|
COURT OF APPEALS DECISION DATED AND RELEASED September
20, 1995 |
NOTICE |
|
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. 95-1029-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
JEFFREY
L. MEYERS,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Manitowoc County: FRED H. HAZLEWOOD,
Judge. Affirmed.
SNYDER,
J. Jeffrey
L. Meyers challenges the denial of his motion to suppress evidence which
resulted in his conviction of possession of marijuana with intent to deliver,
as party to a crime, contrary to §§ 161.41(1m)(h)1 and 939.05, Stats.
Meyers contends that the warrantless search of the van he was driving
was not justified by any of the recognized exceptions to the warrant
requirement. We disagree and affirm.
The
facts are undisputed. On October 6, 1994,
Manitowoc County Deputy Sheriff Joseph E. Keil stopped the van because of a
defective tail lamp. Meyers identified
himself with a valid Wisconsin driver's license. Because the front seat passenger was not wearing his seat belt,
Keil also requested his identification.
The passenger denied he had identification, but stated he was Kevin D.
Batcher and that his date of birth was September 25, 1967.
A
record check indicated that Kevin D. Batcher was an alias for Gary Batcher and
that an active warrant existed for each name.
The response also provided identifying physical marks (a scar and a
mole) on the person of Gary, a/k/a Kevin D. Batcher. Keil then opened the van's passenger door to check Batcher
against the identifying information.
The
open passenger door revealed a small plastic baggie on the van floor. The plastic baggie contained “small
particles of a green leafy substance” and “you could smell a slight odor of
marijuana.” Keil also noticed green,
leafy particles between Batcher's legs on the seat and on the dashboard of the
van. In addition, Keil noticed green,
leafy vegetable material on a table directly behind the driver's seat that
appeared to be marijuana.
Keil
asked Batcher if he could search the vehicle and Batcher refused.[1] Keil then told Batcher that he believed the
van contained marijuana, and he searched the van without Batcher's
consent. During the search, an
additional plastic bag containing approximately sixty-three grams of marijuana
was found behind the driver's seat.
Batcher was arrested after the van search.[2]
During
the period that Batcher's identification was being established, Meyers had left
the van at Keil's request and was seated in Keil's squad car. Meyers complains that: (1) the search was not incident to an
arrest, and (2) there was insufficient probable cause to support a warrantless
search of the van.[3]
Warrantless
searches are per se unreasonable, and the State bears the burden of proving
that the search and seizure at issue fall within one of a few, narrowly-drawn
exceptions. State v. Milashoski,
159 Wis.2d 99, 110-11, 464 N.W.2d 21, 25-26 (Ct. App. 1990), aff'd, 163
Wis.2d 72, 471 N.W.2d 42 (1991). We
will uphold a trial court's findings of fact unless the findings are against
the great weight and clear preponderance of the evidence. State v. King, 175 Wis.2d 146,
150, 499 N.W.2d 190, 191 (Ct. App. 1993).
However, whether a search or seizure passes constitutional muster is a
question of law that we review de novo.
Id.
We
agree with the trial court that “the obvious progression of events ...
indicates that there was probable cause to search the motor vehicle.” Those events include the two observed
traffic violations, the identification requests, the indication of active
warrants for the passenger, the further investigation of the passenger's
identity and the resulting observation of the materials in the van that Keil
believed to be marijuana.
Keil
observed that the van operated by Meyers had a defective tail lamp in violation
of § 347.13(1), Stats.,[4]
and that the front seat passenger was not wearing a seat belt in violation of §
347.48(2m)(d), Stats.[5] An officer has a statutory duty to enforce
the law where he or she observes a traffic violation. Section 349.02(1), Stats. Having observed the tail lamp violation,
Keil legally stopped the van to issue an appropriate citation or warning. See State v. White, 97
Wis.2d 193, 205, 295 N.W.2d 346, 351 (1980).
Because
Keil had observed the additional seat belt violation, he had authority to
arrest Meyers and Batcher without a warrant for traffic offenses. See § 345.22, Stats.[6] Such arrests are accomplished by the
issuance of a uniform traffic citation.
See § 345.23, Stats. The uniform traffic citation requires the
traffic offender's name. See §
345.11(2), Stats. Keil was therefore authorized to request
identification from both Meyers and Batcher.
To
confirm the identifications, Keil requested a record check of each. Because the return indicated that Batcher
was the subject of an active warrant, Keil had authority to either arrest him, see
§ 968.07(1)(b), Stats., or to
investigate his identity further. Keil
chose the latter and opened the passenger door to compare Batcher against the
physical identification information he had received.[7] This was reasonable and warranted.
After
opening the van door, Keil saw a small plastic baggie on the van floor and
testified that “you could see small particles of a green leafy substance and
open the baggie up and you could smell a slight odor of marijuana.” He observed “more green leafy particles
between [Batcher's] legs which appeared to be marijuana, and ... if you looked
on the dash of the vehicle there was ... a lot of green leafy particles which
also appeared to be marijuana.”
Where
the police have probable cause to believe that evidence of a crime is in an
automobile, a warrantless search may be conducted. State v. Tompkins, 144 Wis.2d 116, 137-38, 423
N.W.2d 823, 832 (1988). This is based,
in part, on a diminished expectation of privacy in an automobile. Id. at 128, 423 N.W.2d at 828
(citing California v. Carney, 471 U.S. 386, 392‑93
(1985)). Our supreme court has said
that “all that is required to justify a search of an automobile is reasonable
or probable cause for believing that its contents offend against the law.” State v. Leadbetter, 210 Wis.
327, 333, 246 N.W. 443, 445 (1933).
Marijuana, a controlled substance, offends against the law. See § 161.14(4)(t), Stats.
Keil,
under the facts and circumstances present, had within his knowledge sufficient
information to justify as reasonable each step in the procedure that led to the
van search and the seizure of the drug evidence. We conclude that Keil had probable cause to search the van after
observing that it contained a material that he believed to be marijuana.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[1] A prior vehicle
registration check indicated that the van was registered to Kevin Batcher
rather than to Meyers.
[2] Keil established
the true identity of Batcher when he called Batcher's mother and she identified
him as Lan Batcher rather than Kevin or Gary Batcher. A record check indicated that Waukesha County had active warrants
for Lan Batcher and he was taken into custody on the warrants after the van was
searched.
[3] Meyers suggests
in his appeal that his detention was overly lengthy and not justifiable. However, he neither raised nor argued that
point to the trial court. We do not
consider arguments raised for the first time on appeal. Meas v. Young, 138 Wis.2d 89,
94 n.3, 405 N.W.2d 697, 699 (Ct. App. 1987).
[4] Section
347.13(1), Stats., states in
part:
No vehicle originally equipped at the time of manufacture and sale with
2 tail lamps shall be operated upon a highway during hours of darkness unless
both such lamps are in good working order.
[5] Section
347.48(2m)(d), Stats., states in
relevant part:
If a motor vehicle is required to be equipped with safety belts in this
state, no person who is ... seated at a designated seating position in the
front seat required ... to have a safety belt installed ... may be a passenger
in that motor vehicle unless the person is properly restrained.