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Arrest — Search Incident to Arrest — Automobile Passenger’s Property Incident to Arrest of Driver

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. (“An occupant, no less than an arrestee, can pose a danger to officer safety, see Robinson, 414 U.S. at 228, and a passenger, no less than an arrestee, can seize weapons or objects to assault an officer or effect an escape.”) ¶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. (But the cited portion ofRobinson is simply irrelevant to, and therefore does not support, the cited principle. For authority, albeit without much analysis, to effect that frisk of passenger following driver’s arrest requires Terry analysis, see People v. Staple, Ill. App. 4th Dist. No. 4-02-0272, 1/15/04.)

The leading case on search of a car incident to arrest of an occupant is New York v. Belton, 453 U.S. 454 (1981), and Pallone certainly relies heavily on that case (¶¶31-42). Belton has given rise to a great of litigation, such that generalization might be unwise, but for a very succinct summary, see U.S. v. Barnes, 8th Cir. No. 03-2501, 7/6/04: “The organizing principle of these cases, with which we agree, is that areas reachable by an occupant without exiting the automobile may be searched incident to arrest, but an area that is outside any occupant’s reach or that could be reached only through an elaborate dismantling of the vehicle may not be searched.”

In what is surely dicta (though not acknowledged as such), Pallone 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 duffel bag “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.

(The U.S. Supreme Court subsequently upheld the state’s authority to arrest for violation of a mere forfeiture offense. Atwater v. Lago Vista, 532 U.S. 318 (2001).)


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