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COURT OF APPEALS DECISION DATED AND FILED July 5, 2006 Cornelia G. Clark Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.� A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.� |
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����������� APPEAL from an order of the circuit court for Shawano County:� THOMAS G. GROVER, Judge.� Reversed and cause remanded.�
����������� Before Cane, C.J., Hoover, P.J., and Peterson, J.
�1����������������������� PER CURIAM.�� The State of Wisconsin appeals an order granting John Zittlow�s motion to suppress evidence and dismissing pending charges against him.� The State asserts the court erred when it concluded a search of Zittlow�s vehicle incident to the arrest of one of his passengers was a Fourth Amendment violation.� Because there is a bright-line rule permitting searches of vehicles incident to lawful arrests, we reverse the order and remand the case to the circuit court for further proceedings.
�2����������������������� The relevant facts are undisputed.� Shawano County Deputy Sheriff Wade Wudtke stopped Zittlow for speeding.� Zittlow had two passengers, Kathleen Stein and Nicole Price.� Stein was in the front passenger seat and Price was in the back seat.� Wudtke ran all three occupants� identifications through dispatch, which informed Wudtke that Price had multiple warrants out for her arrest.� Wudtke gave Zittlow a written warning for speeding, explained that he would be arresting Price, and further explained that he would be searching the vehicle incident to the arrest.
�3����������������������� When Wudtke searched the vehicle, he found a backpack in the rear seat.� When he moved the backpack, Wudtke could smell marijuana and saw a pipe in an open pocket.� Wudtke removed the backpack from the car and asked whose it was.� Zittlow admitted it was his.� In total, Wudtke discovered marijuana, two scales, plastic bags, the pipe, and $1,000 cash in the backpack.
�4����������������������� The State charged Zittlow with one count of possession of marijuana with the intent to deliver, one count of possession of marijuana, and one count of possession of drug paraphernalia.� After the preliminary hearing, an Information was filed with the same charges, plus one count of possession of psilocybin with the intent to deliver.
�5����������������������� Zittlow moved to suppress evidence obtained from the search of his vehicle.� At the suppression hearing, Wudtke testified he would not have searched the vehicle but for Price�s arrest.� A stipulation of facts submitted to supplement the evidence from the hearing indicated that Price�s warrants were for failure to pay forfeitures.� The court granted the motion to suppress, concluding that Zittlow�s constitutional rights had been violated.� The court then dismissed the pending charges against Zittlow, since the evidence obtained in the search had formed the basis for the charges.� The State appeals.
�6����������������������� Whether a search passes constitutional muster is a question of constitutional fact.� See State v. Pallone, 2000 WI 77, �26, 236 Wis. 2d 162, 613 N.W.2d 568.� We review such questions in two steps.� Id., �27.� First, we apply a deferential standard to the circuit court�s findings of evidentiary, historical facts, affirming them unless clearly erroneous.� Id.� Second, we review the application of constitutional principles to those facts independently.� Id.
�7����������������������� A basic principle of the Fourth Amendment is that it prohibits a search without a warrant supported by probable cause.� New York v. Belton, 453 U.S. 454, 457 (1981).� There are, however, recognized exceptions to the warrant requirement.� For example, in Chimel v. California, 395 U.S. 752, the Supreme Court held that a lawful custodial arrest justified the warrantless search of a person arrested and the immediately surrounding area.� See id. at 763; Belton, 453 U.S. at 457.� In United States v. Robinson, 414 U.S. 218, the Supreme Court further held that after a lawful custodial arrest, search of the person is not only an exception to the warrant requirement but is reasonable under the Fourth Amendment.� Id. at 235.
�8����������������������� There are multiple historical reasons justifying the search-incident-to-arrest exception.� In Wisconsin, these have been codified in Wis. Stat. � 968.11 (2003-04), which states:
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.
�9����������������������� Prior to Belton, however, the Supreme Court had not discussed the propriety of searching a vehicle�s passenger compartment following arrest of the occupants.� The Belton Court ultimately held �when a policeman has made a lawful custodial arrest of the occupant of an automobile � he may as a contemporaneous incident of that arrest, search the passenger compartment of that automobile� and any containers within the passenger compartment.� Belton, 453 U.S. at 460.�
�10����������������������� Our supreme court adopted Belton in State v. Fry, 131 Wis. 2d 153, 175, 388 N.W.2d 565 (1986).� Analyzing the relationship between Wis. Stat. � 968.11 and Belton, the court explained:
The statute authorizes searches incident to arrest and then defines the underlying justification for this exception to the warrant requirement.� The justification of such a search of the person arrested and an area within the person�s immediate presence exist regardless of the officer�s subjective intent.� In [another case], we specifically recognized that the [S]tate does not have to prove the purpose of a search incident to arrest.
Fry, 131 Wis. 2d at 168-69.� The court also concluded the Belton rule �is a simple and reasonable rule governing the search of an automobile after an arrest is made� and �is a reasonable application of the search incident to arrest exception to the warrant requirement.�� Fry, 131 Wis. 2d at 174-75.
�11����������������������� Subsequent jurisprudence, and jurisprudence from other jurisdictions, has on occasion questioned whether Belton created too large an exception to the warrant requirement.[1]� However, this court is bound by prior precedent of the state supreme court.� Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997).� Fry and Belton permit a search of a vehicle�s passenger compartment when one of the vehicle�s occupants is lawfully arrested, the precise situation here.
����������� By the Court.�Order reversed and cause remanded.�����
����������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)5.
[1] Zittlow�s reliance on Knowles v. Iowa, 525 U.S. 113 (1998), is misplaced.� There was no arrest in that case prior to the search.� Zittlow�s reliance on State v. Malone, 2004 WI 108, ��17, 34, 274 Wis. 2d 540, 683 N.W.2d 1, is also unavailing.� Malone, as relevant here, merely indicates a general disdain for bright-line rules, particularly when �reasonableness� is part of the analysis.� It does not, however, overturn existing rules.
Zittlow also suggests that State v. Pallone, 2000 WI 77, �42, 236 Wis. 2d 162, 613 N.W.2d 568, created a rule that, if there is a custodial arrest, we must then inquire whether there is nonetheless justification for a search.� The mention of looking for an underlying justification for the search went merely to the overall question of whether, under Pallone�s fact situation, a non-arrested passenger�s belonging should be exempted from a search incident to arrest when the driver is the one arrested.� The court declined to make such an exception.�
Indeed, Pallone expressly recognizes New York v. Belton, 453 U.S. 454, 457 (1981).� It also recognizes that �the �fact of the lawful arrest� establishes the authority to search � [and] this exception does not require a showing that the police officer had probable cause to believe that a vehicle contains contraband.�� Pallone, 236 Wis. 2d 162, �32 (citation omitted).� Pallone further notes that the fact of the arrest itself gives rise to two of the concerns justifying a warrantless search�ensuring officer safety and the need to discover and preserve evidence.� Id.� Nowhere does Pallone explicitly purport to overrule, reject, or otherwise modify Fry or Belton.