upon probable Warrants shall sup- but ported by affirmation, Oath or particularly describing place searched, persons to be and the things or to be seized. I,

Article section 11 of the Wisconsin Constitution is substantially the same: right people persons, to be secure in their

houses, papers, against and effects unreasonable violated; searches and seizures shall not be and no cause, upon probable sup- warrant shall but issue ported by affirmation, particularly oath or describing place persons to be searched and the or things to be seized. 968.11, Stats.,

Section provides: made, When a lawful arrest a law enforcement may reasonably officer search the arrested person's and an area presence within such immediate purpose for the of:

(1) attack; Protecting the officer from (2) Preventing person escaping; from (3) Discovering seizing the fruits of the crime; or

(4) instruments, Discovering seizing any may things articles or which have been used of, may the commission or which constitute evi- of, dence the offense.

In analysis of an permissible context of what is the scope of a search incident to a lawful these consti- statutory tutional and provisions are with one consistent another and are See coextensive. 131 Wis. 2d at 165-168, 171-176, 570-572, 388 N.W.2d at 573-575. Accordingly, paraphrase aph- to Gertrude Stein's famous roses, orism about what is lawful under the Fourth Constitution, Amendment to the United States is lawful I, under Article section 11 of the Wisconsin Constitu- tion, 968.11, is lawful under sec. Stats. See ibid.

A warrantless search incident to a lawful arrest (1) permissible for two prevent reasons: being having weapons might arrested from access to endanger arresting permit suspect's officer or (2) escape, prevent person being arrested from concealing destroying California, or evidence. Chimel v. (1969). Thus, recognized 762-763 Chimel "ample justification" there is for officers who are lawfully arresting a suspect to search "the area from might gain possession weapon within which he of a or destructible Id. evidence." at 763.

Chimel of burglary concerned the full-scale search suspect's arresting through home. The officers "looked house, attic, the entire including three-bedroom workshop." Id. garage, striking and a small at 754. down the search as an unreasonable invasion of Chimel's Fourth Court over- rights, Amendment interpreted turned a line of cases that lower courts had any as authorizing almost search that was incident to a adopted case-by- lawful arrest. Id. at 755-768. Chimel approach case to determine a particular whether search was reasonable under the Fourth Amendment. Id. 765. at Belton, later, New York years Twelve 453 U.S. 454 (1981), the Supreme Court —in the of context an auto- mobile rejected case-by-case this approach in search — clear-cut, of favor a rule. bright-line Significantly, both Chimel and Belton were written the person, same Justice Potter Stewart. Belton, police stopped officer an automobile he car, speeding. stopped

saw After he the the officer rea- sonably suspected the driver and passengers illegally of possessing marijuana. car, He ordered them of out the " arrest, placed down, them under patted them 'split " up them into four separate Thruway,' areas he while searched the car. 453 U.S. at 455-457. The officer jacket found Belton's lying leather on back seat. Unzipping pockets, one of jacket's officer discovered cocaine. Id. 456. highest New York's court threw out the on " ground zippered 'warrantless search pock- an

ets of jacket may upheld unaccessible not be as a search incident to a lawful arrest where there is no any longer danger arrestee or a confederate " gain Ibid. The United might access to the article.' reversed, States holding Court that since the jacket "was 'within the arrestee's immediate control’ Chimel, meaning within the the search was "incident to a lawful custodial it did not violate Fourth and Fourteenth Amendments." Id. at 462-463. beyond went determining whether officer's search of jacket was reasonable under the specific bright- circumstances of that It case. crafted a line rule as to what an constitutes "area from within which being might possession gain [the arrested] weapon of a or pass destructible evidence" muster 763, whether Chimel, irrespective 395 U.S. at under of actually was accessible: the area searched policeman made a lawful a has hold that when [W]e automobile, he occupant of an arrest of the custodial arrest, of that may, contemporaneous incident as a compartment of that passenger search automobile. police may that from this conclusion

It follows any found of containers the contents also examine passen- if compartment, for passenger within the arrestee, so compartment is within reach ger in it be within his reach. will containers also omitted). (footnotes Significant- Belton, at 460 453 U.S. out, Belton dissenting justices pointed ly, as two they had been were arrested his friends and "after down, car, separated" so patted and from the removed subsequent of the arrest and time that at the that had jackets reached the of them could have "none car." Id. at 466 seat of the on the back been left They J., original). (Brennan, dissenting) (emphasis first decision as "for the the Court's thus characterized conduct a authority to police officers granting] time where under circumstances 'area' search warrantless gain posses- 'might the arrestee is no chance there '' Id. at 468 evidence.' weapon or destructible sion of however, 763). essence, Chimel, U.S. at (quoting 395 already recog- Chimel had merely applied what to a lawful arrest nized, search incident namely that a within the to the area constitutionally be confined "must Vale v. time his arrest." at arrestee's reach (1970) Louisiana, (emphasis supplied).2 reach at the the arrestee's the area was within Whether by Vale, also written Justice Chimel and like Stewart. search,

time of opposed as time Belton; Fry. not material.

Fry was arrested trespass. for crime of 157-58, Wis. 2d at N.W.2d at 567. The arresting officers had been told another law enforcement agency Fry was known carry gun glove compartment of his car any and that him seeing officer Id. "should use caution." at 388 N.W.2d at 567. arrest, Fry After his a passenger Fry's from automo- placed bile were handcuffed in separate squad cars. Id. (Bablitch, J., 388 N.W.2d at 579 dissenting). Fry's officers then searched Fry car while his passenger being guarded by other A officers. weapon in compartment. was found glove the locked Ibid.

Fry upheld the search and relied on Belton's bright- line for analysis rule its under the United States Consti tution, Constitution, 968.11, the Wisconsin and sec. 165-68, 171-176, Stats. 131 Wis. 2d at 388 N.W.2d Fry 570-572, at explained: 573-575. As The Belton rule is simple gov- a and reasonable rule erning the search of an automobile an after arrest is police may A assume under Belton made. officer the an interior of is automobile within the reach of a defendant when the defendant is still at the scene of arrest, an the physically but defendant is not in the say vehicle. We cannot as a matter of fact in all cases regain that a defendant never could access to the initially leaving interior an automobile after the Thus, seriously police we vehicle. would undermine security adopted if we as a matter of constitutional fact the rule that the interior of an automobile never suspect is within the reach aof who is the outside scene; at prohibit vehicle the arrest such rule would arrest, all automobile searches as an incident to the unless defendant was allowed remain the to search, the increases during which automobile subscribe to We cannot danger officer. risk of arrest incident to on the search limitation such a rule. dissenting jus

Id. at 174-175, at 574. 388 N.W.2d Fry expressed echoed, concerns part, tices See id. at 185, 187-188, in Belton. dissenting justices J., dissenting). (Bablitch, at 388 N.W.2d guide Belton saw the rule to bright-line need for a split-second to make forced who are police officers See lives. risk of their assessments case, followed an earlier it regard, 458. this U.S. at Robinson, (1973), United States where a 414 U.S. 218 full approve the Court prompted similar need As Robinson explained: person. arrestee's and where as to how police determination A officer's suspect he has whom person of a search the ad hoc necessarily quick judgment which arrested require to be broken does not Fourth Amendment step in analysis of each into an in each instance down authority inci- to search search. The upon the while based custodial dent to a lawful evidence, does not disarm and to discover need to may decide was the court later depend on what a weap- that particular in arrest situation probability a upon in be found would fact ons or evidence suspect. person of the Robin-

Robinson, 235. Belton expanded on 414 U.S. at son's theme: apply a court will a person know how a cannot

When situation, recurring factual that principle to a settled scope of his constitutional know the cannot protection, policeman nor can a know scope of authority. his agree

Belton, 453 U.S. at 459-460. We with State bright-line that premises there is the a same need for rule in Simply put, validity searches. of a depend incident to a lawful arrest must not surely, retrospective, analysis aon lei- factors, of countless by assessment of which must in be made an instant path on the officers line. We therefore follow the clear by Fry Chimel, Robinson, cut Belton and that hold premises warrantless search incident to a lawful arrest is long generally valid as as it is limited to the area within arrest,"3 is, the "arrestee's at the reach time of his that including contig- in made, the room which the arrest is open pantry, uous area such aas closet or and the arrest- ing grounds officers have reasonable to conclude that weapons might present or destructible evidence in be prongs that room.4Since the search here satisfies both upheld. test, this it must be adopt fully teachings rule we conforms with the Fry.5 Silva, of Belton and See United States v. 745 F.2d 3 Vale, Chimel, 33, interpreting 399 U.S. at 763. conformity mention 4 We "destructible evidence" with Chimel, 763; U.S. at 453 U.S. at 968.11(3), (4), Wis. 2d at 388 N.W.2d at 578 as well as sec. assert, dissent, Stats. It not meant as contended Dissent at that this case evidence could involved Fry. destroyed. obviously It did not. Neither did Fry 5 The dissent here misreads both Belton when it states that those cases "involved automobile searches which were and where areas searched within the were incident arrest control arrestee." (emphasis supplied). Dissent at As Belton opinion, separated noted in this the arrestees horn and, indeed, the automobile at the time the search a dissent pointed none of men out arrested "could have denied, 1984), U.S. 1031 470 840, (4th Cir. cert. 847 warrantless (lawful justified in room (1985) arrest motel though even zippered bag nearby locked search of backs at behind their were handcuffed arrestees Palumbo, 1095, F.2d 1097 v. 735 time); United States (lawful (1984) denied, Cir.), 469 U.S. 934 (8th cert. behind room warrantless justified in hotel arrest inac might have been though area drawer even dresser search).6 Compare at the time to arrestee cessible 1983), (Md. State, 333, A.2d 337-338 468 Stackhouse with Fos dwellings, Belton to to extend which declined (Md. 1983), cert. State, A.2d 1000-1001 ter v. 464 (1984), upheld the warrant- denied, which drawer even open nightstand partially of a less search her back at behind suspect was handcuffed though in majority Significantly, of the arrest. the time dissenting opinions on one of the two Stackhouse relied Stackhouse, Recognizing at 338. 468 A.2d in Belton. See generally is arrested room which person's within that extent of the area encompasses the Fry the uncer Belton reach, did we—as —avoid sifting weighing case-by-case judicial tainty of a token, By 466. the same jackets." 453 U.S. at reached only Fry's when out automobile Fry passenger not and his were were, indeed, separate sitting handcuffed but it was searched 131 Wis. 2d at squad guarded other officers. cars (Bablitch, J., dissenting). situations in both N.W.2d at Fry 212-213, see "stabilized," Belton Dissent at thus respective searches. the time of "bright- commentator, sympathetic not 6 0ne premises rule, application "would most recognizes its line" positions found likely of the intermediate in the form of one or, likely, based more a rule wanting in one-room rule Chimel —a person's just his arrest." control on the extent before Seizure, (2d 1987) Search and Fave, at 635 ed. sec. 6.3 W.R. La (emphasis original). (size

myriad room, place matters of in room where per- arrested, son proximity place of search to of degree stabilization, etc.). already noted, of As law officers instantaneously process enforcement must these stress, time personal matters at a of and often great at risk.

The United States Court has reminded us "[e]very presumed arrest present must be a risk Washington v. Chris- danger of the arresting officer." man, 1, (1982).7 appropriate 455 U.S. 7 It is to balance and danger, danger this that evidence will be See destroyed, against the privacy rights enjoy. we all Jersey Bruzzese, New v. 320, (N.J. 463 A.2d 332-333 " denied, 1983), cert. (1984). 465 1030 '[P]hysical U.S. entry of the home is evil against the chief which the " Payton wording of the Fourth Amendment is directed.' York, New (1980) United 573, 445 (quoting U.S. 585 Court, States v. United States District 297, 407 U.S. 313 [1972]). As notes, jus- "the lawful custodial arrest 1987, "During situations, during 27 officers slain arrest accounting line-of-duty any for more deaths than other circum stance," Reports Crime Uniform —Law Enforcement Officers (U.S. 1987). Killed and Assaulted p. Dept, Eighteen of Justice police during officers were killed in arrest situations first six Release, Dept, Contrary months of 1988. of U.S. Justice. assertion, 215-216, may acknowledge dissent's Dissent we at past tragedies, potential, figures both inherent these part though they appellate are not this record case. As explained by Advisory Federal note to Committee's Rule 201 Evidence, type may of the Federal Rules of this of information by appellate used as an aid in trial and courts the ascertainment R26-R27, legal principles, at Wis. 2d because that task guided by experience understanding." Davis, "should be Notice, 945, Judicial (1955) quoted 55 Col. L. Rev. 902.01, Stats., Judicial Council Committee's note to Rule 59 Wis. 2d at R25. pri- any infringement

tifies the Amendment] [Fourth Belton, See 453 U.S. by the search. vacy interest" caused potential the zone of the search to By limiting at 461. at recognized both danger, we heed the Fry, 131 Wis. 2d at 388 N.W.2d Fourth forceful reminder Supreme Court's by Framers well aware adopted Amendment was under the king's myrmidons by the outrages perpetrated and writs of assis- general warrants of the hated aegis Chimel, 21. See Payton, 445 U.S. at 583-584 n. tance. effective heed the need for 760-761. We also 395 U.S. at safe law enforcement.8 and assertion, Belton not stand

8 Contrary does to the dissent's case-by-case approach "is still proposition that the Chimel for the validity country concerning search of a of a in this the law Indeed, at 217. as arrest." Dissent home incident to a lawful police states, in Chimel held that the "while the Court Belton simply in an arrestee's house all the drawers could not search home, police him the Court noted that had arrested at because the could be searched because within an arrestee's reach drawers police." might pose 453 at danger their contents 763). Chimel, Belton abandoned Chimel's (citing 395 U.S. at whether, fact, case-by-case the searched areas evaluation of bright-line rule that reach" in favor of a "an arrestee's were actually or not. area was accessible not turn on whether the does extend, extended, bright-line rule it to nor declined It neither simply premises. The issue was not searches of announced to Chimel," "revers[ing] see Dissent the Court. Rather than before police so that officers follows at this court try guess split-second need not to make decisions who must might "stabi later consider the situation some court whether 212-213, pages 215. See Dissent at lized." dissenting opinion disagree implication in with the We also search; it is not. The is a license for unbridled that this decision here, Belton/Fry, specific. bright-line rule as narrow See page supra.

By the Court. —Order reversed.

MOSER, (dissenting). P.J. begin my To with rea- dissent, sons for I first majority opinion note overlooks the historical facts found the tried court. Therefore, they explicated have to Septem- here. On 30, 1987, ber deputy Milwaukee detective sheriff (Banaszak) Edmund Banaszak assigned three arrest warrants for possession Murdock. Two warrants for were substances, controlled one battery was for while armed with knife. Banaszak and three other detectives assigned to arrest Murdock also told that Murdock had previously pointed weapon at a woman.

Banaszak and colleagues his three went the Mil- waukee rooming house where Murdock lived. After arriv- ing house, rooming the officers were advised that "2," Murdock had rented room but was at that time "15," moving room into which was adjacent room "2" and joined by a At doorway.1 suppression hearing, Banaszak stated that he knocked on door to room "15," presence announced the police, heard move- room, ment within the ten and waited from to fifteen response. finally opened, minutes for a When door he and in colleagues weapons his three walked with their drawn. The dimensions of room either ten feet by or twelve feet twelve fourteen feet. Banaszak feet people ordered the three in the room to "hit the floor." They complied immediately, lying and on while their stomachs, behind their their hands were handcuffed Warfield, See State 56, 60, Wis. 198 N.W. (1924). person's rooming in is A rented a house room his/her purposes determining home for or unrea whether a reasonable place sonable and seizure taken the Wisconsin has under Constitution, I, sec. amendment art. fourth United States Constitution. Murdock,

backs. still Banaszak handcuffed while Murdock, Eugene bending over detective observed (Welch) .22 holding a caliber bullet which Welch Welch pantry a in small pantry. found on shelf area was room, to was located three to four feet adjacent lay he from Murdock's head as down and hand- face time, cuffed on the floor. At that Banaszak also saw open Welch the middle drawer of a set of drawers built wall, rifle. pantry into the and extract a sawed-off suppression hearing, On at the cross-examination Murdock's room was stabilized Banaszak testified that testimony before rifle was found. His was as follows: Banaszak, Q you you Mr. testified have been that Department approxi- member of the Sheriffs for mately years; is that correct? Twenty-two.

A Q Twenty-two years. you training Have received

proper procedures? arrest A Yes.

Q say Would it be correct to that the first matter to arresting taken care of someone person being is sub-

ensure that that arrested dued and cannot flee?

A No.

Q step procedure? What would be the first Stabilizing A the area.

Q you by stabilizing What do mean the area? everybody A Making I sure observed there [sic] they're any position actions and that not in injure anyone.

Q you step Did take in this case? Yes.

A similarly Detective Welch testified as follows: So, Q every single in that room had been placed

more or less under with control handcuffs they laying behind their backs and on the floor?

A Yes. provided

The detectives further uncontested testi- mony throughout which established that the arrest there struggle, taken, was no no evasive action no resistance escape attempts by anyone. short, and no In Murdock guests immediately cooperated every and his two with police request.

The trial court found that all of the above his- particularly fact, torical stressed that Murdock and guests down, his two were face with their hands hand- backs, bullet, cuffed behind their when Welch found the proceeded rummage pan- through the drawers in the try, ultimately removed the sawed-off rifle. Further- prone body, more, Banaszak was bent over Murdock's positioned and Welch was between Murdock weapon.

The trial court noted that while the officers had a right premises to be on the to make a lawful arrest and to they right bullet, seize the did not have the to make a pretense further search on the that because Murdock's approximately pan- head was three to four feet from the try they safety. area, feared for their The trial court also complete noted that the officers had the situation under control, stabilized, that the area was and that there was no resistance. It therefore the search was held doing, unreasonable and unwarranted. so the court rejected argument accept bright- the State's that it as a line rule that a search of a home is an extension of the law, as authorized the United States Court Supreme Belton,2 in New York v. and the Wisconsin Fry,3 involving constitutionally Court in State valid automobile searches. majority opinion rejected

The here the trial court's illegal, determination that the search was and held that logical the search was because it valid was a extension of Fry. disagree majority I because the has dis- regarded findings facts, the trial court's of historical literally Fry Also, has created its own. Belton and involved automobile searches which were incident to arrest and where the areas searched were within the control of the arrestee. Those cases did not involve homes, searches of and thus their extension to this case is limited. reviewing suppressing evidence, an order the trial evidentiary findings

court's or historical facts must be upheld they against great weight unless are and clear preponderance majority I evidence.4 believe the opinion ignores the uncontroverted historical facts testimony obtained from the of Banaszak and Welch. they home, When entered Murdock's all four detectives weapons had their drawn. Banaszak ordered Murdock guests They immediately and his two to the floor. com- plied. After the three men had their hands handcuffed lying them, floor, behind and were facedown on the (1981). 2 453 U.S. 454 Court reversed the New Appeals, proper York State Court of and held that it was for police glove compartment an automobile while the defendant stood outside the automobile. 153, (1986). supreme

3 131 Wis. 2d 388 N.W.2d 565 Our court extended Belton to allow a police glove search of an automobile compartment automobile, when the defendant was out of sitting police in handcuffed and automobile. Guzy,

4 State v. 139 Wis. 2d 407 N.W.2d (1987). prone body, leaning over Murdock's

while Banaszak pantry. in Welch was a bullet on a shelf Welch found pantry, standing and the between Murdock draw- opening. found that the detec- The trial court ers he was by making sure that Mur- the area" tives had "stabilized any position injure guests were not dock and his any placed every person one, room was and that under control. the court is on these historical facts that trial

It area, in control of the concluded that the detectives were weapon, and that could not secure the that Murdock constitutionally the unreasonable. therefore search question is a of constitu- Whether a search reasonable findings fact are fact.5 Such of constitutional tional by appellate independently.6 On review reviewed courts appellate findings, an constitutional fact court of these findings ignore facts. the trial court's of historical cannot apply principles Rather, to the we must constitutional majority ignored However, has found.7 the here facts as findings addition, In court's of historical facts. the trial adopted bright-line majority rule relative to has searches, of Mur- home and determined that every arrest must be dock's home was reasonable because present danger arresting presumed to a risk of officer(s). presumption, majority support of this report suggests uniform crime which cites to a federal twenty-seven during police 1987, were killed officers they tragic, in Those deaths are but are arrest situations. presented court, before this not the record of the case rejection support of the trial cannot be used to Flakes, 614, v: 411, 426,

5 SeeState 410 N.W.2d 140 Wis. 2d (Ct. 1987). App. 620 6 Fry, 171, N.W.2d at 574. 131 Wis. 2d at Owens, State v. N.W.2d 148 Wis. 2d (1989).

court's historical and constitutional finding. fact Under case, the facts of this Murdock could not secure the weapon by Welch, found and thus there was an unwar- ranted, unreasonable search through the drawers pantry of his home.

I reject further majority's finding as constitu- tional fact that the unwarranted search was reasonable possibility because of the might evidence destroyed. There is absolutely no historical evidence in record, court, argument to the ruling by tried the trial argument appellate court or briefs tendered to this court on the issue of destruction of evidence. Such a finding of constitutional fact this court has no merit. United States Court has held that justifications there are two for an unwarranted search of a home (1) incident to a if lawful arrest: there is a need any weapons remove that the arrestee might try to use (2) to resist or prevent the destruction or con- cealment of evidence.8 The Supreme Court distinguished necessity and inherent reasonableness of searching person, an arrested or an area that the arrestee might reach in grab order to weapon, by a stating that there is comparable justification, however,

no routinely for searching any room other than that in which an or, matter, arrest for searching for occurs— through all the desk drawers or other closed or con- searches, cealed areas in that room itself. Such in the of well-recognizedexceptions, absence only may be made authority under the of a search warrant.9 The Court also held trial court decisions regarding illegal claimed searches incident to a lawful arrest must approached case-by-case on a basis to if determine a California, 8 Chimelv. (1969).

9 Id. fourth amendment.10This is reasonable under the search country concerning the valid- test is still the law this ity arrest.11 a search of a home incident to a lawful existing authority change law, and no This court has Supreme by Court. bound the mandates of the we are majority opinion is not The fact of the matter is that Supreme logical States Court's extension of the United Fry. Chimel, in Belton and decision as construed opinion majority arrogates Instead, to itself the power Chimel. No federal or state lower courts to reverse reject a United States Court construction can duty Constitution; it is the of inferior of the federal the Constitution as construed courts to administer highest our court.12 finding facts,

Thus, must historical trial courts after properly arresting whether officers then determine pursuant If item is found an arrest scene. an searched search, whether the trial court must ascertain such a was valid because the item incident to the arrest weapon found, here, accessible was an area such as the might grab in arrestee, it an and that the arrestee attempt facts of this to resist arrest. Under the historical case, can be made. no such determination majority opinion finds con-

I thus conclude that from the histori- facts that cannot be derived stitutional differ, the trial court's I and would hold that cal facts. pantry drawers determination that the search correct, fourth because under the unreasonable was special dignity amendment, entitled to one's home is fundamentally, sanctity, are such as this searches 10 Id. at 765. 11 See 453 U.S. at 460. (1933). Bailey, Carolina v.

12 See South per se Furthermore, unreasonable.13 I would affirm the trial court's finding as historical fact that the weapon found inwas an area which Murdock could not possibly access, thus the search was I unreasonable. would there- fore affirm the trial court's decision. State, 13 SeeLaasch v. 587, 594, Wis. 2d 267 N.W.2d (1978).

Case Details

Case Name: State v. Murdock

Court Name: Court of Appeals of Wisconsin

Date Published: May 11, 1989

Citation: 445 N.W.2d 319

Docket Number: 88-0918-CR

Court Abbreviation: Wis. Ct. App.