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Exigency — Automobile Exception to Warrant Requirement

State v. Robert J. Pallone, 2000 WI 77, 236 Wis. 2d 162, 613 N.W.2d 568, affirming State v. Pallone, 228 Wis. 2d 272, 596 N.W.2d 882
For Pallone: Steven J. Watson

Issue: Whether the search of a vehicle passenger’s duffel bag, following the driver’s arrest for the forfeiture offense of having open intoxicants, was proper.

Holding: The search was justified as both incident to arrest and as based on probable cause.

Pallone was a passenger in a pickup truck that had open intoxicants. The officer didn’t like the way Pallone eyed his duffel bag, and he therefore searched it, turning up cocaine. The supreme court upholds the search, on two distinct bases, search incident to arrest, and probable cause (auto exception). Search-incident requires at the threshold an arrest in fact, not merely some likelihood that an arrest will occur. The trial court made an express finding on disputed facts that an arrest had occurred and the supreme court defers to that finding. ¶¶43-45. The search-incident rationale (in part, concern for safety of the police) applies equally to a non-arrested passenger. ¶47.

The other rationale (discovery of evidence) is also present here: the vehicle’s occupants might have concealed open bottles in the zippered duffel bag. ¶51. In what might be seen as dicta, the court proceeds to uphold the search under the distinct rationale of probable cause to search an automobile. Where the police have probable cause to conduct a warrantless search of a vehicle, they also may conduct a warrantless search of all containers in it capable of holding the object of the search. ¶64. Probable cause means “fair probability” the evidence will be found in a particular place. ¶74. Here, the officer had probable cause to look through the vehicle for additional bottles of open beer, and the duffelbag “had the capacity to hold additional open or closed bottles of beer,” making it fair game. ¶77.

The dissent expresses concern that “any violation of a civil state or municipal traffic law, no matter how minor, can result in a driver’s arrest and the search of every piece of luggage and any container in a car, no matter to whom it belongs and no matter whether there is any reason to believe such a container holds a weapon or evidence. …. The law relating to the scope of warrantless automobile searches has reached a shockingly low standard …,” ¶¶98-99, citing State v. Fry, 131 Wis. 2d 153, 388 N.W.2d 565 (1986), and State v. King, 142 Wis. 2d 207, 418 N.W.2d 11 (Ct. App. 1987), for the idea that mere civil infraction supports full-blown arrest.

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