State v. Tompkins

Plaintiff-Respondent, Wisconsin, STATE Defendant-Appellant- Henry TOMPKINS, L. Petitioner. Supreme Court 25, May Argued October 1987. Decided No. 86-0095-CR. 1988. 823.)

(Also reported in 423 N.W.2d defendant-appellant-petitioner For the were there by Walrath, Shellow, briefs James A. Shellow & James S.C., argument by and oral Milwaukee Glynn, Walrath. A. argued the cause was plaintiff-respondent

For the Balistreri, general, J. attorney assistant Thomas Hanaway, Donald J. on the brief was with whom attorney general.

STEINMETZ, This is an automobile search J. an unpublished review of decision upon taken case Tompkins’ affirmed convic- appeals which the court of with the intent for of cocaine possession tion deliver, Fond du Lac the circuit court for entered F. judge. Eugene McEssey, county, Honorable law, facts, as that under the a matter We find cause to defendant’s there was further hold that because We motor vehicle. to the automobile had believe agents contraband, no need for a show- there was contained a search warrant. circumstances or ing Tompkins L. Henry The in this case is defendant possession with of cocaine (Tompkins). charged He was 161.41(lm)(b), to to contrary intent deliver with suppress challeng- filed a motion to Tompkins Stats. the interior of a of cocaine from truck ing seizure 14, March 1984. He he had driven on also which of items seized from his wallet sought suppression following from him his arrest. The agents took which court denied all of defendant’s motions trial suppress. pleaded sentenced guilty

The defendant and was in the State Prison. years to a term of five Wisconsin However, supporting Tompkins’ the evidence because subject suppress, was the of a motion he conviction ruling subsequent and the appealed suppression 971.31(10), under sec. Stats. judgment of conviction Mordeszewski, See State v. 649, 651, Wis. 2d (1975). N.W.2d 642 testimony suppression at the hearing showed (Mendoza) agent

that state John Mendoza originally planned to purchase pound one-half of cocaine from David (Lyons) at Inn Lyons Holiday on the outskirts of Fond du Lac on March 1984. At 3:20 p.m. on telephoned that date Lyons Mendoza and reported he having that was trouble making connec- tions with his source. It this information and later information led Mendoza to believe that being cocaine was day delivered same to Lyons source, from an coming outside rather than from a supply already Lyons’ possession.

During period, this same agents time other state witnessed Lyons co-defendant Cleve Meyer drive to several du Inn, Fond Lac locations near the Holiday including Center, Forest Shopping Plaza Forest Mall Shopping Egger’s Center Tavern. After stopping at an places, various effort apparently source, locate his Lyons finally rendezvoused with Tompkins shopping at mall parking Lyons lot. left the car in he passenger which was a and entered a pick-up Tompkins. truck driven by He remained in minutes, Tompkins’ truck for several returned to the car in he had passenger, which been a and went to the Inn, Holiday agreed agent where he had to meet Mendoza to deliver the cocaine.

Upon one-quarter cocaine, of delivery pound of Mendoza Lyons. Lyons explained arrested that his source him only had told that he would deliver one- quarter of no pound dispute cocaine at time. There is that, at time of the Lyons, the the transfer to one-quarter of was pound undelivered cocaine either person Tompkins’ on or in truck and that Tompkins’

119 the after could return for balance told he was Lyons to his customer. quarter pound first delivery of the the agents following the Lyons, Upon the arrest to arrest truck were directed pick-up Tompkins’ to delivered the cocaine Tompkins After Tompkins. lot, agents these saw parking mall in the Lyons station, he where went inside of go gas to a Tompkins minutes. then building three four He drove the for or Tompkins was in the tavern After to Tavern. Egger’s minutes, agents The he was arrested. for about him in the bar and then asked Tompkins patted down there was read He was handcuffed step outside. Arizona, to Miranda v. U.S. pursuant rights his (1966). fit the produced keys which body This Tompkins driving. By had this pick-up truck been agents five at the scene in time there were state driverless, surrounding the separate automobiles pick-up agents, using truck. The parked and locked warrantless search of the made an immediate key, containing truck and found a small box one- pick-up plastic quarter pound bags. of cocaine suppress Tompkins pro- moved to evidence denied the judge duced this search. trial he the truck motion because concluded the search of and, event, was incident arrest any been inevitably cocaine would have discovered judge irrespective lawful means. The determined that search, legal there theory supporting However, probable cause for a search of the truck. that a judge specifically found search warrant could have been obtained. conviction, appeal from the judgment

On appeals agreed court of there was remaining one-quarter pound believe appeals in the cocaine was truck. The court of held that the search was conducted incident to the arrest of despite Tompkins, pat-down the fact the arrest and place Egger’s took Tavern. The conviction was affirmed. argues

The defendant in this court that the warrantless search was not valid search incident to argues probable his He arrest. further there nowas remaining one-quarter pound cause to believe the parked Finally, cocaine was and locked truck. probable that, he asserts even there were cause for a exigent search, there were no circumstances that permit exception requirement would an to the of a points judge search warrant. out He trial specific finding made the that a warrant could have been obtained. inquiry

Our first is whether not, incident conducted to a lawful arrest. If it was we agents probable must examine whether the had cause Tompkins’ to believe the cocaine was located in truck. they probable search, If did not have cause to inquiry per ends, because the warrantless search was se unreasonable under the Wisconsin Constitution and United States Constitution search seizure provisions. agents If this court finds did have truck, cause search the the issue becomes required whether circumstances are to be present when the defendant is arrested of his outside some from it. vehicle and distance regarding The issues this case the existence of propriety search con- present questions Accordingly, ducted of law. this independently court reviews these issues without appeals. or court of deference to trial court 105, 115, Wrensch, 399 135 Wis. 2d N.W.2d Lambert v. (1987). I, 11 of the Wisconsin Constitution Article sec. and seizure.1 unreasonable search Without prohibits a nor warrantless neither warrant probable cause Where a search is made appropriate. be search would arrest, there not be lawful need incident 968.11, Stats.; See sec. State v. for search. (1986). 153, 388 2d N.W.2d Fry, Wis. Stats., 968.11, of a scope delineates Section If the a lawful arrest.2 search made incident or, in the motor vehicle had been arrested defendant stopped driving he while and then as had been Fry, just outside of his immediately arrested thereafter vehicle, question the search there no would I, provides 11 of the Wisconsin Constitution as

1Art. follows: right 11. The and seizures. SECTION "Searches houses, persons, papers, people in their and effects to be secure violated; against and seizures shall not be unreasonable searches cause, upon probable supported by

and shall but no warrant issue affirmation, particularly describing place oath and to be or things persons and the or to be seized.” searched 968.11, Stats., provides follows: 2Sec. "Scope incident lawful of search arrest. When lawful made, may reasonably arrest is a law enforcement officer person person’s arrested and an area within such immediate presence purpose for the of: "(1) attack; Protecting the officer from "(2) Preventing person escaping; from "(3) crime; Discovering seizing the fruits or "(4) instruments, Discovering seizing any or articles things of, may which have been used in the commission or which of, may constitute evidence offense.”

have been within the scope of a search incident to a However, lawful arrest. in this case Tompkins arrested the tavern some distance from his truck. Tompkins’ truck was not "an area within defend- [the presence” immediate under sec. 968.11. ant’s] We disagree with the court appeals the search was conducted "incident Tompkins’ to” arrest within the meaning of sec. 968.11 and Fry, and we decline to sustain the grounds. search on these

Tompkins’ second challenge regards the existence cause to search the truck. While defendant in his brief denies that there was reason to believe he had remaining one-quarter pound with him at the time of initial Lyons’ purchase, in argument oral he conceded that there was evidence to a reasonable that probability he did then have the remaining asserts, however, cocaine with him. He that because following the delivery to Lyons, Tompkins stopped at a gas station for three or four minutes and then inwas Egger’s Tavern for about 15 prior minutes to his arrest, he could have secreted the cocaine at either of and, hence, those locations there was no probable cause to believe the cocaine remained in the truck. Defense counsel did concede that probable there was cause to believe that the cocaine was in one of those however, three argued, locations. He agents "that conducting the search were required probable to have cause to believe that a controlled substance was at the particular location searched.” (Emphasis supplied.)

We have no quarrel with this proposition; how- ever, we do not believe that the concept probable cause is so constrained as to particular mean "a ... location and not at any other location.” While defense counsel would argument reduce the state’s stating to an "under absurdity, cause had cause to search the they agents’ theory station, tavern, truck, gas area within that, radius,” we conclude under the facts a five-mile truck, here, cause to search the probablé there was tavern. is no station and the There intimation gas have the cocaine could been left this record but the three named locations. any situation Wayne

Professor LaFave discusses this 3.2(e) Seizure, treatise, LaFave, Search in his (2d 1987): ed. at 598-99 problem arises ... when have

"[T]he particular person that a probable cause identified consequently a crime and that he has committed likely to have evidence of crime his somewhere, they any lack possession but informa- car) (e.g., his tion which makes one location a more (e.g. apartment). likely than his location another rulings permit under these circumstances] [If something upon searches to be made less than probability any particular place, as to one 50% appear objectionable.” they do not Brown, In Texas U.S. "probable

United States Court stated that flexible, merely is a common-sense standard. It the facts to the officer would requires that available of in the [person] 'warrant reasonable caution belief,”’ likely the contraband was to be that The Court stated in this case: searched. also place certainties, process not hard '"The does deal with probabilities. Long law of but with before the such, probabilities practical as was articulated people certain conclu- formulated common-sense behavior; jurors sions about human factfinders

124 so are law permitted to do the same —and are thus Finally, the evidence enforcement officers. weighed not terms must be seen and collected scholars, but as understood library analysis by Id. law enforcement.’” versed in the field of those Wisumierski, 722, 739, 317 2dWis. In State v. (1982), we stated: N.W.2d cause, supreme regard probable "In with has stated that court Court] deal[s] '[the technical; they are the These are not probabilities. everyday practical considerations factual men, prudent not which reasonable life on technicians, legal act.’” [must] 319, 329, 321 Welsh, 2d 108 Wis. In State v. probable cause was that we stated N.W.2d susceptible "stringently defini- mechanical not possibility, required but is more than a What is tions.” likely probability, more the conclusion is not a always the reason- has stressed not. This court than in the it reasonable to believe factor. Is ableness particular evidence or contraband circumstances place sought may searched? at a be be located is evidence that would hold that where there We person that the evidence to conclude lead a reasonable particular sought likely location—al- in a be though may that could lead be other evidence there may person that the evidence to conclude reasonable location —there is be another instead The search of first location. for a search of the although may appropriate there location is the first may the evidence be cause to believe be also or third location. in the second In this case the facts indicated that the cocaine place likely to be in the searched as it was to was as be places in the two other Accordingly, visited the defendant. argument reject we the defendant’s probable not cause to search the truck. there was The successfully, by the recitation of the state has undis- prove probable puted duty facts, fulfilled its cause. probable hold as a matter of law there was We cause for the search. contends that once state cause is herein find it

established —as we to be—the search of proceed may a motor vehicle without a warrant. It so asserts because under federal law of search and very truck, seizure the nature of an automobile or or upon highway, other vehicle licensed to travel generis. makes an automobile search sui The state upon potential mobility relies of a vehicle and the constantly fact that licensed are vehicles under safety for surveillance purposes. criminal behavior and for upon addition, In the state relies the nature of the visual access to the interior of most motor by any passerby. vehicles These considerations result expectation greatly privacy justifying in a reduced predicated alone, on without a showing exigent that actual circumstances existed. argues that, The state to the extent necessary all, circumstances are at the inherent mobility requirement. of an automobile satisfies this urges interpret The state this court to the Wisconsin provision search and seizure consistent with recent interpreting federal law the fourth amendment of the United States Constitution. States,

In Carroll v. United U.S. recognized the United States Court first subsequently what has been termed the "automobile against unreasonable prohibition to the exception” under the fourth amendment. and seizure search stated: Court authority the true rule is that

"On reason and warrant are if the search and seizure without a cause, is, belief, upon upon probable a made arising reasonably out of circumstances known officer, seizing that an automobile or other subject contains that which law is vehicle destruction, and seizure are seizure and the search Amendment is to be construed in valid. The Fourth light of what was deemed an unreasonable adopted, it and in a and seizure when was public interests as manner which will conserve rights as the interests of individual well citizens. adoption contemporaneously

"Thus with in the first the Fourth Amendment we find following Congress, and in the Second and Fourth Congresses, necessity made as to the a difference goods subject between for a search warrant forfeiture, dwelling in a house or when concealed goods transpor- place, and like course of similar in a vessel where tation and concealed movable a search readily put could be out of reach of they warrant. guaranty freedom from unreasonable

"[T]he Amendment and seizures the Fourth searches construed, beginning practically since the has been Government, recognizing necessary store, dwelling of a a search difference between respect of which a structure house or other obtained, readily may be proper warrant official boat, wagon ship, or of a motor and a search automobile, goods, where it is not for contraband practicable a warrant because the vehicle to secure quickly locality out of the or can be moved sought.” in which the warrant must be jurisdiction 149, 161, 153. Id. at case,

In the instant it is conceded that under could circumstances officers have obtained fact search warrant. Does make a difference in the need to obtain a search warrant today for an automobile when there exists cause to be- lieve that the vehicle contains contraband? We believe not. issue is underlying police whether acted vehicle,

reasonably searching the not whether warrant could have been A reasonably obtained. cases, v. Maroney, perusal of Chambers leading Dombrowski, Cady v. (1970); U.S. 42 413 U.S. 433 Lewis, Cardwell v. (1973); Texas v. (1974); 417 U.S. 583 Brown, and, (1983); 460 U.S. 730 finally, California Carney, U.S. indicate a dimin- steadily ishing requirement over the years proof of of exigent circumstances based on the likelihood that the vehicle will be moved. These cases also indicate an increasing reliance the Court by upon proposition right against unreasonable searches and seizures derives not so much from the protect need to property rights, but expectation rather from the of privacy. home, office, in one’s Privacy or place other of business is contrasted with the visual opportunity that a vehicle offers to the police and to the public, who in general peer can into the windows of every passing vehicle. Under the Carney, the diminished holding expectation of in an privacy automobile justifies permitting a warrantless search of a vehicle when there is cause to believe that the vehicle substance, contains controlled even absent a show- ing circumstances. being

"When a vehicle is high- used on the ways, capable if it readily or of such use and is stationary place found in a regularly not used for purpose temporary residential or otherwise —the — justifications exception two for the vehicle come First, play. into the vehicle is obviously readily ignition mobile the turn key, of an if not Second, actually moving. expec- there ais reduced privacy stemming tation of from its use as a subject range licensed motor vehicle ato regulation inapplicable Id. at dwelling.” to a fixed (Footnote omitted.) 392-93. present

Thus, the status of the federal automobile expressed by search and seizure law is well Professor LaFave as follows: Supreme years

"As the Court in recent has emphasize come to merely more and more not expectation mobility factor but also the lesser notion, privacy this has been reflected manner in which lower courts now deal with (and, significant any vehicle searches. Most absent Court, Carney backing away from future) uphold likely most in the is that courts virtually inquiry with no into warrantless searches case, particular reasoning the facts of the that exigent any whether kind of circumstances claim plausibly put totally could be forward is irrele- Seizure, LaFave, 7.2(b) Search and vant." 3 at (2d 1987). 39 ed. Appeals for the Seventh

The Court of Circuit exception recently stated: "The automobile allows a long warrantless search and seizure of a car so as justified by probable cause.” search is v. United States

129 (7th Rivera, 1987), citing Cir. 825 F.2d Chambers v. Carney, 386; 471 U.S. California States, Carroll v. United 42; Moraney, 399 U.S. applied the federal exception 132. The U.S. mobile nature of recognizes inherently both courts expectation priva the decreased an automobile See also Rakas v. car. an individual has in a that cy (1978) (Powell, Illinois, 128, 153-54 J. concur 439 U.S. in is better established Fourth ring) ("Nothing than the distinction be jurisprudence Amendment an automobile expectation privacy tween one’s locations.”); when in other expectation and one’s (9th 836, 844 Bagley, United States v. 765 F.2d Cir. 1985) (holding probable justifies that cause alone lawfully search or seizure of a vehicle warrantless parked public place). in a appears resolved that if the

Federal law probable have cause to believe a vehicle contains contraband, search it whether there are they may exigent Accordingly, circumstances or not. were we to law, state, present follow the state of federal truck, having proved probable cause to search proceed could with a warrantless search. We hold that where there is cause to believe that a vehicle crime, of a Wisconsin contains evidence committed constitutional law allows a warrantless search of a showing exigent defendant’s automobile without circumstances. I,

Tompkins argues art. sec. 11 of the requires Constitution Wisconsin circum- before a present stances be warrantless search of an though automobile can be made even there is cause to believe the vehicle contains contraband. The defendant relies on statements this court made Wisumierski, dicta Wis. 2d at 737-38: though required we not

"Even are to reach the issue of reasonableness of the search absent standing, finding briefly of we will comment on per this issue. Warrantless searches are se unrea- exceptions ... There are but few sonable. this law, basic tenet of constitutional and to come shown, by party one of them it must be within seeking exception, to fall within the exigencies of the situation rendered a warrantless imperative.” Wisumierski, law, applying federal constitutional slight showing of "'very exigency”’ stated that a search of an automobile. Id. for a warrantless required However, Wisumierski was decided years two before Carney Supreme States Court decided in the United 1984. 153, 172, Fry,

In State v. 131 Wis. 2d this court I, 11 of the compared art. sec. Wisconsin Constitution of the United States Consti- to the fourth amendment "But for few inconsequential tution and concluded: capitalization in and the use punctuation, differences word, the texts of singular plural or form a I, the fourth amendment are identi- art. cal.” Fry, we have consistently

As this court stated the law of search and seizure under conformed developed to that Wisconsin Constitution Court under the federal con- Supreme United States stitution.3 Id. at 172. The reason this court primary Fry, 131 Wis. 2d at 172-73:

3As this court stated examples exist where this court has "Numerous recent precedent States Court followed the United Rodgers, 119 cases. In State v. Wis. 2d search and seizure principles determining the we followed the for N.W.2d 453 sufficiency search that were articulated of a consent to a interpret I, of the state art. has declined interpreta- differently the federal than constitution prevent is to confusion the fourth amendment tion of differing generated by Id. standards. which would be Supreme Although Court sets the United States applicable to the minimal constitutional standards the through amendment, this fourteenth court states interpret in a which our constitution manner is free to Fry: protections. greater As we stated in affords Supreme always "It conceivable that is in interpret the fourth amendment Court could protection Wisconsin way that undermines from unreasonable searches citizens have I, 11, under art. sec. Wisconsin Constitu- seizures require great- This would necessitate that we tion. under the state consti- protection er to be afforded recognized the fourth amend- tution than is under ment.” Id. at 174. respective provisions Moreover, when language differ in such state and federal constitution (1973). Bustamonte, Supreme 412 U.S. 218 Court in v. Schneckloth 443, 453-57, Boggess, 340 N.W.2d 516 In v. 115 Wis. 2d State (1983), adopted totality of the circumstances test for we determining probable enunciated the United States (1983). Gates, Supreme 462 U.S. 213 In Court Illinois v. State 519-20, (1982), Callaway, 317 N.W.2d 428 106 Wis. 2d Wisumierski, 722, 727-28, 106 Wis. 2d 317 N.W.2d 484 State v. (1982), standing repudiated for we the doctrine of automatic offenses, possessary persons in accord with the accused of Salvucci, Supreme States v. 448 U.S. 83 Court’s decision United (1980). 700, 710-11, Fillyaw, Finally, in 104 Wis. 2d State v. the traditional rules for N.W.2d 795 we abandoned standing challenge determining an unconstitu- a defendant’s search, premises’ abandoning 'legitimately test tional on test, 'expectation privacy’ conformity with the in favor of an Illinois, U.S. 128 Court’s decision in Rakas v. (1978).” provision that a federal constitutional offers more protections required limited or restrictive than under constitution, our state we are not influenced to the degree accept position same the federal when interpreting rights claimed under the state constitu- tion. language

However, where the state consti provision virtually tutional at issue identical with counterpart, here, that of its federal traditionally we have interpreted our constitution consistent protections with the of the federal constitution as interpreted by Supreme the United States Court. This particularly interpretation is true of this court’s of the provision. Hoyer Wisconsin search and seizure In v. (1923), State, 407, 193 180 Wis. N.W. this court first recognized exclusionary rule in Wisconsin. Hoyer,

In this court stated: I, Const., supra, pledge

"Sec. art. Wis. government of the faith of the state people state, (with express possible of the all alike no or reservation it good mental is for the and be secure only), persons, innocent shall in their houses, papers, against and effects unreasonable security vanished search and seizure. This has and pledge is guarantees violated the state that state, acting it when officers of the color under of state-given authority, unlawfully. search and seize provision of pledge The this and that of 8 are sec. each when made in violated use is of such evidence other of its officers.” Id. at own one of its courts 417. protection rights preservation

The of and the of depend judicial integrity reality on the deterrent exclusionary effect of rule. con- Unlawful duct is deterred when evidence recovered in unreason- The Wiscon- courts. is not admissible

able searches and statements of that Hoyer discussed sin cases protection against police judicial all concerned court is, developed rule exclusionary That oppression. searches and deter unreasonable remedy to a judicial was and is a limit on fourth amendment seizures. government. powers long before However, although Hoyer was decided provisions Court held the Supreme States the United through the fourteenth amendment the fourth Ohio, in Mapp to the states applicable amendment Supreme Wisconsin Court 367 U.S. States Court’s decisions the United accepted Wisconsin Constitution interpret them to applied I, I, In the court examined art. sec. Hoyer, 11. art. "The two amendment stated: 11 and the fourth quite here invoked are close- provisions constitutional interwoven_” stated: Id. at 416. The court ly stand, we elect to as this court

"For ourselves stood, with the and other has heretofore federal provisions Bill consider these courts which in constitutions to be of Rights as embodied hold, mere tinsel. We there- substance rather than fore, challenged in this case the evidence that by by the officers unlawful search and taken 11, I, Const., art. contrary to sec. Wis. seizure supra, and was improperly received evidence rights against him on the trial violation his 8, I, Wis. Const.” Id. at 415. art. under added.) (Emphasis

Thus, provision search and seizure the Wisconsin protections with the interpreted was as consistent interpreted States Constitution the United cases, States, 255 U.S. 313 federal Amos v. United States, (1921); (1921); 255 U.S. 298 Gouled v. United McDowell, Burdeau v. U.S. 465 and other appeals court of in Hoyer. cases cited 443, In Brady, State v. Wis. 2d (1986) N.W.2d 151 the court characterized Hoyer as the case "in which adopted we an exclusionary rule based upon Wisconsin Constitution.” What we did in Brady not state was Hoyer prior decided v. Ohio and fourth Mapp amendment had not been to the applied states. At that time Hoyer the only protection against I, unreasonable searches was art. sec. 8 of the Wisconsin Constitution. Significantly, interpretation of the Wisconsin Constitution in Hoyer upon cases, was based exclusively federal particularly Supreme United States Court decisions interpreting the fourth amendment.

As we indicated in Fry, this court will continue to construe our state constitutional search and seizure provision consistent with federal law interpreting fourth amendment until and unless the protec- federal tions offered rights protected undermine under I, art. sec. 11. We have not reached yet point where the United Supreme States Court’s interpreta- tion of the fourth amendment undermines the protec- tion afforded individuals prosecuted the Wisconsin criminal justice system from unreasonable searches requirement seizures. The of probable cause for the officer to search an automobile for controlled substances strong deterrent invasion.

The dissent authored Chief Justice Heffernan ignores the historical development of search and starting seizure law with and its Hoyer development consistent with United States Court deci- sions since v. Ohio held the fourth Mapp amendment applicable through states fourteenth Exigent amendment. circumstances as a theory of law federal case law stated in from adopted Wisconsin was in Carroll. proposition the dissent for the cited

The cases been exception has circumstances exigent that point not in for that law are into Wisconsin accepted Miller, 136, 208 N.W. In Wilder v. 190 Wis. statement. of a search (1926), validity examined the this court containing automobile of an abandoned and seizure circumstances was exigent The issue of contraband. Wilder, in notwith- even discussed examined or not fact that Carroll had been decided just standing the conduct- that the search was given before and the year exigent circumstances. in the clear absence ed Nonetheless, and seizure of the search validity While, in Wilder on probable cause alone. upheld was the Wilder court cited out, points as the dissent decision, true, it as its is also for Carroll authority as language of Carroll concedes, was the dissent In Wilder this court of context” Wilder. "taken out in the distinguished Hoyer on its facts Hoyer did not detect stating analysis, prior to the emanating from the car of alcohol the odor was Wilder search, the odor of alcohol whereas Thus, case in Wilder cannot be seen as a obvious. doctrine has been exigent circumstances which "the exception to the warrant proper as a entrenched the Wisconsin Constitution. See under requirement” op. at 146-147. slip dissent Leadbetter, 246 N.W. 443 210 Wis. State In constitu- accepted into Wisconsin Carroll exigent mention of again made no tional law but for a warrantless being required circumstances relies on Leadbetter dissent Significantly, search. in Wisconsin circumstances history for the that case: "Since language from despite following all that is required a search an justify of automobile is probable reasonable or cause for believing its law, against contents offend we conclude that search was lawful.” Id. at 333. Friday,

State v. 140 Wis. 2d 412 N.W.2d 540 (Ct. 1987) Donovan, Carroll State v. App. cited 401, 408, 2d Wis. N.W.2d stating that both probable exigent cause and circumstances are necessary search; however, for warrantless the case was decided on the basis of the probable lack of and inappropriateness of the application of the inevi- table rule. discovery

It logical is not in the absence of a constitutional violation to prosecuted have one in a federal court have a warrantless search considered on the basis of probable cause and not requiring exigent circum- stances; yet a state court prosecution both probable cause and exigent circumstances are necessary for a warrantless search. This distinction is not necessary appropriate nor when the governed treatment almost identically phrased provisions. constitutional rule exclusionary continues to protect against unreasonable searches of an automobile; evi- dence obtained will not be admissible in prosecutions unless the officer probable had cause to believe the vehicle contained contraband or evidence of a commit- ted crime. That is tested whether the circum- stances person would warrant a of reasonable caution Brown, to hold the same belief. Texas v. 460 U.S. at 742. The test on review of a motion to suppress will be whether officer had cause to search the pick-up truck.

We hold that where the have cause to believe that evidence of a crime is in an may

automobile, be made automobile a search showing warrant and without a a search without regard, I, In 11 of art. circumstances. greater rights provides no Constitution the Wisconsin States Constitution as art. IV of the United than interpreted by Court. the United States ap- By decision the court the Court.—The peals is affirmed. (concurring). agree CECI, I J. with the

LOUIS J. separately court, but write for the decision following reasons. present deadly

The case involves one of the most drugs affecting today— devastating society our and majority The in this that holds case the cocaine. justified the search of car was because the warrantless police was made on of the vehicle search Accordingly, the cocaine evidence cause. was found to have been admissible. With this seized agree. firmly I decision reported recently striking

In case that bears a present case, resemblance to United States Appeals of for the Seventh Circuit found a Court and seizure of an automobile to warrantless search be agents had a ret- lawful where observed defendant appeared to be from the rieve what narcotics vehicle’s keys that from trunk and discovered confiscated those of the vehicle. defendant matched United States (7th 1987). Rivera, court in 825 F.2d Cir. exception "The automobile allows a Rivera stated: long of a car warrantless search seizure so justified by is cause.” 825 F.2d at 158. of This decision embodies the recent decisions establishing Court United States a decreased privacy Interestingly, expectation automobiles. panel deciding on the Rivera judges one of Fairchild, Sr., distin- Judge Senior Circuit Thomas E. a recognized scholar and former guished and member of this court. this

The dissent would have court adhere to a "exigent circumstances” requirement searching automobiles, requirement the same for search of a if without a warrant. The dwelling done dissent tells is a "exigent "bright us that circumstances” line rule,” meaning recognize it is easy easy to But is not the case. That which apply. such constitutes "in "exigent circumstances” frequently eye beholder,” requiring often an on-the-scene judgment officer, often under stressful call a circum- later, hindsight, might Months it stances. not so to a far removed in time and appear judge place from circumstances,” point "Exigent of decision. far line,” being "bright from is often a difficult conclu- which reasonable minds differ. Such may sion about in the loss to the requirement can result state of though probable essential evidence even cause existed to make such search.

The need to assure that law enforcement officials in obtaining are not thwarted admissi- unnecessarily rising production is the of highlighted by ble evidence in drugs drug trafficking and increase which has been scourge sap described as "a that threatens to the of ....” energy Gray, Rising and resources nations World, Production Wis. State Drug Scourge Called of J., 10, 1988, at 1-D. The albatross of Apr. worldwide drug production trafficking illicit has reached proportions: drug the costs of this situation epidemic tremendous. candidate has de- presidential are One problem the as follows: "Our severity scribed trouble, in one threat children are the number

139 at Jabs Jackson drugs.” today is security national 25, Bush, J., Mar. Unity, Political Wis. State Pushes date, losing against 1988, we are the war at 1-3. To News, See, Drug Gets Sour Wis. Reagan e.g., drugs. 1988, I J., at 1-1. submit that courts Apr. State the of must, public safety, in demands response war assure the decisions which will fashion state, fought the drugs by is not one which against consti- handicaps imposed by overbroad disabling with interpretations. tutional Ohio, (1961), 643 the United Mapp v.

In U.S. rule Supreme exclusionary Court held that States amend- through to the states fourteenth applied of protection as an essential means to assure ment by As explained majority, the fourth amendment. State, Hoyer in this court had previously, while 407, 415, an recognized 193 N.W. 89 Wis. constitution, exclusionary rule under our state by a foundation laid federal supported by decision followed federal law steadfastly law. We have defining cases both insofar as search seizure scope protected rights deterring impinge- and in rights of the enforcement of ment those means rule. As this court exclusionary an observed Fry, 153, 175-76, State v. 2d 131 Wis. N.W.2d (1986): "[Conforming Wisconsin’s search and seizure developed by law to that Court under fourth amendment is not consistent with the text only provision, search and its consti- Wisconsin’s seizure judicial tutional and its but it is also history history, public depart with We not accord sound must policy.” has, federal law by requiring only from case which of a justify a warrantless vehicle, to the stability reintroduced balance between

140 rights privacy agents and the need of law enforcement procure evidence. explained exclusionary We the nature of the rule State, 616, 636, Conrad v. 63 Wis. 2d 218 N.W.2d exclusionary 252 as follows: "The rule is a judge-made one in furtherance of conduct that courts public have considered to be in the interest and to suppress public conduct that is not.” The interest application by exclusionary furthered rule only sought where the conduct to be deterred impinges upon privacy interest, a in violation of the e.g., Brady, See, fourth amendment. State v. 130 Wis. (1986) (citing 443, 453, 2d 151 N.W.2d United (1984)). Leon, States v. 468 U.S. To extend the exclusionary rule to bar the admission of evidence obtained from a warrantless search of a vehicle where there exists cause for the search would not public recognized by because, further "the interest” law, federal case expectation an individual has "decreased privacy” Rivera, in a car. 825 F.2d at (1985)). (citing Carney, 471 U.S. 386 California acceptance We not let should our of a more enlightened interpretation of the fourth amendment by the United States Court remain shackled by prior interpretations restrictive of search and seizure law that Court. We would be remiss if we presented opportunity failed to seize the federal equilibrium case law to restore between law enforce- judicial ment and the enforcement of constitutional rights. people majority A of our who are neither dependent making profit nor on from this nefarious significant hopefully trade will welcome this small but addition to the arsenal of law enforcement the war drugs majority provides. on decision that JUSTICE ROLAND to state authorized

I am concurring opinion. joins in this DAY B. (dissenting). HEFFERNAN, JUSTICE CHIEF language majority that, of because concludes States the United similar constitution our following the United Constitution, reduced to we are every permutation through it Court States twisting ratiocination tortuous in its takes I application Because amendment. the fourth methodology, disagree I this this result and with both . dissent. drugs thought Tompkins to have case, was

In this case, this the circumstances car. Under in his police However, I that belief. cause for had disagree alone, cause, to allow a suffices standing long a car. Under search of warrantless arresting doctrine, if the constitutional Wisconsin exigent circumstances, agents faced with were state constitutionally be search would warrantless their question acceptable. However, no there is agents circum- faced with were not here proceeded warrant- stances, to their nevertheless but accept- circumstances, under Under these less search. law, the search unreason- I would hold Wisconsin ed for a new trial. and remand would reverse able and Tompkins Henry L. in this case is The defendant theory (Tompkins). case, Under the state’s drug supplier Lyons, Tompkins of cocaine was agents made dealer, undercover with whom state pound arrangements purchase of cocaine. one-half Lyons day deal, informed of the intended On Mendez, difficulty having agent, that he a state undercover making source, later with his contact Tompkins. day of the intended On the identified as Lyons transfer, was under the constant surveillance of agents. stopping places, other state After at various Lyons apparently source, in an effort to locate his finally Tompkins shopping rendezvoused with aat parking Lyons mall passenger lot. left car in which he was a pick-up

and entered the truck driven Tompkins. Tompkins’ He remained in truck for sever- minutes, al passenger, car in returned to the which he had been a Holiday went Inn, to the where he had agreed to meet Mendez to deliver the cocaine.

Upon delivery one-quarter pound of cocaine, of Lyons. Lyons explained Mendez arrested had that his only him source had told quarter pound that he would deliver a one- Lyons of cocaine aat time and that dispute should return for the balance. There no Lyons, that, at time the of the transfer to the one-quarter pound undelivered of cocaine was either person Tompkins’ Tompkins’ on Lyons or in truck and that delivery that, was told the after of the first quarter pound customer, to his he could return for the balance.

Upon agents Lyons, arrest the of the who had following Tompkins’ pick-up been the truck were Tompkins. delivery directed to arrest After the of Lyons parking agents lot, cocaine to in the mall these go Tompkins gas station, saw to a he where went building inside of the three for or four minutes. He Egger’s Tompkins then drove to Tavern. After was in placed minutes, the tavern for about fifteen he was Tompkins "patted under arrest. was down” the bar step and then was asked to outside. was He there rights read., pursuant handcuffed and was his (1966). Arizona, Miranda U.S. produced body keys

This which fit the pick-up Tompkins driving. By truck had been this agents the state at scene

time there were five surrounding separate driverless, the automobiles agents, using pick-up parked, locked truck. The pick-up key, an immediate search the the made box, one- a small which contained truck and found quarter pound plastic bags. of cocaine suppress pro- Tompkins the moved to evidence judge The denied the this search. circuit duced concluded, motion, because, he search of the truck any event, and, in arrest was incident to the inevitably would have been discovered cocaine judge that, determined lawful means. The circuit irrespective theory search, there was truck. for a search judge found as a fact there

The circuit agents’ ample Thus, obtain warrant. next time to ought Instead, one. move agents to have been obtain finding it, and searched

entered car upholds incriminating majority this evidence. mere search and states that warrantless majority justify this result. The holds cause suffices requirement no for circum- is there probable cause, warrantless-search situa- stances in a holding spirit plain contrary and tion. This meaning of our constitution. states:

The Wisconsin Constitution right people secure in their "The of the to be houses, against persons, papers, and effects unrea- violated; be searches and seizures shall not sonable upon and no warrant shall issue but Const, cause_” I, 11. Wis. art.

"Effects” this context is used the sense property.” argument Thus, be no "movable there can was not intended that the Wisconsin Constitution Cars, houses, to vehicle searches. apply persons, and papers protected are all under our constitution. provision

This constitutional was not intended to prevent all It searches. was intended to prevent only Thus, "unreasonable” searches and seizures. the ques- tion is whether the search and the seizure here were "unreasonable.” issue under what circum- stances a warrantless search of a car is be consid- ered generated "unreasonable” has a whole line of jurisprudence under the Wisconsin Constitu- —both tion and under the forth provision amendment United States Constitution. It is on this "reasonable- ground ness” that car searches may distinguished be home, from or person, paper searches.

The original case which examined question, this car-related, and which established the exigent-circum- stances-exception doctrine under the United States States, was Carroll v. United Constitution, 267 U.S. (1925). case, In that that, Court held a moving where car was open down an highway was subsequently stopped waved down and by prohibi- agents tion who had cause to believe the car alcohol, contained bootlegged the subsequent warrant- and, less search of the car hence, was reasonable permissible. that, The rationale advanced was under moving circumstances —a on open high- car an way officers could not have a obtained warrant —the Thus, before the car had passed. the Court held: guaranty of freedom from unreasonable

"[T]he searches and seizures ... has been ... construed recognizing a necessary difference between store, dwelling search of a house or other structure respect of which proper official warrant obtained, readily may be ship, a search of a boat, wagon automobile, motor or for contraband

145 a practicable not secure goods, it where is quickly can be moved the vehicle warrant because the locality jurisdiction in which or out of the Carroll, sought.” 267 at 153. U.S. must be warrant that, reasoning holding was a of this upshot moving circumstances under car, a warrant- justify cause would movable Thus, the exigent-circum- search. less automobile to the warrant exception an rationale was stances require- because warrant requirement, carved out in the of a context fatally impracticable ment was car. The reason- only-temporarily-stopped an possessed special that a car that case was ing of for car made "reasonableness” which attributes for house to a different test than that subject searches not, however, reasoning does eliminate This searches. protection for cars. constitutional exigent-circumstances accepted This court cases, among in many into law exception Wisconsin Miller, 136, v. 208 are: Wilder 190 Wis. N.W. which (1926), accepted reasoning in which this court 865 I, art. of the Carroll specifically applicable Court as 11, matter of the Wisconsin Constitution —a of the fact that analo light notable especially provision constitutional is never gous United States Leadbetter, 327, cited; 210 246 N.W. 443 State Wis. in which Carroll again explicitly case and, law; accepted into Wisconsin constitutional Friday, State v. Wis. 2d vintage, recent (Ct. 1987), in which the App. a case N.W.2d that, exigent-cir general under attorney argued doctrine, valid. For more cumstances search was Carroll, exigent-circum since sixty years than entrenched a proper doctrine has been stances I, exception requirement to the warrant under art. recently 11, and, of the Wisconsin Constitution as recognized year, attorney as last as such the general appellate in cases before Wisconsin courts.1

It should be remembered that the doctrine of exigent is on circumstances based a belief en- ought forcement officials not be limited in their by requiring when, a functions warrant under the disappear guilty circumstances, evidence would or persons escape would if a search could not be made immediately. that, It is doctrine under the constitu- erroneously majority contrary

1The asserts to the that Wis sixty years permitted for probable consin law over has a search on showing cause with of alone no circumstances. Four cases pertinent question: Hoyer State, 407, are to the v. 180 Wis. 193 (1923); Miller, 136, 208 (1926); N.W. 89 v. Wilder Wis. N.W. 865 State, Wyss 619, (1927); v. 192 Wis. 213 N.W. 318 and State v. Leadbetter, (1933). Hoyer, course, 210 Wis. 246 N.W. 443 of simply required, although held that a warrant was it was conceded justified that the situation was one that would have the issuance Wilder, irrespective therein, of a language warrant. the of vehicle, opinion involved a search of an abandoned and this court’s viability did not test the of the search had the owner moved for suppression posed question of evidence. Wilder of deodand— carrying a forfeiture to the state of vehicle It contraband. is however, States, noteworthy, that Carroll v. United U.S. quoted authority clearly, despite is as case lan —a guage context, requires exigent out taken circumstances as well Wyss State, state, upon by cause. a case relied is inapposite equally premises to the assertion. owner of licensed parked liquor a vehicle loaded with contraband on the licensed premises, permitted when the conditions the license a search of premises without consent without a warrant. State v. rationale, i.e., upon also Leadbetter relies is Carroll "it not practicable to secure a quickly warrant because the vehicle can be locality jurisdiction moved out or in which the warrant must Leadbetter, sought.” be upon by at 329. None of the cases relied that, majority proposition law, stand for the a naked as matter of plus ipso justifies an automobile facto a search. permits guidelines, search when it is reason- tional legal require warrant. It is a device able not to designed officers. Under to aid law enforcement emergency is circumstances, for a search need necessity "exigent,” i.e., for immediate there is a performed immediately, action, for, not if the search opportunity to at all. In be an search there will never here, however, no need there was the circumstances preserve the evidence. The search to for an immediate "unreasonable.” A as conducted here was search readily obtained, have been and could warrant practicable judge for a that it was found as fact circuit yet a in this case to obtain warrant the officer drugs would not be removed. No need that the ensure exigent-circumstances application doc- for the in this trine arose case. prac long-standing, jurisprudentially sound

This following circumstances doctrine tice of exigent- should continue. The search cases vehicle clear; is it has the of a doctrine benefit circumstances interpretive long jurisdiction; it in this line of cases bright line; and it consistent with draws requirement that searches and seizures be "reason recently: Further, stated "War- as this court able.” per unreasonable .... There rantless searches are se exceptions to this tenet of constitu are but few basic law, to come within one of them it must be tional exigencies ... that the of the situation rendered shown imperative.” State v. Wisumier a warrantless (1982). 737-38, ski, 722, 484 106 2d 317 N.W.2d Wis. 408, Donovan, 401, Wis. 2d See also State v. (Ct. 1979).2 App. N.W.2d requirement system justice in our must not warrant 2"[T]he by extravagant necessity.” claims of be bullied aside California however, majority, The believes that Wisconsin should abandon exigent-circumstances require- ment. The that majority believes we should adopt federal law currently vogue and hold alone should suffice to render warrantless car Thus, searches constitutional. the majority, conclud- ing exigent-circumstances doctrine presently is not the applicable automobile search law under decision, that, federal I, holds because art.

the Wisconsin Constitution is the same as the United Constitution, amendment, States fourth for a "[b]ut few inconsequential in punctuation, differences capi- talization and the singular use of the plural or form of word,” the two provisions constitutional ought to be construed identically. Op. at 130-131. rationale support that, offered to this reasoning is if Wisconsin’s provision and provision the federal were differently construed, confusion generated would be differ- ent standards. Op. at 131-132.

The majority this case rejects the firmly exigent-circumstances established doctrine on three grounds: First, that under the United States Constitu- tion, the exigent-circumstances is, doctrine for the second, that, dead; moment because of the similarity between the Wisconsin and the United States Consti- tutions, the United States Constitution automatically informs and, and definitively ours; third, elucidates that, because of the possibility for confusion should differ, the standards the standards should be identical. I find all of these unpersuasive. reasons

In the place, first as a matter of recent very history, the Court has been anything but (1985) Carney, 471 (emphasis supplied), Stevens, J., U.S. 401 dissenting.

149 exigent circumstances the issue of whether clear on required car search will be before warrantless are upheld. years, that court has issued conflict- the Over exigent ing pronouncements on whether circum- required. Thus, in the 1970 case of stances were Maroney, the 399 U.S. court v. Chambers effectively exigent no circumstances were held standing longer required, cause, but (id. 51-52), in the 1971 alone, at while would suffice Coolidge Hampshire, 403 v. U.S. case of New (1971), plurality that, of the court held where there exigent circumstances, a but no may Id. 468. not be undertaken. at warrantless search debating However, Court was whether even exigent required, Court were circumstances attenuating question of what constituted also exigent Thus, cases,

circumstances. a series of of a Court held that mobility mere fact car’s inherent exigent espe circumstances, could constitute unguarded cially car have to be left where the would Cady a warrant could be obtained. before Cf. (1973). Dombrowski, 413 U.S. 433 confusing, contradictory Su- stance preme whether circumstances were Court on through required case of continued Cardwell v. (1974). There, Lewis, U.S. Court for the time new first announced a focus: The "reduced expectation privacy.” newly struck-upon this Under illegal upholding for warrantless rationale theretofore may that, searches, the Court held there an while be expectation privacy portion interior, to the or some (id. 591), interior, no of a car at there is such expectation Soon, however, in the exterior of a car. saying very Court was that the interior little deserved protection v. Carney, privacy either.3 California (1985). U.S. 386 The majority is well aware that the continued of evolution federal search-and-seizure law is affected composition of the United States Supreme particular Court at a time. As above, demonstrated this variability has led the United Supreme States Court interpretations different over the course of This, a few only years. not a state court’s resort principles fundamental of freedom and to its own intelligence, is what has created uncertainty Therefore, confusion. in addition to disagreeing with the majority on the need to follow the will-o’-the-wisp interpretations of the United Court, States Supreme I disagree also with the majority that adhering to the well understood and soundly exigent-circum- based exception stances will lead to confusion it because require would interpret us to our constitution differ- ently than the United States Constitution. On the that, it contrary, seems to me when the decisions of the United Supreme States Court are concededly unstable, variable and this court accept should that as a reason to refuse to adopt them as precedent for this state. reduced, expection 3A almost minimalist privacy bodes ill vigorous

for the continued requirement health of a for cause. This is expectation” because as soon as "reduced becomes de (which right privacy now), no happening every even facto inspection conceptually equivalent of a vehicle is "plain of a hope majority opinion, view.” I together with the follows, Court decisions which it steps are not the first validating system where automobile searches will be subject judicial concept to no review whatsoever. The searches, cause in vehicle which justification is the sole solace and case, majority’s for the may prove decision in the instant well to be evanescent as the doctrine of circumstances. compelling rejecting Finally, reason for the most precedent in matter is the this the federal reasoning suspect. cases is of these Court arguments general, attorney in the oral at Even the upon urged court, this the cases it federal which reasoning thin,” cases "is and the of those conceded it is. "thin” in from one unsatisfac- their focus

The cases shift "Exigent tory circumstances” to another. rationale mobility,” and "in- to "inherent attenuated becomes by "expectation mobility” is herent overshadowed process privacy.”4 clear In the the constitutional people right in to be secure "[t]he mandate against unreasonable searches and their ... effects ignored. crop words, current In other seizures” stating goes beyond cases far what is of United States in context of warrant- or unreasonable reasonable actually eliminates automobiles less car searches protections from constitutional whatsoever. While all acceptable apparently moment, is, under this for the unacceptable Constitution, it is the United States under the Wisconsin Constitution. reasons, these I would hold that law

For as the law in Wisconsin now is same Wisconsin exception years: sixty That has been for over that a the Wisconsin constitutional mandate warrant noted, Court, having upon 4As Professor LaFave relied each, measure, rationales that were in some search-and-seizure deficient, LaFave, faulty recently these has combined rationales. 7.2(b) (1987) Seizure, (critiquing Search California (1985)). states, "Having Carney, LaFave 471 U.S. Professor expressed past different two vehicle search theories— privacy mobility and diminished were each some —which deficient, respects simply the Court now decided to utilize both together.” apply only

must be obtained for a car search can when investigating agents are faced with cir- reject accept I cumstances. would the invitation to "probable law the cause alone” modification of the exigent-circumstances exception to the warrant quirement. While this is not the case to define what re- exigent-circumstances the boundaries of the doctrine (because are there were no circumstances here), it is the case to reaffirm that the doctrine exists. it, that, where, Under presence I here, would hold agents, car,

of five each in his own makes exception inapplicable, the evidence seized with- suppressed out a warrant should be as the result of a I, search unlawful under art. of the Wisconsin stability Constitution. We should not abandon the rationality of our understandable Wisconsin decisions fluctuating reasoning presently for the confused and employed by the federal courts. Adherence to the principles explicit fundamental of federalism in the Constitutions of the United States and of this state requires judges, conformity state with their oaths of office, to strive for decisions based on state law that vary vagaries will not with the of the United States Supreme system Court.5 Under our federal we are judges independent governmen- jurisprudential of an entity. every tal We should not react to nuance and 5Upon point, extensively this the concurrence cites United (7th Riviera, 1987), Judge 825 F.2d 152 Cir. States and alludes to Irrespective qualifications Fairchild’s role in that decision. any panel, member of seventh circuit that court is an inferior court bound the dictates of current United States independent Court cases and is not free to exercise its court, contrast, bound, judgment. and reasonable This is not so bound, ought independently not to be so and has taken an oath to questions consider of Wisconsin constitutional law. Washington, emanating I from D.C. dissent mutation could have been law enforcement effective because just time- had the officers followed the as well served precepts law, constitutional of Wisconsin honored rights by interposing protect the of citizens also which judicial there can be a discretion before the exercise non-exigent circumstances. or a seizure search ABRA- I to state that JUSTICES authorized am join in dissent. and BABLITCH this HAMSON (dissenting). BABLITCH, J. Al- A. WILLIAM though join dissent, Justice Heffernan’s I write I Chief emphasize points: first, the reach of this case two sounding goes beyond "warrantless the innocuous well This a vehicle.” case allows a without search of including vehicle, of a entire contents warrant purses wallets, suitcases, briefcases, re- trunk, gardless time to a of whether there is obtain warrant. proof requirement only is the fact that The an after police probable cause to believe that the the had Second, its contents contained contraband. vehicle or argued by concurring not, the this case does opinion, provide weapon police in their a new the fight always against police the crime. The have had assuming right, probable cause, to search a there contents, its or a vehicle and with without warrant depending majority on the circumstances. Instead police opinion provides unnecessary with an expense savings minutes time at our óf few of rights privacy and fundamental constitutional from freedom unreasonable searches and seizures.

HH opinion majority reach extends far beyond sounding the innocuous "warrantless trunk, a vehicle.” It extends to a locked or unlocked suitcases, briefcase, purse or wallet contained within the vehicle. I,

The rule of the Fourth Amendment and Art. Sec. has been the always requirement. warrant Its purpose was to ensure that the protections afforded to all the constitution would best guaranteed be citizens by injecting judgment of an objective third into the party, judge, search decision. The exception requirement, to this warrant a warrantless search if existed, "exigent circumstances” was recognition by might the courts that evidence be in lost certain if circumstances were required to obtain a in "Exigent warrant case. every circumstance” is the given simple term to a relatively question: "Is there get time to a warrant?”

Today, stands the majority require- warrant exception ment and its on its head. With respect to the contents, automobile and its what was once the (a search) exception warrantless has now become the (the rule, and what was once the rule warrant requirement) has now become irrelevant. position

The majority justifies stating its that citizens have a expectation "diminished privacy” their automobiles and the contents. To contrary, briefcases, respect purses, at least with luggage, and like, abiding I believe most law Wisconsin citizens high expectation have a very privacy these items briefcase, regardless of purse, whether that or home, office, luggage happens to be in the in the person, reasoning on their or their automobile. The is, least, of the at majority very suspect.

hH I—I It is most unfortunate the constitutional rights guaranteed get all citizens addressed invariably rights only in the of a in court context this alleged person guilty who, for but an constitutional transgression, easy It is to would stand convicted. forget rights applicability far that the we declare have appears beyond before The the defendant who us. rights protections to that we declare afford vast abiding expectations who of law citizens have number purses, privacy wallets, in their their their brief- personal possessions regard- cases, other similar today, abiding law their Until those less of location. police right get every to had demand that citizens to such items if found their a warrant emergency in the of an situation. No vehicle absence Why? more. concurring opinion appears provide to

The opinion. majority’s is, It for the concur- motivation ring provide opinion says, hopefully a "small but significant addition to arsenal law enforcement drugs. Concurring op. ..." 141. The on at war opinion thing. majority’s provide A will no such contents, in the search of a vehicle its warrantless may circumstances, few absence of save a police definitely time, but it most minutes of a officer’s police fight provide weapon for will not a new long against drugs. the they The have had available drugs "weapon” for when of a search of vehicle contains have believe vehicle drugs. emergency they existed, If an could search emergency they If an did not exist without a warrant. today’s first a warrant. In era of had to obtain technological communications, is no advanced possible loss a few minutes formidable obstacle. pass objective party time in have an third order to judgment of the search is a on the reasonableness guarantees price pay for the constitutional small I, Sec. Amendment and Art. that the Fourth citizens, just guilty. not the provide for all concurring opinion maintains that emer- The to the requirement "can result the loss state gency though probable even evidence cause essential op. such at 139. If Concurring existed to make search." case, the us present facts before do not such is the fact, represents In the instant case a circumstances. emergen- perfect example of the reasonableness arrested, was far suspect already The cy requirement. he, nor else anyone except from his vehicle. Neither it. There only had access to not more police, warrant, time there was adequate than to obtain not incriminating any a scintilla of chance that evidence lost the time to obtain a necessary would be warrant. weapon” "new the majority

So what this police? given have now apparently they believes right without it is not Certainly had when right Police have always they warrant. no time to a warrant. had cause and obtain Thus, remains. requirement need not bother weapon” "new is that only more a warrant even when there is than procure one. time obtain adequate we rights and freedoms all The constitutional in a sweep. never be removed wholesale will enjoy Instead, on periphery, the attacks will be And nearly so small as to be indiscernible. increments be rights these and freedoms can eroded bit bit until, to find that could never day, one we awake what frontal has incremental- succeed attack succeeded gradual rights presents case such a erosion ly. This unnecessarily. so and does society today

There is much in that creates fierce rights tension in the and freedoms essential to democ- racy. drug society. allWe want a free We all want people, however, crime eradicated. Few understand or pressure objectives even sense the place these laudable goals equally privacy on desirable in our home possessions, arbitrary govern- and freedom from attempt mental action. Much is at stake as we competing balance these interests. This court has a framing determining critical role in issues, these just and people should we do so not in terms of what the rights fear, but in terms and freedoms they value. Unfortunately, majority’s holding the effect of the abiding police on who, law citizens because of error personal belongings have their most searched without rarely, warrant, ever, will if be seen this court. A few minutes of time to obtain a warrant when price pay there is time to do so is a small for the protections requirement gives warrant all particularly abiding. citizens, most the law I am authorized to state that JUSTICE SHIRLEY joins S. ABRAHAMSON in this dissent.

Case Details

Case Name: State v. Tompkins

Court Name: Wisconsin Supreme Court

Date Published: May 25, 1988

Citation: 423 N.W.2d 823

Docket Number: 86-0095-CR

Court Abbreviation: Wis.