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COA affirms search; disregards “breadcrumb” theory

State v. Ashley Rae Baker, 2022AP1587-CR, District II, 1-judge decision, ineligible for publication; case activity (including briefs)

The Fourth Amendment protects against guilt by association by requiring probable cause to arrest or search to be specifically linked to the individual defendant. See State v. Riddle, 192 Wis. 2d 470, 478, 531 N.W.2d 408 (Ct. App. 1995) (citing United States v. Di Re, 332 U.S. 581, 593 (1948). That probable cause exists to arrest one vehicle occupant does not mean probable cause exists to arrest another.

Here, Baker was the passenger in a vehicle subject to a pretextual traffic stop after an officer observed the vehicle near two suspected drug houses. While an officer questioned the driver, Baker exited the vehicle with her purse. Baker was never questioned and the officer testified that she exhibited no suspicious behavior. A K-9 unit eventually alerted on the driver’s vehicle and the driver admitted that he had half a gram of marijuana in the vehicle and a blunt in his pocket. A search of the vehicle yielded the marijuana, a grinder, and shake throughout the vehicle, but not specifically where Baker was seated as the passenger. The driver accepted responsibility for everything.

Meanwhile, Baker stood outside the vehicle with her purse. After the driver was taken into custody, the officer shifted his focus to Baker and had her place her purse on the trunk of the vehicle and, without asking for consent or any investigatory questions, opened her purse and found a firearm. The officer testified that he searched the purse out of a concern for “the potential for any concealment of other items,” saying that “any time that someone gives us a breadcrumb” it could be “to deter finding the loaf of bread.” The circuit court reasoned that this “great line” was the “answer” to this “close case.” (Op., ¶6).

Smartly (and conveniently), the court of appeals disregards the circuit court’s breadcrumb commentary and relies on the totality of the circumstances to affirm the circuit court’s finding of probable cause to arrest (and therefore search) Baker for possession of marijuana. Since the driver accepted responsibility for the marijuana and paraphrernalia, however, Baker was only charged with and pled guolty to carryling a concealed weapon without a permit.



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