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COURT OF APPEALS DECISION DATED AND RELEASED September 10, 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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-1195-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JACQUELINE J. BEATTIE,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
KITTY K. BRENNAN, Judge. Affirmed.
FINE,
J. Jacqueline J. Beattie appeals from a judgment entered after
a bench trial convicting her of possessing cocaine. See §§ 161.16(2)(b)1 and 161.41(3m), Stats.
She claims that the search of her car was illegal even though it was
incident to her lawful arrest. We
affirm.
Beattie was driving her
car when she was stopped and arrested by Brown Deer police officer Richard P.
Schwoegler, who was told by a police dispatcher that there was an outstanding
warrant for Beattie's arrest on fraud charges and that Beattie's driving
license had been suspended. Beattie was
handcuffed, searched, and placed in the back seat of Schwoegler's squad car
while Schwoegler searched Beattie's car.
Schwoegler noticed a loosely mounted ashtray. Schwoegler lifted the
ashtray and found drug paraphernalia and crack cocaine. Beattie argues that the search of her
automobile violated her rights under the Fourth Amendment to the United States
Constitution, Article I, Section 11 of the Wisconsin Constitution, and §
968.11, Stats.[1] We disagree.
A trial court's findings
of fact will be upheld on appeal unless they are clearly erroneous, Rule 805.17(2), Stats., made applicable to criminal proceedings by
§ 972.11(1), Stats. Whether the search of Beattie's automobile
met constitutional and statutory standards, however, is a question of law
subject to de novo review. State
v. Krier, 165 Wis.2d 673, 676, 478 N.W.2d 63, 65 (Ct. App. 1991).
The Fourth Amendment,
Article I, Section 11 of the Wisconsin Constitution, and § 968.11, Stats., are consistent with one another
and are coextensive. State v. Fry,
131 Wis.2d 153, 171–176, 388 N.W.2d 565, 573–575 (1986), cert. denied,
479 U.S. 989 (1986). Under these
provisions, a search incident to an arrest is reasonable if it is in an area
from which the person being arrested might at the time of arrest have access to
a weapon or evidence that can be destroyed irrespective of whether the area
being searched is actually accessible at the time of the search. New York v. Belton, 453 U.S.
454, 460–462 (1981); Fry, 131 Wis.2d at 174–175, 388 N.W.2d at
574; cf. State v. Murdock, 155 Wis.2d 217, 231, 455 N.W.2d
618, 624 (1990) (search of residence).
Moreover, it makes no difference whether the arrest is for a traffic
offense or something more serious. Whren
v. United States, 116 S. Ct. 1769 (1996) (traffic arrest—proposition
not questioned); United States v. Robinson, 414 U.S. 218 (1973)
(traffic arrest—proposition not questioned); United States v. Pino,
855 F.2d 357, 363–364 (6th Cir. 1988), cert. denied, 493 U.S. 1090
(1990).
Among the places that
can be lawfully searched incident to a legal arrest are containers inside the
automobile, irrespective of whether they are open or closed. Belton,
453 U.S. at 460 n.4, 461–462.
Significantly, in both Belton and Fry, as
here, the persons arrested no longer had actual access to the interior of the
car being searched at the time of the search, Belton, 453 U.S. at
455–456, 466 (Brennan, J., dissenting); Fry, 131 Wis.2d at 186,
388 N.W.2d at 579 (Bablitch, J., dissenting). Indeed, in Fry, the
officers searched a locked glove compartment while the persons arrested
were handcuffed, seated in squad cars, and guarded by police officers. Id. The search of the interior of Beattie's car incident to her
lawful arrest was valid.[2]
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[1] The Fourth Amendment
provides:
The
right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
Article I, Section 11 of
the Wisconsin Constitution provides:
The right of the people to be
secure in their persons, houses, papers, and effects against unreasonable
searches and seizures shall not be violated; and no warrant shall issue but
upon probable cause, supported by oath or affirmation, and particularly
describing the place to be searched and the persons or things to be seized.
Section 968.11, Stats., provides:
Scope of search incident to
lawful arrest. When a lawful arrest is made, a law
enforcement officer may reasonably search the person arrested and an area
within such person's immediate presence for the purpose of:
(1) Protecting the officer from
attack;
(2) Preventing the person from
escaping;
(3) Discovering and seizing the
fruits of the crime; or
(4) Discovering and seizing any instruments, articles or things which may have been used in the commission of, or which may constitute evidence of, the offense.