State v. Pallone

Plaintiff-Respondent, Wisconsin, State

v. Defendant-Appellant-Petitioner. Pallone, Robert J.

Supreme Court argument April No. 98-0896-CR. Oral 2000. Decided June 77WI (Also 568.) reported in 613 N.W.2d defendant-appellant-petitioner For the there were by Steven briefs J. Watson and Steven J. Watson Law argument by Elkhorn, and Office, oral Steven J. Watson. argued plaintiff-respondent

For the cause was by attorney general, Nashold, E. assistant Jennifer Doyle, attorney with whom on the brief was James E. general.

¶1. PROSSER, J. Robert J. Pallone DAVID T. (Pallone) published review of a decision seeks appeals, Pallone, 2d State v. 228 Wis. court of (Ct. 1999). appeals App. The of court N.W.2d of the Circuit Court for Walworth affirmed County, decision Kennedy, Judge, denying J. Pallone's

Robert police suppress to evidence obtained when motion in Pallone was arrested the driver of the vehicle which bag belonging passenger to and searched a duffel the search Pallone. The circuit court concluded proper it conducted incident to an because was was arrest. holding appeals affirmed, of 2. The court bag pursuant the duffel was valid

the search of Wyo- Supreme in States Court decision of the United ming (1999). Houghton, Under v. 526 U.S. 295 probable Houghton, cause to search officers with belongings inspect passenger can motor vehicle also containing object capable of the search. that are upon appeals distinguished court a case which The Iowa, In relied, Knowles v. 525 U.S. 113 Pallone may police Knowles, Court held that during stop a traffic when driver search a vehicle The court of a citation but is not arrested. receives appeals case, in this the search was underscored that prohi- Knowles arrest, an and therefore the incident to apply Pallone. did not bition police issue the court is whether 3. The before belongings may search of the conduct a warrantless is under the driver of this vehicle a motor vehicle when probable police to arrest or not have cause arrest but do passenger. the search of Pal- We hold that detain the constitutionally sound, on the duffel lone's presented, First, the search was for two reasons. facts exception to incident to arrest" under the "search valid requirements set forth Fourth Amend- warrant §I, to the United States and art. ment Constitution Second, of the Wisconsin Constitution. the search was proper to search the because had cause any passenger compartment con- of Riffs truck capable concealing object tainers of the search. the duffel We therefore conclude the of was valid, and the from the search was evidence obtained Accordingly, admissible at trial. we affirm the decision appeals. of the court of

FACTS dispute. ¶ 4. Some of the facts in this case are in (Riff) On June James P. Riff and his school- Friday-night mate, Pallone, embarked on a drive from pickup Illinois to in Riffs Ford Wisconsin black truck. They planning meet were a friend at a local road- drink house. Riff had consumed one alcoholic at his Barrington home he and Pallone before set off on trip. approximately p.m., pul- At 11:20 Riff and Pallone Parking Municipal Village into #1 in led Lot County. They Fontana in Walworth had with them a 12 pack ripped open beer, which had been and con- empty dispute tained both and full bottles. There is a pack lay the 12 whether on bench seat inside the pickup lay driver, Riff, cab next to the or whether it in undisputed of the bed truck near the cab.1 What is grabbed 12-ounce, is that Riff short-neck bottle of pack pulling Budweiser out of the as he was into the opened stepped lot, it, it, drank half of and out of the truck with the in his hand. bottle cab, pack Riff testified that the 12 was in the on the bench seat, Recknagel of the truck. Officer stated that he found the explained beer at the front of the truck bed and did he any find beer inside cab. Village

¶ 5. of Fontana Police Officer Jeff Recknagel duty night was on summer and had parked squad parking his marked car in the same lot. Recknagel standing at the north end of the lot with pull park officer he Riff in and in a fellow when saw stall about 20 feet from the uniformed officers. Riff two holding pickup Budweiser, exited the and he took Recknagel approached drinks as the truck and two pointed flashlight separate Fontana, his on Riff. In vil- lage prohibit open public ordinances intoxicants in Seeing Recknagel truck, motor vehicles. Riff exit the possessed open was concerned that Riff intoxicants the truck. Recknagel

¶ 6. directed Riff to hand over the bot- complied, Recknagel tle. Riff noticed that liquid. bottle still contained inch Officer about one Recknagel got you," remarked, "I to that or words effect, and the two men to the walked back pickup, Recknagel where asked Riff for identification. standing Recknagel truck, at the rear While inquired any open in whether there were beer bottles replied truck, the Recknagel and Riff in the affirmative. Officer go get if it," asked he "could or "take a right look," answered, and Riff ahead."2 The "Go exchange Recknagel comfortable, Riff and was between polite, even relaxed. Recknagel explained

¶ 7. Officer that he then Recknagel Riff that he under arrest. believed told was prohibiting open intoxi- Riff had violated the ordinance Riff, hand, in motor on the other cants a vehicle. statement, right that Riff s "Go The State does not contend ahead" constituted a consent under the "consent to search" exception to the Fourth Amendment. Consent is one of the exceptions requirement. to the warrant See State v. established (1985). 13, 18, Douglas, 2d 365 N.W.2d 580 Wis. suppression hearing that Officer testified Recknagel arrest, did not state he under did not was him, and did read Riff his Miranda handcuff rights.3 not only getting presumed Rather, Riff he would be consumption, public a "ticket" or citation for possession open alcohol in a vehicle. As a "ticket" for only thought pay result, Riff he a fine and not would police station. . taken to the Passenger stepped ¶ 8. Pallone had out of the pickup Recknagel at the same time as Riff. While squad car, the other officer seated Riff Pallone unguarded squad car and the truck. stood between Recknagel point, specific that at this no testified facts posed him led to believe that either Riff or Pallone danger. nothing Indeed, the situation made about Recknagel pat-down that a either man believe necessary. Recknagel reapproached pickup

¶ 9. As Riff s on search, the driver's side to conduct a he noticed that by walking parallel Recknagel him Pallone followed along opposite side of the vehicle. Pallone then by passenger stood door. put zippered,

¶ 10. Pallone his hands on a blue- green bag duffel that rested on the middle of the truck Recknagel, cab's front seat. To Officer Pallone bench appeared spoke He nervous: short sentences and kept looking up and down at the officer and the duffel bag. Pallone commented that he wished to remove the bag. Recknagel duffel directed him to leave the Arizona, 3 Miranda v. 384 U.S. 436 Based on Officer Recknagel's testimony, finding the court made a of fact that at point, Recknagel this did tell Riff that he was under arrest. The reliable, Recknagel observing circuit Officer court found he stronger, very "didn't make his case look but he testified frankly." adding planned bag

alone, that he to search the duffel Recknagel it was situated inside the vehicle. because suggested behavior, later testified that Pallone's which bag something to the officer that the duffel contained [ ] supposed see," he "wasn't to know about or caused safety: "I concern for his own didn't know what was bag, weapon possibly if inside of that there was a inside bag, maybe open the or there could have been more bag." Recknagel containers of alcohol inside the indi- cated that are trained to assume that there is a potential for harm in similar he encounters. When saw bag, Recknagel suspected reach the Pallone for duffel might reaching weapon. Pallone for a Recknagel ¶ 11. instructed Pallone to back walk kept truck, to the rear of the where the other officer an eye Recknagel on Pallone while searched the vehicle. Recknagel through glove cab, looked the in the com- partment, During and under seats. the course pack ripped open, search, beer, he found missing it. with two or three bottles from Riff testified Recknagel pack open found the 12 of beer with point placed in the full bottles at this it back of testimony clarify pickup Recknagel's truck. does not he did what with beer. Recknagel luggage

¶ 12. Officer saw two airline bag's tags that identified Pallone as the duffel owner. Recknagel bag. then searched the duffel He testified looking relating weapons that he was for and evidence charge. open Upon opening duffel to the bag, intoxicants Recknagel personal items, Officer saw a number of including clothing, products. shoes, and hair care up clothing, Recknagel he lifted noticed that When enough foot room remained the two-and-one-half long open or, duffel to conceal an container of beer handgun, any type "[a]ny type knife, of a a reasoned,

he weapon used to hurt us." of a that could be clothing, Recknagel

¶ also Underneath the 13. bags. open, 150-count, box of clear sandwich found an Recknagel Although train- that, testified based on his baggies usually ing experience, plastic are and substances, he narcotics or controlled associated with eight approximately explained box, to 10 that the also long, potentially weapon. could contain a inches baggie open four-ounce, box, In a white 14. the caught plastic labeled "Inositol Powder" bottle Recknagel opened Recknagel's eye.4 the bottle Officer large containing full, that it amount of and saw was Thinking powder might powder. cocaine, be white baggie Recknagel He examined the inside of box. stage, baggie he did testified that at this knew box looking and he not inside not contain a beer bottle was weapon. for a box Recknagel plastic baggie ¶ 15. noticed a tied into baggie the "Inositol bottle. The a knot next to Powder" ball, contained a hard white about one inch diame- powder. Assuming comprised to ter, of a white ball baggie, Recknagel bottle, and cocaine, seized the bag. Recknagel placed Pallone arrest the duffel under transported him and Riff the Fontana Police to Department. station, At read the Miranda Pallone department

warnings Nonetheless, from a form. agreed questions, spoke to some and he Pallone answer 4According complaint, inositol is a common to the criminal cutting agent Although Recknagel for cocaine. Officer testified label, that he read the word "inositol" on the bottle the circuit Recknagel cutting stated that it was a court found never might agent presence for cocaine or that he knew the of inositol activity. implicate drug Recknagel Officer for 15 to 20 minutes. Pallone

with belonged adding him, that the duffel stated Although he he used inositol as laxative. would precise ball, address the nature of the white Pallone Recknagel purchased told he had the substance from a Chicago wrong that it middleman conceded According Recknagel, possess it. to Officer at that by point Pallone said that he did not want more trouble making incriminating statements. laboratory analysis

¶ revealed that 17. After grams cocaine,5 the the white ball consisted of 5.85 County Attorney District filed a Walworth Assistant Complaint September 15, 1997. The com- Criminal on plaint charged possession Pallone with of more than grams grams not than 15 of cocaine or five but more contrary deliver, cocaine with intent to Wis. base 961.41(lm)(cm)2 (1995-96).6 § Stat.

PROCEDURAL HISTORY 2, 1997, On Pallone submitted a 18. December suppress, arguing police the that obtained motion during cocaine evidence an unlawful bag.7 Recknagel Riff of his duffel seizure Officer 5Laboratory analysis powder that the also indicated white was, fact, plastic labeled "Inositol Powder" thé bottle inositol. 6 the to the Wisconsin Statutes are to All references indicated otherwise. 1995-96 volumes unless the initially challenged also admission state Pallone Recknagel Village of Fontana he made to Officer ments admissibility challenge .the of that evi Department. He did not appeals or to this court. appeal in his either to the court of dence (Ct. Pallone, n.1, State v. 228 Wis. 2d N.W.2d 1999). App. hearing February suppression

testified at a on 1998.

¶ 19. The circuit court denied Pallone's motion to concluding suppress 13, 1998, that on March high- search was as incident to Riffs arrest. After valid lighting exceptionally candid manner in which Recknagel testified, the circuit Officer court made a finding Recknagel fact that told Riff he was "under arrest" before the search of the vehicle occurred. Once arrest, entitled to Riff was under were continue searching agreed for more beer. The court that beer normally does constitute but nonethe- contraband presence in a can less concluded that of beer vehicle be only contrary offense, evidence of an even if an offense to an ordinance. Although expressed circuit court dis- belongings

comfort with the notion that of a presumably passenger innocent can searched inci- explained arrest, dent to driver's the court expressly case law authorizes such searches. Officer Recknagel, justifiably observed, court con- might grab weapon cerned Pallone from the bag.8 bag weapons duffel The search of the duffel for Kennedy Judge remarked: that, My ][ conclusion from the facts seemed to be the man before bag, Recknagel] [Officer reached for no had intention to it-r-I'm not even sure he had an intention to search the car—but out, bag [Pallone] that when reached for and tried to take that with, [whoa], trying instincts of the officer took over he's hide something. trying I'm I interested. What is he to hide? want to know what it is. And I realize in the defendant this case tried to remove his duffel bag. Certainly going indicated he was But I think the to. officer was "No, perfectly justified particular point saying, stop." at that when Why? danger weapons. Admittedly, Because of the of he wasn't too Recknagel led to see the "Inositol Powder" bottle and laying plastic baggie next to it. Once the officer saw items, reasoned, those the court he was entitled to "logical in its extend the search direction" because probable cause to there was believe that bottle and baggie contained controlled substances.

¶ 21. After the circuit court denied Pallone's suppress, attorney motion to the district amended the allege possessed grams information to that Pallone five or less of cocaine or cocaine base with intent to deliver 961.41(lm)(cm)l. § Stat. violation Wis. On March guilty pled charge 26, 1998, Pallone to this reduced pursuant plea agreement. to a The circuit court with- placed probation held Pallone's sentence and him on years including foi; conditions, three with a four-month period county jail. of incarceration in the then Pallone appealed suppression Pallone, denial of his motion. 228 Wis. 2d at 273. appeals affirmed. Pallone, 22. The court Knowles, 2d at 273. The court harmonized

Wis. Houghton, 295, decisions U.S. 526 U.S. two by issued the United States Court after the ruling suppress. court made its in the motion to circuit Pallone, 228 Wis. 2d at 276-79. distinguished appeals this 23. The court case Knowles,

from a case which the Supreme Court held that a search incident warrantless the Fourth to the issuance of a traffic citation violated afraid; [mind]. And but it was a matter —an item of concern of that, objectively, really besides he better be concerned. If he wasn't concerned, very point someone he should have been at when pull grab to reach in and this it out. all of sudden wants himself, protect you be concerned. As an officerwho wants to better every right [the I also in that case to search duffel So think he had bag] weapons protection though particu- he wasn't for for his even larly concerned about it.

175 The of a citation an Amendment. issuance without authority give to to search under an arrest does not rise requirement exception the constitutional warrant to stop poses fewer threats to because a routine traffic discovery safety compromise and does not officer preservation Pallone, of evidence. 228 Wis. 2d at 116-17). By (citing Knowles, at con- 276-77 bag trast, the search of the duffel was incident to a "triggered heightened arrest that concern for valid safety of the officer."Id. at 278. Finding ¶ 24. that the Knowles decision did not bag, apply to the search of Pallone's duffel court appeals Houghton, instead relied on which the pocket- Court determined the search of belonging passenger proper an book automobile was probable to search the because had cause vehicle U.S. 307. The Court turned to for evidence. 526 at Ross, probable decision in States v. U.S. its earlier United (1982), it had held that if cause which justifies police may inspect every part search, passenger compartment capa- and its contents vehicle concealing object Pallone, of the search. ble of 301). (citing Houghton, In Wis. 2d 526 U.S. at Houghton, applied passenger the Court the Ross rule to belongings, concluding validity of a search hinge property does not suspected on whether the owner of the is crime,

of a but rather there is rea- whether sonable cause to that the area to searched believe yield object (citing Houghton, of the search. Id. will 302). 526 U.S. at appeals emphasized

¶ 25. The court of that the Houghton requires only probable search, rule cause to probable cause to arrest. Id. at 280. The court proper determined that the search ofthe duffel Recknagel Officer had cause arrest because Riff and therefore to search truck and its contents relating for evidence to arrest. Id. at 280-81. The Recknagel court concluded that once found the "Inosi- baggie tol Powder" and the box, he could not be expected incriminating simply to overlook the evidence because it was not the item, beer, same for which he initially had searched. Id. at 281.

STANDARD OF REVIEW ¶ 26. The issue this case is whether the search proper of Pallone's duffel under the search and provisions seizure of both the United States and Wis- application consin Constitutions. The of constitutional principles evidentiary to a set of or historical facts poses question of constitutional fact. State v. Martwick, ¶5, 17, 2000 WI 801, 231 Wis. 2d 604 N.W.2d 552. engages two-step inquiry

¶ 27. This court in a analyzes when it issues of constitutional fact. Id. at reviewing suppress, ¶ First, 16. a motion to this applies court a deferential standard circuit findings evidentiary, court's ¶ historical Id. facts. findings fact, 18. We thus affirm the circuit court's they facts, and inferences drawn from those unless are clearly Id.; Harris, 243, erroneous. State v. 2d Wis. (1996). 249-50, Second, 557 N.W.2d 245 review the we application principles circuit court's of constitutional evidentiary Martwick, facts. 2000 WI This question step presents second of law that we review independently. ¶ 18; Richardson, Id. at State v. 128, 137-38, Wis. 2d 456 N.W.2d 830

ANALYSIS United to the Amendment 28. The Fourth §I, 11 the Wisconsin art. States Constitution9 protect citizens from unreasonable both Constitution10 historically follows This court and seizures. searches interpretations States of the United provi- seizure the search and it construes Court when 2d Secrist, Wis. State v. constitutions. sions of both (1999). By interpreting 208-09, 589 N.W.2d provisions that is consistent with in a manner these by precedent Court, we established consistency application of constitutional in the Fry, ensure principles. 173-74, 388 153, 2d v. 131 Wis.

State (1986). 565 N.W.2d per unreasona- search is se A warrantless specifically and established of the "few unless one

ble well-delineated justifies exceptions" the search. State Phillips, 794 180, 196, 2d 577 N.W.2d 218 Wis. v. (1998) Hampshire,

(citing Coolidge 403 U.S. v. New 9 United States Constitution Amendment to the The Fourth provides: houses, persons, right people secure their

The of the seizures, effects, against and papers, unreasonable searches and issue, upon proba- violated, shall but shall not be and no Warrants affirmation, cause, by particularly supported and Oath or ble searched, things persons describing place or to be to be and seized.

10 I, states: 11 of the Wisconsin Constitution Article § houses, persons, right people in their of the to be secure The against papers, searches and seizures effects unreasonable upon probable violated; shall issue but shall not be and no warrant affirmation, particularly cause, by supported describ- oath or things persons ing place or to be seized. to be searched and the 178 (1971)); States, 454-55 v. Katz United proving 347, 357 The State bears the burden of that warrantless search falls under one of the estab- exceptions. Katz, lished See 389 U.S. at 357. recognizes multiple excep ¶ 30. The now law general proscription against tions to the warrantless Milashoski, searches. State v. 99, 111-12, 159 Wis. 2d (Ct. 1990), App. 21 464 N.W.2d aff'd, Wis. 2d (1991) (listing exceptions N.W.2d TO and con each); trolling authority Ross, for see also 456 U.S. at exceptions 806-09. One of these allows warrantless if searches the search is conducted "incident to a lawful § 968.II;11 arrest." Wis. States, Stat. Abel v. United (1960); Fry, U.S. 217 131 Wis. 2d 153. A second allows law enforcement officers to search a motor vehicle if without warrant the officers have cause to object believe the vehicle contains the exceptions Ross, search. 456 U.S. at 806-08. Both precedential derive from distinct strains and reflect unique requirements. rationales and We therefore dis cuss each in turn. provides: Wisconsin Stat. 968.11 § Scope of search incident to lawful arrest. When a lawful made, may reasonably arrest a is law enforcement officer search person person's arrested and an area within such immediate presence purpose for the of:

(1) attack; Protecting the officerfrom (2) Preventing person escaping; from (3) Discovering seizing crime; and the fruits of the or (4) instruments, Discovering seizing any things and articles or may of, may which have used in the commission or been which of, constitute evidence the offense. Incident to Arrest

1. Search Officer ¶31. consider whether We first permissible Recknagel's of the duffel exception to the incident to arrest" under the "search requirements. arrest incident to The search warrant pas- exception permits search of the warrantless any compartment senger containers a and of vehicle compartment incident if the search is in that situated Belton, York v. a arrest. New to lawful exception arrest incident to 32. For the search apply, Knowles, 525 U.S. must an arrest. there to "bright requirement is a line of an arrest 117-18. The (quoting Robinson, States v. United rule." Id. at 118 (1973)). "fact the lawful Because the 414 U.S. 218 authority Robinson, search, to establishes the arrest" require exception does not a show- 235, this 414 U.S. at ing police had cause believe that the officer generally See id. at contraband. that a vehicle contains gives is an arrest rise to two The fact that there 234-35. justify heightened search: warrantless concerns (2) (1) safety, need to need to ensure officer preserve Knowles, U.S. at evidence. discover 116-18. § the decision Stat. 968.11 and 33. Under Wis. in Chimel v. Cali States Court

of the United (1969), the search incident U.S. 752 fornia, exception those officers to search allows arrest the "immediate control" a vehicle within areas of Fry, person This 131 Wis. 2d at 165. under arrest. acknowledges requirement exception to the warrant officer situations, it is reasonable for the in arrest might reach "an arrestee the area into which to search evidentiary grab weapon items." or in order to Fry, Chimel, 763; 395 U.S. at see also 131 2dWis. at recognized may 164. Chimel that warrantless searches necessary guarantee safety officer and to discover Fry, See evidence. 131 Wis. 2d at 165. Supreme

¶ meaning 34. The Court refined the of which areas of a vehicle are within an arrestee's Belton, "immediate in control" 453 U.S. 454. The Court recognized terminology the "immediate control" adopted provide did Chimel a workable standard calibrating scope for aof valid search. Id. at 460. The Court therefore extended the rule of Chimel to passenger compartment. permits include the Id. Belton passenger compartment the search of a when occu- an pant of the is vehicle under arrest. Id. expressly permitted 35. The Belton Court also any inspection pas containers found within the

senger compartment, open or whether Id. closed. at 460-61. The Court determined that a lawful custodial justifies infringement privacy arrest interests. holding, Id. at 461. Based on the Belton this court held glove that a search incident to arrest extends to the compartment Fry, a vehicle. 131 Wis. 2d 180. though The search was lawful even both defendants Fry separate squad handcuffed, were confined in cars, guarded by officers at the time of Id. the search. (Bablitch, dissenting). Theory J., 186 n.l decision thus gauge actually did not whether the' defendant had access to the interior of the vehicle. See State v. Mur dock, 217, 233, Wis. 2d N.W.2d years Belton, In the since the United States "bright-line Court revisited the rule" under- pinning exception: the search incident to arrest A exception requires warrantless search under the an Knowles, actual arrest. U.S. 118. Warrantless exception permitted are under this when searches not placed is not receives a traffic citation but a driver under arrest. Id. police pulled

¶ Knowles, In an Iowa officer 37. during stop a traffic because the over routine a vehicle traveling per hour in a Knowles, miles driver, was Although per 114. zone. Id. at Iowa law 25 mile gave hour for discretion to arrest drivers traffic officers the only a violations, the officer in Knowles issued issuance, at After the traffic citation. Id. 114-15. its engaged full car and in a the found officer marijuana "pot pipe." Id. 114. The and a officer charged Knowles, with a viola- arrested who later tion laws. Id. of Iowa's controlled substance sought suppress evidence, the to 38. Knowles exception arguing to did that the search incident arrest apply he arrest. Id. at not because was not under suppression The court his motion. 114-15. trial denied Supreme court, trial Id. The Iowa Court affirmed the reasoning exception to a "search incident citation" applied can the Fourth Amendment when the to arresting officer has cause to arrest (citing Knowles, Id. at 115-16 State v. driver. (Iowa 1997), rev'd, 525 U.S. 113 N.W.2d (1998)). by In decision Chief 39. a unanimous written Rehnquist, reversed, Court hold-

Justice ing that the search violated the Fourth Amendment. holding The the two historical Court's underscored justify to rationales that the search incident arrest safety (1) heightened exception: threat officer (2) implicit arrest, in an the need to discover and preserve trial. evidence that later can be used at See id. at 116-17. explained

¶ 40. The Knowles Court these exception implicated rationales two ing for the are not dur- speeding danger First, issuance of a citation. officer arrest, an "flows from fact of the and its proximity, uncertainty." stress, attendant Id. at The issuance of citation for a minor traffic viola- by place any tion, contrast, does the officer in exposure extended Rather, with driver. Id. a cita- usually product during tion is the encounter, a brief likely person it which is less that a bewill hostile. Id. preserve Second, the need to evidence for later use at speeding trial does not arise when driver receives a instances, citation. In most once issue a citation, necessary prosecute the "all evidence to that offense been at instance, had obtained." Id. 118. For under the "[n]o of Knowles, facts further evidence of excessive going speed person.. was to be found either on the .or in passenger compartment." Id. agree ¶ 41. in Knowles, Commentators Supreme Court clarified that "a search incident to really says something arrest means what it other —if beyond jus- occurs, than an arrest one should look this justify Thus, tification to the search."12 if even exception might apply not to the issuance of a traffic independent citation, other, "officers have bases to protect weapons for and themselves from dan- ger." may Id. at 117. Those bases include the other recognized exceptions to Amendment, the Fourth including exception cause to search we examine below. See id.

12 Bright-Line Rules: Devel Gillespie, T. Honorable Daniel opment During Stops, Law Search and Seizure Traffic (1999) Loy. 1, Major U. (quoting Chi. L.J. 26 Walter M. Amendment, Hudson, Developments A Few New in the Fourth 35). 25, Army 1999-APR Law. Having explored scope

¶42. and rationale exception, underlying we the search incident arrest explain applies this it to Pallone. Under next how (1) exception, was an arrest we consider: whether there (2) bright-line requires, rule of Knowles and as the safety heightened or a need whether a threat officer justified preserve evidence to discover or warrant- requirements met, less If then Belton search. these are Fry passen- authorize a warrantless search open ger compartment any containers, closed, or compartment. in that located case, In the search incident to arrest this exception applies Wis Riff under arrest. because 800.02(6) person may provides § "A that, Stat. consin a warrant for the violation of be arrested without municipal Moreover, arrests for for ordinance." civil Fry, per are not se unconstitutional. 131 Wis. feitures Consequently, 2d 158-66. the Fourth Amendment preclude incident to arrests for non does not searches King, criminal violations. State v. 142 Wis. 2d (Ct. 1987) (citing App. 210-11, 418 N.W.2d Gustaf (1973); Fry, Florida, 131 Wis. son v. Mabra, 613, 623-24, 2d 2d 153; State v. 61 Wis. (1974)). For incident to arrest to N.W.2d 545 a search just arrest, valid, there must be an actual suspect likelihood that a be arrested. reasonable will argument, proposed ¶44. At Pallone that oral presents question under arrest of whether someone is law, make and he therefore asks this court to its own finding independent that Riff was not under arrest. reviewing understanding the standard for Pallone's of only partially is an arrest is correct. Whether someone "custody" question is a in "under arrest" or in of law

184 undisputed. those cases which the facts are State v. (1991). Swanson, 437, 445, 475 164 2dWis. N.W.2d 148 disputed suppression To the extent that facts are in a deferentially accepts matter, however, this court findings they factual of the circuit court unless are clearly Guzy, erroneous. See v. 663, State 139 Wis. 2d (1987).13 671, 407 N.W.2d 548 question dispute ¶ 45. The of Riffs arrest was in suppression hearing dispute at the appeal. inis in this express finding

The circuit court made an upon Recknagel's testimony, fact. Based Officer the cir cuit court found Riff that under arrest. The court praised particularly qualities frank of the testi mony, noting gratification Recknagel with did not exaggerate or otherwise color his rendition of the accept findings events. We these it is because the role of listening testimony, appel the fact finder to live not an relying transcript, gauge late court on a written credibility Hughes, v. 24, witnesses. State 2000 WI ¶ 2 n.1, 280, 2dWis. 670 N.W.2d 621.

¶ 46. Because this awas search incident to an arrest, anot search incident to the issuance of a traffic apply arrest, citation with no the Knowles rule does not to this case. explore particular

¶ 47. We next whether the cir- gave cumstances of this case rise to either the two justifications historical for the search incident to arrest exception. firstWe consider whether this situation posed heightened safety. threat to officer The facts of compelling analyzed this case are more than those explicit if Even the circuit court does not make an factual finding, finding we assume that the court in a manner made supports Jensen, 2d its final decision. Sohns v. Wis. 453, 105 N.W.2d occupants

Fry. in both This not a scenario which was by guarded police, handcuffed, and a vehicle were squad Here, conceivable that to car. it was confined a unguarded, a could have seized Pallone, who stood weapon Officer when he followed from the duffel occupant, Recknagel An no less back to the truck cab. safety, danger pose arrestee, can to officer see than an passenger, Robinson, no less 414 U.S. at and objects weapons arrestee, can seize or than an escape. an officer or effect an assault safety during officer an arrest 48. The threat to arrest, and its attendant from the fact of "flows uncertainty, proximity, from the stress, and and not grounds Knowles, for 525 U.S. at In this arrest." Recknagel danger from the case, the to Officer flowed uncertainty posed proximity Riff Pallone once and under arrest. exchange Recknagel first, 49. At between polite not hostile rather and relaxed.

and Riff was but posed apparent in threat; fact, no he stood Pallone squad unguarded car the truck. and between importance safety paramount is of fourth "Police jurisprudence." Murdock, State v. 155Wis. amendment (1990) (Abrahamson, J., 217, 237, 2d N.W.2d dissenting). atmosphere Here, Riff altered once sat Recknagel squad reapproached car and Officer steps along paralleled the officer's the truck. Pallone passenger appeared side, he nervous as he bag. Recknagel suspected reached for the duffel Officer might reaching weapon, he for a testi- Pallone punctuated training and instinct his fied that his bag had sufficient to conceal a concern. The duffel room large enough weapon, baggie con- and the box was weapon. aptly stated, if tain a As the circuit court Recknagel really very "wasn't concerned, he should point" have been at that and had reason to search for weapons. agree the We with circuit court that the total- ity presented potential circumstances for harm to the officers. justifi-

¶ 50. We to now turn the second historical exception, cation for the search incident to arrest the discovery preservation and of evidence. This was not a Knowles in situation which the issuance of a citation speeding gave for officers the the all evidence neces- sary prosecute Here, to evidence, the offense. further namely likely open beer, bottles of were to found in passenger compartment. stepped holding

¶ 51. When Riff out the truck open Recknagel an bottle, beer had Officer reason to suspect open there that were more in bottles beer Village motor in vehicle violation of the of Fontana Recknagel important, More ordinance. Riff told that open Recknagel bottles, truck contained he told "goright situation, to ahead" look. In an arrest we expect stop looking cannot an to Although officer for evi- further Recknagel dence of the offense. Officer open the one held, confiscated bottle Riff it within scope investigation preserve of his to discover and open Admittedly, additional evidence of beer it bottles. unlikely occupants spil- is of a truck would store open bag lable, bottles of in a beer duffel while the they vehicle is in motion. But it is conceivable that might open zippered conceal the bottles in a duffel they pull parking step once into a lot and out. adopt

¶ 52. Pallone this asks court the reason- ing by Washington Supreme set forth in Court (Wash. 1999). Parker, Parker, State v. In P.2d police the court three in consolidated cases which passenger belongings searched incident to the arrest apply decline to the Parker Id. at 76. We the drivers. holding not, are as Pallone con- those cases because factually did not similar to this one. Parker tends, implicate that buttress the search the two rationales exception. Parker, no In had incident to arrest dangerous, passengers suspicion armed, were Moreover, the Id. at 82. or had concealed evidence. violations, for traffic in Parker were arrested drivers which, Knowles, as no further for much there was tangible evidence to be lost. Id. Although Pallone himself was under exception applies

arrest, the incident arrest Knowles, case, unlike in Parker or because this gave here rise to both of the two histori- circumstances exception, namely of the the cal rationales at heart safety arresting officer and the need to discover of the preserve and evidence.

¶ 54. The warrantless search Pallone's duffel legal bag a search incident to an arrest. Under was Fry, Recknagel Officer was authorized to Belton passenger compartment of the conduct search any compart- situated in truck and containers Fry, according appropriate search, ment. That to was though sitting squad legiti- Riff was in the car. Its even macy strengthened here Pallone was because was bag. standing length at arm's from the duffel The authority broad, search incident to arrest is Robin- to son, 232-33, 414 U.S. at and so it remains under the facts of case. this passenger property

¶ 55. to exclude We decline exception under the from the search incident to arrest may passenger facts of partment case. Police search the com- this "occupant" a motor an is vehicle when Together, Belton, U.S. 460. under arrest. Belton "any Fry containers" situated the search of allow Fry, compartment. Id.; 2d at 176-77. Wis. reality contrary ¶ A rule would overlook 56. passenger weapons can reside and evidence belong- easily they just property can in arrestee as as adopt ings.14 rule, we would If this court were to such provide occupants the incentive to sabo- vehicle with legal by concealing weapons tage an otherwise occupant's an in areas that remain within or evidence easy danger Recknagel was case, In this reach. by Riff s arrest had been diminished the fact that bag the duffel was within consummated and because Pallone's reach. that the warrantless 57. We therefore conclude proper the incident the duffel was under

search of requirements exception of to to arrest warrant §I, 11 of the Wiscon- Fourth Amendment and art. sin Constitution. Search a Motor Vehicle Cause to Probable Officer next consider whether 58. We

Recknagel's there constitutional because search was exception permits probable the war- cause. This any or containers within rantless search of a vehicle compartment passenger if there is cause hold the or the containers that the vehicle to believe object rule at 824. This Ross, of the search. parking stopped lots. to vehicles extends California (1985). exception Carney, The 386, 392-93 471 U.S. v. belongings capable applies passenger of con- also 14 greater consequence, as we out even principle This is of below, that allows a warrantless exception line under a motor vehicle. See probable cause to search police have when (1999). 295, 303-06 Houghton, 526 U.S. Wyoming v.

189 taining object Houghton, of the search. 526 U.S. at again emphasize 307. We that the rationales and requirements exception for this differ from those that satisfy exception. key the search incident to arrest One exception requires overriding distinction is that this an probable standard of cause. "pre

¶ 59. Warrantless searches of homes áre sumptively unreasonable;" searches of vehicles are not. (1984). Wisconsin, See Welsh v. ing 466 U.S. 740, 749 Dur years, the course of the last 75 Court recognized unique has that the nature of automobiles apart protected sets them from other areas from war- rantless searches under the Fourth Amendment. See (1925). States, Carroll v. United 132, 153 267 U.S. probable exception ¶ 60. This cause for automo key distinguish biles is built on two factors that motor vehicles from other areas to be First, searched. "ready mobility" likely of a vehicle makes it more during contraband or evidence of a crime will vanish period necessary Hough to secure a valid warrant. (citing Carney, 390); ton, 526 U.S. at 304 U.S. persons Carroll, 267 U.S. at 153. Second, have reduced privacy expectations expectation vehicles, motor an significantly relating that "is less than that to one's Carney, home or office." 471 U.S. at 391. For instance, people "pervasive reg are accustomed to the scheme governing ulation" their automobiles. Id. at 392. Moreover, vehicles, homes, unlike are not devices for storing personal they effects, move about the road ways occupants with their and contents in full view. Lewis, Cardwell v. Even ability readily when a vehicle in motion, is not its to be justify provided mobile will search, warrantless overriding the ney, standard of cause is met. Car Maroney, 92; U.S. at Chambers v. 391 - exception if can arise even Thus, the 42, 52 U.S. stationary place" park in a like a is "found the vehicle (probable Carney, ing 388, cause to 471 U.S. at lot. home). parked motor Supreme extend ¶ Court did not first, At 61. exception located within a vehicle. to containers this Chadwick, 433 U.S. instance, in United States v. For luggage implicates (1977), the Court reasoned privacy. higher expectation held that Chadwick they when the Fourth Amendment violated though probable cause footlocker, even searched a although not the footlocker, that the existed to believe marijuana. at 13-14. Simi- itself, Id. contained vehicle larly, Sanders, 442 U.S. 763-64 in Arkansas v. privacy (1979), reduced the Court observed exception upon expectations do not is based which this luggage, to if cause exists even extend marijuana. a suitcase holds believe and Sanders decisions the Chadwick 62. Both luggage, prohibited not other search of the warrantless luggage impli- generic vehicles, because containers expectations. privacy Sanders, the In cates enhanced implied containers, unlike Court that some protections, trigger privacy luggage, may the same appearance suggesting a container that the outward might Amendment the Fourth determine whether applies. foreshadowed n.13. This observation Id. at 765 degree difficulty predicting which privacy appearance and which connotes of a container protections. appearances Amendment Fourth invoke proved appearance" standard The "outward opinion plurality in Rob unworkable, as the Court's (1981), In showed. California, bins v. may not officers Court found that Robbins, the divided appearance alone. outward based on search containers writing plurality, Stewart, Id. 425. Justice for the rejected luggage constitutionally the notion that is dis- tinguishable worthy" from "less containers. Id. Robbins thereby precluded plastic the warrantless search of a people, plastic bags because some all, after use as luggage. Id. at 426-27. Against background, sug- 64. this the Court

gested "balanc[es] that a test that the multifarious presented by circumstances different cases" under the probable cause threshold offers little with which to guide police engaged competitive officers in the "often enterprise ferreting Dunaway out crime." v. New (1979). York, 200, 442 U.S. 213-14 One standard was measuring probable essential for the reasonableness of eventually search, id., cause to and the Court created one standard for containers situated in vehicles. In Ross, 800, 456 U.S. at Court held that probable when law enforcement officers have cause to they may search a warrant, vehicle without a also con- duct a warrantless search allof containers found inside capable containing object the vehicle of the search. See also Acevedo, v. 565, 500 U.S. California ¶ 65. The Ross Court reached this conclusion for distinguished First, two reasons. the Court both Chad- finding Sanders, wick and explored that those decisions proba- situations which did not have only luggage ble cause to search the vehicle itself, by Ross, it. within Ross, at 814. In contrast, probable cause existed to believe that the automobile contained contraband. Id. at 824. The Court "object stressed that search," not the "nature parameters legal of the containers," defines the of a recognized search. Id. at Second, 824. the Court practical benefits of a rule that extends the Noting that Id. at 822. all containers. standard to rarely goods "[contraband are across the trunk strewn declined to burden law car," the Court or floor of require to that would officers a rule enforcement with they permissible if encoun- halt an otherwise required Id. at 820. warrant. tered a container no distinction The Ross Court drew possession of the driver containers between Houghton, belonging passengers. See containers Houghton, decision In a six-to-three U.S. at 301-02. by "if Scalia, the Court reasoned authored Justice limited to that Ross announced were the rule of law belonging than driver, or contents other contents to the belonging passengers, have one would those expressed." expected limitation to that substantial Houghton applied Ross rule to therefore Id. at 301. proba- belongings, holding passenger with that officers may inspect also search a motor vehicle cause to ble object capable concealing the those containers Id. at 307. search. Highway Houghton, Wyoming Patrol a 67. In speeding pulled and dis- for over an

officer automobile during faulty light playing a routine traffic a break Houghton, stop. driver and two U.S. at 297. The occupied passengers Id. at 297-98. As the vehicle. hypodermic questioned driver, he noticed a officer pocket. syringe The driver con- in the driver's shirt drugs." Id. used it to take "that he ceded backup Following admission, officers this 68. passengers and out of the vehicle the two directed compartment passenger for contraband. searched the belonging pocketbook to one of Officers found a Upon Houghton, passengers, search- the backseat. on pouch ing pocketbook, officers discovered drug parapher- object containing syringe, wallet-like methamphetamine. Houghton sought nalia, and Id. suppress evidence, the trial court denied the suppress, Houghton motion to was convicted. Id. at Wyoming Supreme ¶ 69. The Court reversed the holding conviction, that the search violated the consti- tution because the officer or "knew should have known purse belong (quoting that the did not to the driver." Id. Houghton 1998), (Wyo. State, v. 956 P.2d (1999)). rev'd, 526 U.S. 295 The court reasoned that passenger property scope exceeds the of a valid search opportunity "unless someone had the to conceal the personal contraband within the effect to avoid detec- probable tion" and officers have cause to believe placed passenger prop- contraband has been within the erty. Id. holding

¶ 70. The Court reversed, "police may officers with cause to search a car inspect passengers' belongings found in the car that capable concealing object are of the search." Id. inquiry at 307. The Court determined that the turns property suspected not on whether "the owner of the is of crime but that there is reasonable cause to believe specific 'things' that the to be searched for and seized are located" therein. Id. at 302. Relying

¶ 71. Ross, on U.S. at Houghton every Court reasoned that container within may a vehicle and its contents contain contraband. Houghton, explicitly 526 U.S. at 301 - 02. The Court exception declined to create an for containers that are passenger property. Excluding passenger Id. at 304. property scope impair from the of a valid search would passengers [ ] effective law enforcement because "often engage[ ] enterprise in a common driver," with the contraband.15 concealing interest of the same sharing Moreover, exception" Id. at 304. "passenger property contraband a driver discovery preclude would belongings, in even without conceal might, passenger Id. at 305. knowledge. or consent passenger's passengers has that recognized 72. This court Harris, privacy. expectations and drivers share are not however, 2d at 255. These expectations, Wis. drivers, have reduced like Passengers, unlimited. in they transport that for privacy expectations items In at 303. addi- Houghton, motor vehicles.16 is less intrusive tion, passenger property a search of Searches of a passenger's person. the search of than traumatic consequences fewer implicate property inherent protection the heightened do not invoke id. at 307-08 Id. 303; (Breyer, searches of person. observation, Supreme Court distin making In this drivers present between enterprise" often guished the "common can complicity in which other situations passengers from at 304 easily. Houghton, 526 U.S. not be inferred as unwitting tav Houghton from "the passenger (distinguishing (1979)). Illinois, 444 U.S. 85 in" Ybarra v. patron ern a recent United States attention to 16 Pallone directs our —States, —, 120 decision, U.S. v. United Bond Supreme Court a duffel (2000), that the search of which held S. Ct. 1462 the Fourth Amendment. passenger violated belonging to a bus analyzed the distinguishable. The Bond Court The Bond case is exception under the Fourth "public or observation" "plain view" implicates a different exception 1464. That Amendment. Id. at examining an whether exception, than the automobile inquiry privacy and whether expectation of had an actual individual recognize as society prepared is expectation is one historically exception contrast, By the automobile reasonable. inherent privacy expectations reduced recognized has automobile travel. concurring) (citing

J., Re, United States v. Di 332 U.S. (1948)).17 belongings 581 Police examination of does deprive an individual of the freedom of movement. (citing Guzy, Harris, See 2dWis. at 256-57 674-75) (same person Wis. 2d at standard of seizure of applies passengers). to drivers and Although Houghton

¶ 73. Court, not unlike appeared the Knowles Court it, before to draw another "bright analy- line" in the sand of Fourth Amendment Houghton, exception, sis, like other cases under this requires showing overriding still a threshold of the probable Carney, standard of cause. See 471 U.S. at 392. Before can conduct a warrantless search, they probable passen- must have cause to believe that a ger compartment particular object holds the requirement distinguishes exception search. This this exception. from the search incident to an arrest complete excep- 74. To our examination of this briefly tion, we therefore turn to the standards that measure cause. Probable cause does not require degree proof. County a uniform v. of Jefferson Renz, 231 Wis. 2d 304, 603 N.W.2d 541 Depending upon type proceeding an —whether investigative stop, the issuance of a search warrant, filing the issuance of an warrant, arrest or the of a concurrence, In Breyer his suggested Justice pocket usually books "especially contain personal people items that generally keep like to with them at all times" and added that if passenger Houghton wearing were pocketbook, "might it then amount clothing' to kind of 'outer which. . prop .would erly receive protection." increased Houghton, 526 U.S. at J., (Breyer, 307-08 concurring) Ohio, (citing Terry v. (1968)). complaint varying sometimes indistin- criminal — proof apply. degrees guishable Id. at 319-20 (Abrahamson, concurring). In C.J., the warrantless necessary proba- proof context, establish probability" that law enforcement is a "fair cause ble place. particular in a find evidence authorities will (citing Hughes, ¶ Gates, 462 Illinois v. 2000 WI24 (1983)). Gates, U.S. 213, 238 Under U.S. totality test to of the circumstances courts invoke probability exists. whether determine fair probable-cause-to- apply now 75. We exception Pallone to this case. search-a-motor-vehicle argues "contraband" that does not constitute beer ofhis duffel that the search therefore contends improper. meaning of asks us to restrict Pallone prop- illegal prohibited substances, or or contraband to erty possess. produce In or to that is unlawful except per se, under Wisconsin, is not contraband beer possession would be in its mere circumstances which e.g., §§ and 346.935 See, Stat. 346.93 unlawful.18 Wis. (1997-98). receptacles can and beer Nonetheless, beer does not exclu- of a crime. The case law evidence legitimate per sively se as address "contraband" may target Rather, a warrantless search. of concealing belongings capable passenger evi- search Houghton, object U.S. at of the search." dence, "the 307. object Open were the containers of beer Village Recknagel's search for evidence. Two

Officer open illegal possess con- it ordinances made Fontana public The in motor vehicles. in or tainers of alcohol per may se, but "contraband" not have been beer bottle or may possess open an or unsealed 18 Anadult beverages privately in a owned containing receptacle alcoholic 346.935(2) and Wis. Stat. § motor vehicle.

possibility open that containers ofbeer were situated object the truck rendered beer ofthe search.19 Were meaning this court to limit the of "contraband" to the parameters many crafts, that Pallone evidence vital to might proceedings be excluded. agree appeals

¶ 77. We with the court of Recknagel probable carry had cause to aout full search of the truck and its contents for additional containers of open Pallone, beer. See 2dWis. at 280. When Riff stepped holding open out of the truck an bottle and Recknagel open then told there were more bottles probability truck, there was more than a fair Recknagel the vehicle contained additional evidence. had cause cab, the truck and it was "fairly large reasonable for him to search the duffel bag, high, wide, about twelve inches twelve inches maybe long" two, two-and-a-half feet that was situated spacious on the bench in the cab. This container had capacity open to hold additional or closed of bottles support per- beer, evidence that would Riffs arrest and haps charge. Recknagel explained lead to an additional planned bag that he to search the duffel because it was Recknagel apparently located inside the vehicle. thus Ross, followed 456 U.S. at which authorizes the every part search of of the vehicle and its content that may object conceal the of the search. When Pallone bag, upgraded reached for the Recknagel's he the cause for Recknagel search. testified that when he bag, looking weap- searched the duffel he was both for relating open ons and evidence to the intoxicants charge.

19 Similarly, money can constitute "contraband" when it is State, 565, 592, 594, used as evidence. Jones v. 226 Wis. 2d N.W.2d 738 Houghton, was not ren-

¶ the search 78. Under bag belonged improper the duffel dered because inquiry Pallone or turned not on whether Pallone. The bag, open containers the duffel but whether Riff owned Recknagel thing specific for which of beer —the bag. Houghton, might in the duffel searched — at 302. U.S. inspected Recknagel

¶ the duf- After Officer 79. candidly baggie bag upon box, he fel and came looking longer for beer or for that he no stated weapon. cause to believe But there was baggie box con- "Inositol Powder" bottle and therefore substances. We tained narcotics or controlled Recknagel agree had a basis circuit court that with the logical extending If its direction. the search to for serious crime evidence of a more authorities discover during they inspec- search, not halt their a lawful need (citing Robinson, Mabra, 61 2d at 623 tion. Wis. 260). As the court 218; Gustafson, U.S. defy appeals sense to determined, it common would incriminating require evidence an officer to overlook pur- the initial did not relate to the evidence because pose 281; also Pallone, 228 2d at see the search. Wis. Ross, 456 U.S. at 823-25. Finally, contention we address Pallone's privacy. expectation his the search violated Houghton, passenger Riff and driver Pallone

Under Searching privacy. expectation of a diminished shared traumatically intrusive was not a the duffel person. of his and seizure § Constitution 11 of the Wisconsin I, 81. Article expectations greater privacy no individuals

affords provided Fourth Amendment. under the than those respect, some other Wisconsin, in is different from this Washington. states, Parker, like In 987 P.2d Washington Supreme passengers Court afforded privacy protections. premised enhanced The court its long-standing grants conclusion on state case law that greater privacy protections individuals than the Fourth I, Amendment. Id. at 78. Article section 7 of the Washington provides, person Constitution "No shall be private disturbed in his affairs, or his home invaded, authority without of law." Id.

¶ 82. The Wisconsin Constitution contains no "private contrary, similar affairs" clause. On the language virtually § 11 I, of art. is identical to that of Consequently, the Fourth Amendment. this court "has interpret refused to Wisconsin's search and seizure provision differently Supreme than the Court," and has heightened privacy protections not afforded under the state constitution than under the Fourth Amendment. nothing tempts depart There is in this case that us to approach. from this seasoned We thus follow the inter- pretation by Houghton, set forth Court in passengers greater which entitles motor vehicle to no privacy expectations Houghton, than drivers.

at 303-04.

¶ 83. We therefore hold that the warrantless bag search of Pallone's duffel was valid under the exception that allows warrantless searches when authorities have cause to believe that a vehi- object'of cle contains the the search.

CONCLUSION ¶ 84. We conclude that the search of the duffel proper under both the search incident to arrest exception probable-cause-to-search-a-motor- and the exception require- vehicle to the constitutional warrant requirements of the ments. The search fulfilled exception it search incident to arrest because was inci- heightened posed arrest, dent to a valid the situation danger, threat of and there was a need to discover and preserve evidence. The warrantless search also was permissible because the officer had cause to object the vehicle contained the believe capable search, duffel a container and the was object containing the of the search.

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

¶ ABRAHAMSON, 85. SHIRLEY S. CHIEF (dissenting). In all JUSTICE a refrain that has become opinion dutifully repeats majority familiar, the too per principle search is se unreason- "warrantless specifically unless one of the 'few established able justifies exceptions' search,"1 and well-delineated agree proceeds yet exception. I then to find another Justice Antonin Scalia that with U.S. Court requirement "has become so riddled with the warrant basically unrecogniz- [has become] exceptions that it majority opinion recognizes Because the able."2 requirement, exception I another warrant dissent. began

¶ case, as a civil a traffic violation. 86. This encounter with the involved The initial municipal prohibiting of a ordinance driver's violation 1 Phillips, Wis. 2d Majority op. (quoting State v. 218 at ¶ (1998)). 180, 196, 577 N.W.2d 794 clearly major- principle Despite espousing this differently ity confusingly suggests at 59. (1991) (Scalia, J., Acevedo, U.S. v. California concurring). drinking possessing open or an an container of alco- beverage beverage in a holic motor vehicle.3 Here the violating The was beer. driver was arrested for felony ordinance, a civil offense.4 No misdemeanor or alleged suspected or at the time of the driver's arrest.

I majority by ¶ 87. The holds that the search law (the defendant's) passenger's enforcement of the duffel bag justified was because it a search was incidental to majority the driver's arrest. The concludes a "heightened safety threat officer or a need to dis- preserve justif[ied] cover or evidence the warrantless Majority op. search" in this case. at 42. Although passenger's bag might

¶ 88. the duffel weapon dangerous have contained a officer, to the might justified weapon search, which have a no beverages during found. No alcoholic were found Nevertheless, search either. the search of the duffel proceeding beyond looking weapon continued, for a prohibit The Wisconsin statutes also such conduct and provide for a civil forfeiture of not more than $100. Wisconsin 346.95(2m) (1997-98). Stat. 346.935 and §§ challenged arrest, validity No one I and do not (5th Vista, Lago address this issue. See Atwater v. 195 F.3d 242 — — 1999), granted, (Mem), 3566, Cir. cert. S. Ct. 68 USLW 2000) (certiorari (U.S., 2000 WL granted June review whether Fourth Amendment allows custodial arrest for punishable "misdemeanor traffic offense" under Texas law fine). only by Welsh, 342-45, State v. 108 Wis. 2d Cf. (1982) (Shirley Abrahamson, J., N.W.2d 245 S. dissenting, expressing constitutionality doubts about of Wis. Stat. 345.22 § (1977), authorizing warrantless arrest for a civil traffic offense officer). presence committed outside the of an open or of an container of an evidence alcoholic bever- age. plastic bags The officer saw a box when the plastic bags officer inside the he looked box saw con- taining powder. Because the white officer exceeded the grounds search, of the lawful evidence should not under the "search incident to admissible arrest" rule by majority opinion. case Belton5 as set forth majority opinion's lengthy ¶ 89. The discussion attempted justification puzzling and given of its decision is majority's Fry7 conclusion that"Belton6 and 'any allow the search of containers' situated in the com- [of car]." partment Majority op. 55. The majority opinion's justification suggest discussion and Belton/Fry any permitting that the rule the search of troubling. container in a vehicle is Indeed it is. holding ¶ 90. The U. S. Court's in Bel- widely Wayne ton has been criticized. Professor R. bright-line LaFave, guide police whose endorsement rules to resolving officers Fourth Amendment majority quoted approval,8 issues the Belton with con- mistakenly cludes that Belton allows automobile probable cause, searches not based on and thus creates "police which, the risk that make custodial arrests will they otherwise would not make as a cover for a search prohibits."9 A which the Fourth Amendment otherwise (1981). Belton, 5 NewYork v. 453 U.S. 454 (1981). Belton, 454, 460 6 NewYork v. 7 453 U.S. Fry, State v. 153, 176-77, 131 2d 388 N.W.2d 565 Wis.

(1986). (1981). Belton, 454, 8 NewYork v. 453 U.S. 458 9 Search and Seizure: A Treatise on the LaFave, Wayne R. 7.1(c) (3d 1996). Amendment,

Fourth at 457 ed. § newspaper quoted A article a state recent Wisconsin by say- trooper explaining high drug as his number of seizures ing going beyond stop." the traffic Another "[t]he secret is

203 by point Justice William A. similar was made Bablitch Fry, 153, 187, 2d 388 in his dissent to 131 Wis. N.W.2d (1986), joined, by Supreme I 565 and U.S. Court which Justice John Paul Stevens his dissent Robbins v. 420, U.S. California, 453 Supreme Court, in 91. The U.S. both civil liber- espousing law, is

ties and other areas of a new diminishing powers federalism, increasing national with importance.10 keep- influence and In state that, saying drugs, in the for trooper quoted was as "looking any [traffic] and all A state are for violations. bad driver, headlight might drug turn into an arrest of a drunk drug trooper quoted saying A third "I dealer or a user." as Drug Busts having working stopped them for not trunk latch." Stops, Journal, 26, 2000, Start as State June Wisconsin Traffic at 3B. Other academic commentators have also criticized the Bel- critics, ton rule. For a see lengthy the rule and its discussion of (N.J. Pierce, v. 947, 1994); State Common- 642 A.2d 955-58 (Pa. 1995) White, 896, wealth v. (Montemuro, 669 A.2d 907-08 J., concurring).

10 For cases in which the U.S. Court reminded they interpret are free their own state courts constitu granting protections more than tions as individuals does Greenwood, see, e.g, Constitution, 35, v. U.S. 486 U.S. California (1988) (Fourth Amendment); City Mesquite v. Aladdin's (1982) (First Castle, Inc., 283, 455 U.S. Amendment Robins, Shopping v. PruneYard Center vagueness); (First (1980) property rights). Amendment and invalidating beyond For recent cases federal statutes as see, Morrison, e.g., v. United States Congress's powers, 120 S.Ct. (Violence (2000) v. Against Act); United States Women (1995) (Gun-Free Act). Lopez, 514 U.S. 549 See School Zones Federalism, O'Connor, also Our Judicial Day Sandra 35 Case Trends (1984-85); Day O'Connor, W. Res. L. Rev. 5-6 Sandra Relationship in the Between the Federal and State Courts from Perspective Judge, a State Court Mary 22 Wm. & L. Rev.

204 significant ing federalism, a with this new number holding adopt Belton, courts have refused to state respective inconsistent their state such a rule is with guarantees.11 This court should follow constitutional these states and refuse to adhere to Belton as correct interpretation of the Wisconsin Constitution.12 Brennan, 801, (1981); 803-804 William J. State Constitutions 489, Rights, L. and the Protection Individual 90 Harv. Rev. (1977). (Ohio See, Brown, e.g., State v. 588 N.E.2d 114-16 1992) (declining to follow Belton if Belton means that an arrest automatically authorizes detailed search of for a traffic offense Pierce, 947, 956, vehicle); State v. 642 A.2d 959-60 arrestee's (N. 1994) (declining apply arrests for J. Belton warrantless cases); offenses; discussing motor-vehicle other state Common 1995) (Pa. White, (rejecting A.2d Belton wealth v. limiting adhering rule and to earlier decision the warrantless clothing areas of a vehicle incident to an arrest to arrestee; immediately accessible to the see also concurrence cases). 906-08, discussing other strong argument, not

12 Inote that the defendant has by majority police did opinion, that because addressed contact with the driver of the car until he was not initiate car, the Chimel "immediate control" test should outside /Fry bright-line the Belton rule. Chimel v. apply rather than California, Under the search would 395 U.S. 752 Chimel the search occurred after the driver not be reasonable because already squad in the car. Therefore the arres- placed had been Many the car. courts tee did not have access to the interior of applies held that the Chimel "immediate control" test have person with the arrested when the do not initiate contact See, already e.g., United is outside of the vehicle. until he or she (6th 1993) (because Strahan, 155, 159 Cir. States v. 984 F.2d thirty approximately feet from his vehicle when defendant was governs; arrested, and the Chimel test inapplicable Belton defen passenger compartment of the vehicle was within at the time of the arrest and thus dant's "immediate control" a long history recognizing 92. This court has of of the Declaration of of the Wiscon- vitality Rights (article I) I, and of article interpreting sin Constitution 11.13 continue our traditional of approach We should § examining prece- our own and our own constitution dents.14 In Constitution drafting Wisconsin framers relied on the bills of of other state consti- rights tutions, not on the bill of rights, protect federal governmental Wisconsin citizens invasion of against Justice Abram Smith's statement rights. individual Foster, 1032, 1037-39 "suppression proper"); v. P.2d is State 905 1995) (Idaho (holding only applies that Belton when rule police defendant is arrested or the at least make initial contact vehicle; collecting the defendant in the a number cases with of rule); States, apply v. which this Lewis United 632 A.2d 383 (D.C. 1983) (the allowing App. Belton rule search of vehicle upon occupant arrest of is confined to cases where the confront, confrontation, signal person or at least while the is an vehicle). LaFave, occupant Wayne See R. of also Search and 7.1(a) Amendment, Seizure: A Treatise on the Fourth § (3d 1996) cases). (citing 436-37 and n.26 ed. 13 (1997) Stark, See Jack The Constitution at Wisconsin I, 3); (discussing interpretation Joseph this court's of article A. § (1999) Ranney, Trusting Nothing to Providence at 513-515 (Wisconsin among interpret the most innovative of states defendants). ing rights constitutional of criminal 14 See, State, 160, 163, 193 e.g., Jokosh v. 181 Wis. N.W. 976 (1923). State, 407, 417, (1923); Hoyer v. 180 Wis. 193 N.W. 89 Sundquist, See also John Construction the Wisconsin Consti of Principles, Marq. tution — Recurrence to Fundamental L. (1979); Comment, Independent Application Rev. 531 The Questions State Constitutional Provisions to Criminal Proce dure, Marq. (1979); Comment, Rediscovering L. Rev. 596 Ques Wisconsin Constitution: Presentation Constitutional Courts, 483; Joseph Ranney, tions in State 1983 Wis. L. Rev. A. Trusting Nothing to Providence at 499-500 urging supreme court Wisconsin to look to the by Wisconsin Constitution should be heeded this court today: constitution,

The people then made this adopted it as their primary law. The of other people states made for themselves respectively, constitu tions which by are construed their own appropriate functionaries. Let them construe theirs —let us con strue, ours. Attorney General ex rel. by and stand Barstow, [*785](1855). v. 4 Wis. 567 Bashford majority ¶ 93. It is unfortunate that instead the follows the erratic course that the U.S. Court has set in the field of searches and seizures.

f—I hH majority opinion ¶ 94. The also holds that the passenger's bag search of the duffel was constitution- ally permissible probable the because had cause they object believe would find the of their Majority op. holding ¶¶ search. at 75-77. This is not necessary opinion, disagree to the and I with this dictum. police may probable

¶ 95. While the have had open cause to believe that containers of an alcoholic beverage would found in itself, be the vehicle the search passenger's bag of the duffel was unreasonable as a matter of constitutional law and common sense. According majority, proper inquiry to the is whether "there is reasonable cause to believe that the specific things to be searched for and seized are being Majority located" within the container searched. op. quoting Wyoming Houghton, ¶ 70, at v. (1999). Similarly, empha-

295, 302 Professor LaFave sizes that a "for warrantless search of a container lawful, cause to a

inside vehicle be objects . .could must be as to which. vehicle opened."15 concealed in the container present ¶ case do 96. The.circumstances majority opinion and Professor not meet the test already put found the forth. The officer had LaFave twelve-pack vehicle, remnants in con- of beer Majority op. taining open at both and closed bottles. expect open simply ¶ reasonable to to find 11. It is majority opinion bag. a duffel The of beer inside bottles "unlikely" that the defendant concedes at 51 that it is open spillable bottles of beer a duffel "would store majority opinion's bag as the is in motion." The vehicle by is its subse- candor in this admission quent diminished assertion that it was "conceivable" bag put open in the duffel defendant bottles of beer Why put parked. the defendant once the car was open would leaving in a duffel while bottles of beer twelve-pack containing open and closed bottles of beer boggles plain The mind out in view the vehicle? the idea. Try majority opinion will, its reason- as looking

ing further evidence of that the officer was for persuasive. is not The civil offense was the civil offense open completed the officers found the containers when showing beverages. multi- of alcoholic There is no ple multiple containers constitute offenses or increase

15 A LaFave, Search and Seizure: Treatise on the Wayne R. 1996) 7.2(d) (3d Amendment, Fourth (discussing ed. at 506 § Ross, and United States v. (1982), United States v. 798 456 U.S. (1991)). Acevedo, LaFave, See also Supp. 1999 7.2 500 U.S. 565 § Wyo (noting Supreme Court's recent decision in at 63 that U.S. 295, (1999), ming Houghton, v. change 302 does not Houghton only analysis, passen allows searches of those this as search"). object gers' belongings "capable containing of penalty. I conclude that the officer lacked cause to search the duffel and that the search can- justified not be as a search for further evidence of the original offense.

I I I Today's opinion, together ¶ 98. with the deci- Fry16 King,17 sions in State v. and State v. means that any municipal violation of a civil state or traffic law, no minor, matter how can result in a driver's arrest and every piece luggage any the search of and container belongs car, in a no matter to whom it and no matter any whether there is reason to believe such a container weapon holds a or evidence. any I doubt member of this court would

find it him reasonable for a officer to arrest or her for a civil traffic offense then search the entire passenger compartment lug- all the briefcases and gage relating scope therein. The law to the warrantless automobile searches has reached a shock- ingly low standard and is inconsistent with the principle espoused recently by this court in State v. Griffith, 70, 2000 WI 72 at 48, 236 Wis. 2d traveling 72, N.W.2d that "an individual in an automo- legitimate expectations bile does not lose all privacy."

¶ 100. For the I stated, reasons dissent. 16 Fry, 131 Wis. 2d 388 N.W.2d 565 King, (Ct. State v. App. Wis. 2d 418 N.W.2d 11 1987).

¶ 101. I am authorized to state that Justices A. BRAD- WILLIAM BABLITCH ANN WALSH join LEY this dissent.

Case Details

Case Name: State v. Pallone

Court Name: Wisconsin Supreme Court

Date Published: Jun 30, 2000

Citation: 613 N.W.2d 568

Docket Number: 98-0896-CR

Court Abbreviation: Wis.