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COURT OF APPEALS DECISION DATED AND RELEASED MAY 14, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0116-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
MARTIN PATTERSON,
Defendant-Appellant.
APPEAL from judgments of
the circuit court for Outagamie County:
DEE R. DYER, Judge. Affirmed.
CANE, P.J. Martin Patterson appeals his convictions
for possession of cocaine and carrying a concealed weapon. At issue is whether Patterson was under
arrest when the officer searched him and found a vial of cocaine and a
knife. Because the search of Patterson
was incidental to an arrest, the convictions are affirmed.
The facts are
essentially undisputed.[1] Officer Jeffrey Olburg assisted a state
patrol officer stop a blue Blazer that had been observed wandering from lane to
lane on Highway 41. While the trooper
approached the driver of the Blazer, Olburg simultaneously approached on the
passenger's side. Olburg observed a
wine cooler bottle tipped over with wine cooler still in it and laying at the
feet of Patterson, the passenger.
Olburg opened the door and told Patterson to get out of the car. Olburg advised Patterson that he was giving
him a ticket for having an open intoxicant in a motor vehicle. When asked at the suppression hearing
whether he placed Patterson under arrest for possessing the open intoxicants,
Olburg replied,
A. Yeah.
Well, we had been back to my squad car and I had asked him to have a
seat in the back of my squad because it was kind of cool out and windy and I
asked him if he had any guns, knives or needles and he stated, no, that he
didn't.
Q. And you did that after you told him that he was
going to be cited for open intoxicants?
A. Correct.
Prior to placing
Patterson in the squad car, Olburg searched Patterson and found a vial of
cocaine and a "butterfly knife."
At that point, Olburg told Patterson that he was under arrest for
carrying a concealed weapon and possession of a controlled substance.
Patterson does not
question whether Olburg had probable cause to arrest him for possessing open
intoxicants in a motor vehicle. Rather,
he contends that Olburg never placed him under arrest until after the vial of
cocaine and a butterfly knife were found during the search. Patterson relies partly on Olburg's
testimony stating that after he found these items, he informed Patterson that
he was going to be placed under arrest for carrying a concealed weapon and
possession of controlled substances.
Patterson also contends that the only reason he was being placed in the
backseat of the officer's car was because of the weather and because the
officer did not want him standing outside while the trooper conducted a field
sobriety test of the driver.
The critical determination
on appeal is whether the search of Patterson was incident to an arrest or
merely a pat down frisk for weapons. In
the well-known case of Terry v. Ohio, 392 U.S. 1 (1968), the
United States Supreme Court distinguished a search incident to arrest from a
pat down frisk for weapons. The Terry
Court explained that a search incident to arrest is not only necessary to
protect the arresting officer, but also to discover evidence of a crime and
involves a relatively extensive exploration of the subject. Id. at 25. A pat down frisk for weapons, on the other
hand, is only necessary for the discovery of weapons which might be used to
harm the police officer or others nearby.
Thus, it must be confined in scope such that the police officer should
pat down the suspect in a manner which is minimally necessary for the discovery
of weapons. Id. at 30.
Here, the State contends
the search was incidental to an arrest.
It concedes, however, that if the seizure of the cocaine occurred upon a
mere pat down frisk for weapons during an investigatory stop and not incident
to an arrest, the seizure of the cocaine was unlawful under the Fourth
Amendment to the United States Constitution.
On the other hand, Patterson concedes that if the search and the
discovery of the cocaine and the knife occurred incident to an arrest, then the
search was legal under the Fourth Amendment.
Both sides agree that
the standard generally used to determine the moment of arrest in the
constitutional sense is whether a reasonable person in the defendant's position
would have considered himself or herself to be "in custody," given
the degree of restraint under the circumstances. Citing Berkemer v.
McCarty, 468 U.S. 420, 441-42 (1984), the Wisconsin Supreme Court
adopted this standard in State v. Swanson, 164 Wis.2d 437,
446-47, 475 N.W.2d 148, 152 (1991), in order to provide uniformity and
consistency with cases decided by the United States Supreme Court and other
federal and state courts. The
circumstances of the situation including what has been communicated by the
police officers, either by their words or actions, shall be controlling under
the objective test. Swanson,
164 Wis.2d at 447, 475 N.W.2d at 152.
The officers' unarticulated plan is irrelevant in determining the
question of custody. Id.
Whether a person is in
custody is a question of law where facts regarding whether a defendant was
under arrest at the time of the search are not disputed. Id. at 445, 475 N.W.2d at
152. To the extent that the facts are
disputed, we must accept the trial court's findings unless they are clearly
erroneous. See State v.
Guzy, 139 Wis.2d 663, 671, 407 N.W.2d 548, 552 (1987). Where the trial court has not expressly made
a finding necessary to support its legal conclusion, this court can assume that
the trial court made the finding in a way that supports its decision. See Sohns v. Jensen, 11 Wis.2d
449, 453, 105 N.W.2d 818, 820 (1960).
Additionally, the search
incident to an arrest exception applies not only to criminal matters, but also
to lawful arrests for noncriminal traffic matters. A person lawfully arrested for a traffic violation may be
searched without a search warrant and if the search turns up incriminating
evidence of a more serious crime, the evidence is admissible against the
person. State v. King,
142 Wis.2d 207, 210, 418 N.W.2d 11, 12 (Ct. App. 1987) (citing State v.
Mabra, 61 Wis.2d 613, 623, 213 N.W.2d 545, 550 (1974)). Also, the United States Supreme Court has
ruled that the Fourth Amendment does not bar searches incident to traffic
arrests. Gustafson v. Florida,
414 U.S. 260, 265 (1973).
Here, Olburg removed the
open wine cooler near Patterson's feet while Patterson remained in the
car. Olburg had Patterson step out of
the vehicle and informed him that he was getting a ticket for possessing open
intoxicants in a motor vehicle. He told
Patterson to have a seat in the back of the squad car. However, prior to entering the squad car,
Olburg asked him if he had any guns, knives or needles. It is important to note that Olburg was no
longer investigating Patterson for suspicion of any offense when conducting the
search. He then searched Patterson
before having him sit in the back of the squad car.
Although Patterson
claims the officer was placing him in the backseat of the squad car as a matter
of courtesy because of the weather, this was not articulated to Patterson. Nor did the officer ever use the word "arrest"
prior to the search. However, it was
obvious that Patterson was no longer allowed to freely wander around the site
of the traffic stop. Unlike the facts
in Swanson where the officer was making a routine traffic stop
for a person suspected of driving while intoxicated, Olburg had already
determined that Patterson had committed an offense, informed Patterson that he
was getting a ticket for the offense and was placing him in the backseat of the
squad car.
Viewed objectively, it
would be unreasonable for Patterson to believe he was free to leave. A reasonable person in Patterson's position
would believe that until he had received the citation for the traffic offense,
he was not free to leave and remained in custody for the offense. Thus, he was under arrest in the constitutional
sense at the time of the search. The
search leading to the discovery of the cocaine and the knife was therefore
reasonable under the Fourth Amendment as a search incident to an arrest. The convictions are affirmed.
By the Court.—Judgments
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.