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Search-Incident: Automobile; Sufficiency of Evidence: Manufacturing THC

State v. Timothy Charles Bauer, 2010 WI App 93; for Bauer: Catherine M. Canright; BiC; Resp.; Reply

Search-Incident – Automobile

By failing to address Bauer’s Arizona v. Gant argument, instead relying solely on State v. Fry, 131 Wis. 2d 153, 174, 388 N.W.2d 565 (1986), the States’ argument compels the court to reverse the suppression order:

¶9 Here, the circuit court denied Bauer’s suppression motion because it concluded the evidence recovered from his vehicle was obtained pursuant to a valid search incident to arrest. The court did not, however, have the benefit of considering Gant, which was decided roughly a year after the court denied Bauer’s pretrial motion. Regardless, whether a search is reasonable is a question of constitutional fact, which we determine independent of the trial court’s conclusion. State v. Griffin, 131 Wis. 2d 41, 62, 388 N.W.2d 535 (1986), aff’d, 483 U.S. 868 (1987). Bauer argues that per Gant, the search of his vehicle incident to arrest was unreasonable because he was already in custody and handcuffed, away from his vehicle’s passenger compartment, when the search commenced. We are inclined to agree.

¶10 We need not, however, resolve the issue. …

¶11 In light of the Gant decision, the broad rule adopted in Fry, 131 Wis. 2d at 174-75, is no longer good law, much less “black-letter law.” “Belton does not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle.” Gant, 129 S. Ct. at 1714. While citizens may be afforded greater protections under the Wisconsin Constitution, they may not be afforded less; they are always entitled to the minimum protections afforded by the Fourth Amendment to the United States Constitution, as interpreted by the United States Supreme Court. See State v. Knapp, 2005 WI 127, ¶59, 285 Wis. 2d 86, 700 N.W.2d 899; State ex rel. La Follette v. Raskin, 30 Wis. 2d 39, 49-50, 139 N.W.2d 667.  We are perplexed that the State still relies on Fry despite Bauer’s reliance on Gant.[3] We deem the State’s failure to respond to Bauer’s Gant argument as a concession. See State v. Flynn, 190 Wis. 2d 31, 39 n.2, 527 N.W.2d 343 (Ct. App. 1994) (“We will not decide issues that are not, or inadequately, briefed.”); Charolais Breeding Ranches, Ltd. v. FPC Secs. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (unrefuted arguments are deemed conceded).

Stress the following point: the decision is “procedural,” which is to say, premised on inadequate argumentation by the State and carries not much if at all more weight than that.

Manufacturing THC – Sufficiency of Evidence

¶18 The jury heard that Bauer’s vehicle contained pruning clippers with green residue on them (but no detectable THC), some marijuana particles on the floor, and a key to the padlock on Wells’ hidden marijuana growing operation. Bauer admitted being in Wells’ home. The jury also learned that when Bauer was arrested, he told police marijuana plants “were beautiful plants, that God put them on the earth.” We conclude there was ample evidence on which the jury could rely to convict Bauer, especially given his possession of the padlock key directly tying him to the concealed growing operation.

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