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COURT OF
APPEALS DECISION DATED AND
RELEASED February
22, 1996 |
NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound
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No. 95-1681-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Appellant,
v.
KIMBERLY
SOTELO,
Defendant-Respondent.
APPEAL
from an order of the circuit court for Dane County: MICHAEL B. TORPHY, Judge.
Reversed.
SUNDBY,
J. The State appeals from an order suppressing evidence seized
in a search of defendant Kimberly Sotelo's automobile, incident to her arrest
for a traffic violation. It presents
one issue:
May a police officer who has made a lawful arrest of a
motorist after a traffic stop, search the motorist's vehicle incident to arrest
even though she is handcuffed and secured in a squad car twenty feet from the
vehicle searched?
We[1]
conclude that under the so-called Belton[2]
bright-line rule, the police officer's search in this case did not violate the
Fourth Amendment. We therefore reverse
the order granting Sotelo's motion to suppress.
In
her statement of the issue, Sotelo adds that the police officer lacked probable
cause to believe that her car contained contraband and the officer did not
impound the car. Because the State
justifies the unwarranted search of Sotelo's automobile as incident to her
lawful custodial arrest, these considerations are not relevant.
Background
On
April 2, 1995, at 9:55 p.m., Officer Lisa Kaufman stopped an automobile with
its lights off operated by Sotelo. Her
routine check disclosed that Sotelo was the subject of an arrest warrant. Kaufman required Sotelo to step out of her
car but allowed her to remove her jacket and place it in the car. Officer Kaufman then searched and handcuffed
Sotelo and seatbelted her in the back seat of Kaufman's squad car, parked at
least twenty feet behind Sotelo's car.
Kaufman then searched Sotelo's car, without consent or a warrant. The officer found and seized marijuana in
Sotelo's jacket.
The
trial court granted Sotelo's motion to suppress evidence of her possession of
marijuana. The court stated: "This can hardly be classified as a
search incident to an arrest."
Chimel v.
California
Chimel
v. California, 395 U.S. 752 (1969),
established the "grabbable area" test for warrantless searches
incident to custodial arrests. Chimel
involved a warrantless search of the arrestee's premises, not the search of an
automobile. The Court expressly
overruled Harris v. United States, 331 U.S. 145
(1947) and United States v. Rabinowitz, 339 U.S. 56 (1950), which
allowed the police to make a warrantless search of the entire premises incident
to an arrest of the occupant. See
3 Wayne R. LaFave, Search and Seizure § 7.1(a), at 433
(1996).
The
Chimel majority reasoned that because the rationale underlying
search incident to arrest was the need to prevent the arrestee from obtaining a
weapon or destroying evidence, such a search could extend only to "the
arrestee's person and the area `within his immediate control'--construing that
phrase to mean the area from within which he might gain possession of a weapon
or destructible evidence." Id.
at 433-34 (quoting Chimel, 395 U.S. at 763).
The
lower courts were initially hesitant to apply Chimel to
warrantless searches of vehicles incident to arrest. Id. at 434.
Most of the lower court decisions applying Chimel to
searches of automobiles dealt with situations in which the arrestee was outside
the vehicle at the time of the search. Id.
at 435. The courts were widely divided
on the question whether Chimel allowed warrantless custodial
incident-to-arrest searches where it was extremely unlikely that the arrestee
could regain access to his or her car. Id. The Court resolved the conflicts in New
York v. Belton, 453 U.S. 454 (1981).
New York v. Belton
Belton
was a passenger in a speeding car stopped by New York State Police. When he asked for the operator's driver's
license, the officer smelled marijuana.
He arrested the vehicle's four occupants, removed them from the car,
patted them down, and separated them outside the car while he searched the
car. The search revealed a package of
cocaine in the zippered pocket of Belton's jacket in the back seat. 453 U.S. at 455-56. The New York Court of Appeals held that the
cocaine was obtained pursuant to a warrantless search of an inaccessible jacket
which could not possibly have been reached by the defendant, who was detained
outside and away from the stopped car.
It held the search did not fall within the exception provided for
searches incident to a lawful arrest. Id.
at 456-57.
The
United States Supreme Court reversed, holding that the evidence was erroneously
suppressed. The Court attempted to
create a "bright-line" rule to guide the police in searching motor
vehicles incident to "lawful custodial arrests."[3] The Court stated: "[W]e hold that 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." Id. at 460 (footnote omitted).[4] Belton presumes that the
interior of an automobile, including any containers therein, is within the
arrestee's "immediate control."
LaFave
says: "[U]nder Belton
a search of the vehicle is allowed even after the defendant was removed from
it, handcuffed, and placed in the squad car, or even if a single defendant was
in the custody of several officers."
Search and Seizure §
7.1(c), at 448-49. LaFave is not
optimistic about the vitality of Belton. See State v. Pulver,
No. 93-1117-CR, unpublished slip op. at n.6 (Wis. Ct. App. Nov. 11, 1993).[5]
Whatever
the future, Belton is presently binding on all federal courts,
and on state courts unless the court concludes that its state's constitution
requires a different result. The
Wisconsin Supreme Court considers that it is bound to follow the United States
Supreme Court's interpretations of the Fourth Amendment in applying article I,
§ 11 of the Wisconsin Constitution, which is virtually identical to the
Fourth Amendment. State v. Fry,
131 Wis.2d 153, 172, 388 N.W.2d 565, 573, cert. denied, 479 U.S. 989
(1986).
State v. Fry
The
court affirmed Fry's conviction for carrying a concealed weapon, which the
police discovered in a warrantless search of the locked glove compartment of
his automobile, incident to his custodial arrest. Fry argued that the search did not qualify as a search incident
to arrest because he was not in the car when the officers searched it. 131 Wis.2d at 159, 388 N.W.2d at 568. The court adopted what it considered the Belton
rule:
A police officer may assume under Belton
that the interior of an automobile is within the reach of a defendant when the
defendant is still at the scene of an arrest but the defendant is not
physically in the vehicle. We cannot
say as a matter of fact in all cases that a defendant never could regain access
to the interior of an automobile after initially leaving the vehicle.
Id. at 174, 388 N.W.2d at 574.
The
Fry court rejected a case-by-case analysis of warrantless
searches of automobiles which would depend on whether the police reasonably
believed that an arrestee could escape from their control and regain access to
an automobile. Id. at
175, 388 N.W.2d at 574. The court said
that that alternative was unworkable because of the unpredictability of such
escapes. Id. The court preferred Belton's
"bright-line" rule because it relieves the officer of making ad hoc
at-the-scene decisions to search or not to search.
However,
Fry leaves uncertain how much of Belton's
bright-line rule the court intended to adopt.
The court said:
The search is based on a need to protect evidence or the
police and includes the area in the defendant's reach or presence. The exigency is the defendant's potential
for regaining access to the area of the car.
131 Wis.2d at 181, 388 N.W.2d at 577.
This
statement does not describe Belton's bright-line rule. The Belton court specifically
rejected the case-by-case analysis required by Fry's reliance
upon defendant's potential for regaining access to his or her vehicle. See 453 U.S. at 459. The Belton bright-line rule is
simple and easily applied:
[W]e hold that 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.
Id. at 460 (footnote omitted).
Whether
Belton's bright-line rule will survive is another matter which
need not concern us.
Is This Case
Different?
On
their facts, neither Belton nor Fry involved a fact
situation such as that presented here; neither Belton nor Fry would have had to
possess Houdini-like powers to regain access to his automobile. See United States v. Vasey,
834 F.2d 782, 787 (9th Cir. 1971).
Here, however, Sotelo was handcuffed, seatbelted and locked in the squad
car's "cage." Two armed
officers were present. Clearly, Chimel's
"grabbable area" rule would not justify the warrantless search which
the officer made in this case.
However,
in accord with its disavowal of an intent to change Chimel's
rule,[6]
the Belton Court said:
"Our holding today does no more than determine the meaning of Chimel's
principles in this particular and problematic context. It in no way alters the fundamental
principles established in the Chimel case regarding the basic
scope of searches incident to lawful custodial arrests." 453 U.S. at 460 n.3 (emphasis added). Belton's "problematic
context" is the warrantless search of an automobile. Warrantless searches of premises remain
subject to the Chimel rule.
LaFave concludes that the Belton Court erred in not
considering the automobile exception.[7] Plainly, the Court's bright-line rule may
have to be considered in future automobile exception cases.
The
only low-voltage areas of Belton's bright-line rule concern when
a search is contemporaneous with the occupant's arrest and what constitutes the
passenger compartment of an automobile.
Neither of these concerns is present here. Other problematic areas--whether there was a lawful custodial[8]
arrest and the search of containers--must be explored by already established
rules which are not so bright. However,
Sotelo does not ask us to illumine these dark corners.
While
certain language of Fry does not track Belton's
rule, because the Wisconsin court follows the United States Supreme Court's
Fourth Amendment decisional law, we conclude that precedential decisional law
requires that we hold that the trial court erred in granting Sotelo's motion to
suppress.
By
the Court.—Order reversed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[1] This appeal is decided by one judge pursuant
to § 752.31(2)(f), Stats. "We" and "our" refer to
the court.
[3] Belton has been sharply
criticized, both by courts and commentators.
In Robbins v. California, 453 U.S. 420, 449 (1981), overruled
by United States v. Ross, 456 U.S. 798 (1982), Justice
Stevens criticized the Court's decision as an "extraordinarily dangerous
detour" from Fourth Amendment principles.
(Stevens, J., dissenting.)
Several states have declined to follow Belton. In People v. Torres, 543
N.E.2d 61 (N.Y. 1973), the court observed that "search and seizure law
[becomes] uncontrollable when the rubric [is] adopted and the rationale
discarded." Id. at
64 (quoting People v. Brosnan, 298 N.E.2d 78, 86 (N.Y. 1973)
(Wachter, J., dissenting)) (alterations in original). The court found that article I, § 12 of the state
constitution provided greater protection from searches and seizures than did
the Fourth Amendment to the United States Constitution, as construed in Belton. See also State v. Stroud,
720 P.2d 436, 439 (Wash. 1986). Professor
LaFave criticizes Belton as follows:
On balance ... there is good reason to be critical of the
Court's work in Belton.
How long it will survive, and in what form, remains to be seen. The author of Belton has
retired, and the continuing members of the Court are equally divided on the
question discussed here. Perhaps more
important, however, is the fact that the Court in Belton appears
to have been influenced by other, related problems as to which it could not
reach a consensus in the companion case of [Robbins]. Should those problems later be resolved, the
search incident to arrest situation will look quite different than it appeared
to the Belton majority, in which event the rule of that case may
well be abandoned.
3 Wayne R. LaFave, Search and
Seizure § 7.1, at 140 (Supp.
1982) (quoted in State v. Hernandez, 410 So.2d 1381, 1385 (La.
1982)). The dissent in State v.
Fry, 131 Wis.2d 153, 187 & n.2, 388 N.W.2d 565, 580, cert.
denied, 479 U.S. 989 (1986), criticizes Belton as well. (Bablitch, J., dissenting.)
[4] The Court further held: "[I]t follows from this conclusion that
the police may also examine the contents of any containers found within the
passenger compartment, for if the passenger compartment is within reach of the
arrestee, so also will containers in it be within his reach." Belton, 453 U.S. at 460. Belton makes clear that the
fact the evidence is held in a separate container within the automobile is
irrelevant. Accord Fry,
131 Wis.2d at 178, 388 N.W.2d at 576 ("We conclude that all closed
containers, locked or unlocked, in an automobile which may be searched incident
to an arrest can be searched."); see also California v.
Acevedo, 500 U.S. 565 (1991); United States v. Ross, 456
U.S. 798 (1982).