COURT OF APPEALS DECISION DATED AND FILED April 26, 2011 A.
John Voelker Acting 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 No. |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT III |
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State of
Plaintiff-Appellant, v. Anthony Douglas Crawford,
Defendant-Respondent. |
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APPEAL
from an order of the circuit court for
Before
¶1 PER CURIAM. The State appeals an order suppressing the contents of Anthony Crawford’s duffel bag. In a previous appeal State v. Crawford, No. 2008AP2472‑CR, unpublished slip op. (WI App June 23, 2009), this court reversed Crawford’s conviction and directed the circuit court to suppress evidence seized after Crawford’s unlawful arrest. The State dismissed the case and immediately filed a new complaint charging the same offenses as those alleged in the initial complaint. Crawford moved to suppress the evidence and the circuit court granted the motion, concluding the earlier appeal compelled that result based on issue preclusion and the “law of the case doctrine.” We need not determine whether issue preclusion applies because we conclude that this court’s previous direction to suppress the evidence is law of the case.
Background
¶2 Police were dispatched to the scene of a one-car rollover accident. An emergency medical technician on the scene saw the injured driver, Crawford, go into a nearby woods. Sergeant Barry Cech followed Crawford’s tracks in the snow while Deputy William Kurtz went ahead in the squad car in an attempt to intercept Crawford. Kurtz testified at the suppression hearing that he announced over the squad car loudspeaker that Crawford was under arrest. Kurtz eventually parked the squad car and waited for Crawford to approach. When Crawford came into view, he was carrying something in his hand that was later determined to be a cell phone. Kurtz told Crawford to put his hands in the air and that he was under arrest.
¶3 Cech testified that he heard Kurtz calling for Crawford to get down on the ground. He began running toward them when he observed a duffel bag in a clump of pine trees. He grabbed the duffel bag and continued running toward Kurtz and Crawford. The officers then placed handcuffs on Crawford and led him back to the squad car. They placed the duffel bag on the trunk and frisked Crawford, finding cocaine in his pocket. After Crawford was taken to a helicopter, they searched the duffel bag and found narcotics, paraphernalia and cash.
¶4 At the initial suppression hearing, the State offered various reasons for validating the searches. The circuit court concluded that Crawford was legally arrested and searched pursuant to the police’s community caretaker role. Crawford then entered a plea agreement and pled no contest to a reduced misdemeanor charge.
¶5 On appeal, we concluded that the officers were not acting as community caretakers when they arrested Crawford. Therefore, evidence seized after the unlawful arrest should have been suppressed. We remanded the matter to the circuit court with directions to grant Crawford’s suppression motion. In the opinion, we noted, “The State did not argue before the circuit court or before this court any other basis to uphold Crawford’s arrest.” In a footnote, we observed that, at the suppression hearing, the State contended Crawford had abandoned the duffel bag, but it neither argued to the circuit court nor this court that the abandonment provided a basis, independent of his initial seizure, to search Crawford or his belongings.
Discussion
¶6 The State identifies three reasons why it believes our
earlier decision should not be considered law of the case. First, it argues that the footnote regarding
its failure to justify the search on any basis other than the caretaker function
“only established waiver for purposes of the previous appeal, not for all
future appeals.” That argument misses
the point of the law of the case doctrine.
The doctrine provides that a decision on a legal issue by an appellate
court establishes the law of the case that must be followed in all subsequent
proceedings in the case both in the circuit and appellate courts. State v. Casteel, 2001 WI App 188,
¶15, 247
¶7 The State’s second argument for not applying the doctrine is that our mandate only required suppression of evidence seized after Crawford’s arrest. The State contends that the duffel bag was abandoned before Crawford’s arrest and its contents would have been inevitably discovered. That argument fails for several reasons. First, it ignores the loudspeaker message that Crawford was under arrest. Second, it ignores Cech’s testimony that he heard Kurtz order Crawford to “get down on the ground” before he seized the duffel bag. Third, the argument assumes that the duffel bag was the incriminating evidence rather than its contents. The bag was not opened until well after Crawford was arrested. Therefore, our mandate that required the circuit court to suppress evidence seized after Crawford’s arrest included the contents of the duffel bag.
¶8 The State’s third argument for not applying law of the case
is that we erroneously stated that the theories of abandonment and inevitable
discovery were not presented to the circuit court at the initial suppression
hearing. The State notes that it made
that argument in the circuit court. It
contends that our mischaracterization of “salient facts” presents a cogent
reason for disregarding the law of the case.
We disagree. Whether the issue
was raised in the circuit court is not a cogent reason for disregarding the law
of the case. The gist of the footnote
was that the State failed to pursue any alternative theories in its brief on
appeal. A respondent on appeal has broad
latitude to argue that the circuit court’s decision was right for a different
reason.
¶9 The State correctly notes that courts are not bound to follow
the law of the case doctrine and may disregard it in the interest of
justice.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2009-10).