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State v. Kyle J. Graske, 2009AP1933-CR, District II, 3/24/2010

court of appeals decision (1-judge; not for publication); BiC; Resp. Br.; Reply Br.

Miranda – Suppressed Statement and Probable Cause

¶7        First, we will address the State’s argument that Kohel’s statement “[w]e just smoked an hour ago” was voluntary and should not be suppressed. The trial court found, and we agree, that Kohel’s statement was the result of a custodial interrogation and should be suppressed. The passenger was handcuffed, told he was under arrest for a warrant, and placed in the backseat of a squad car before the deputy point-blank asked “[W]here is the odor of burnt marijuana coming from?” The question can only be construed to be one of gathering further evidence in support of a crime that the officer believed had occurred—and not an investigation of whether a crime has occurred. A statement made during a custodial interrogation, such as in this case, cannot be considered voluntary and admissible until Miranda warnings have necessarily been waived.3 See Miranda v. Arizona, 384 U.S. 436, 476 (1966). Kohel was not given an opportunity to waive his Miranda rights because the deputy never Mirandized him. See id. So we agree with the trial court that the passenger’s statement cannot be considered “voluntary” and is not admissible.

The court goes on to say, ¶8: a) odor of marijuana in a car provides probable cause to arrest if linked to a specific person; b) linkage to the specific person at hand—Garske—turns on Kohle’s statement described above; c) but, because that statement was suppressible, no such linkage exists and therefore “the odor was insufficient to establish probable cause for his arrest.

Traffic Stop – Marijuana Odor and Probable Cause
Probable cause to arrest Garske not supported by his connection to backpack found containing contraband, found in car:

¶12      The trial court found, and we agree, that there was not enough evidence connecting Graske to the backpack to support a finding of possession. The trial court properly considered Graske’s checkbook in the backpack as a factor to determine possession of the backpack. But the backpack was on the floorboard of the front passenger’s seat in a vehicle that was not owned by Graske. And even though a person can constructively possess an object when it is in near proximity when there is no actual dominion and control, the trial court was obviously convinced that Graske did not. The court concluded that it would have been difficult for the backpack to be “immediately accessible” to Graske from where he was sitting since the backpack was sitting next to or underneath Kohel. Just the fact that Graske was in the same vehicle where the backpack was found does not by itself mean that he had dominion and control over the backpack. Whether an investigatory stop meets the constitutional and statutory standards is a question of law that we review de novo. State v. Krier, 165 Wis. 2d 673, 676, 478 N.W.2d 63 (Ct. App. 1991). When we review the factors that led to determinations of constructive possession in other Wisconsin cases, the universality of which is neatly compartmentalized in the Texas case cited in the footnote, Willis v. State, 192 S.W.3d 585, 593 (Tex. App. Ct. 2006), most of the factors that would be indicia of ownership are simply not present in our case. Under the specific facts of this case, there just was not enough.

A really interesting case. You’d think the question of linkage of a particular person to contraband would come up fairly frequently but it doesn’t, at least not terribly much in Wisconsin caselaw. The leading case, which deals with sufficiency of evidence not probable cause, remains State v. R.B., 108 Wis.2d 494, 497-98, 322 N.W.2d 502 (Ct. App. 1982) (“Unless actual control exists, there must be found from the surrounding facts and circumstances, aided by reasonable inferences, an intent to exercise control over the prohibited item. Without such a finding, there can be no constructive possession.”), which found that a juvenile’s mere presence to alcohol didn’t prove his possession of same. R.B. wasn’t cited here by the court or the parties but may have salience nonetheless on the problem. And even if it doesn’t, the conclusion of no probable cause surely would be support an insufficient-evidence claim on facts similar to Graske. Take a look as well at ¶11 n. 4, which lists a number of “nonexclusive factors to determine if there is a sufficient link between a defendant and contraband.”

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