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COA approves search of vial incident to arrest for shoplifting

State C. Catti J. Meisenhelder, 2021AP708-CR, 6/15/22, District 2 (recommended for publication); case activity (including briefs)

Meisenhelder was busted for shoplifting mouthwash and eyeliner at a Walmart. When police searched her purse they spotted a keychain that had a small, purple vial attached to it. They looked inside, found what looked like meth, and arrested her. She moved to suppress arguing that the search was unlawful under State v. Sutton, 2012 WI App 7, 338 Wis. 2d 338, 8080 N.W.2d 411 (2011). The circuit court denied the motion. In a decision recommended for publication, the court of appeals affirmed.

Let’s start with Sutton. Police stopped him for failure to wear a seatbelt.  They saw his car make rocking motions which suggested that Sutton might be trying to retrieve or hide weapons. So they conducted a protective sweep of his car and found two cylindrical, opaque vials in the map pocket. The vials contained Ecstasy pills. The court of appeals approved the search of the car because police needed to make sure there were no weapons in it.

But the court of appeals held that the search of the vials violated the 4th Amendment. The vials were too small to hold a weapon, and police did not have probable cause to believe there was a connection between the vials and criminal activity.

In contrast, the court of appeals held that Sutton does not control Meisenhelder’s case because Sutton did not involve a search incident to arrest. Police had probable cause to arrest Meisenhelder for retail theft.  They could therefore search both her person and her purse, which was within her reach and used to commit the theft under Chimel v. California, 395 U.S. 752, 762-63 (1969) and State v. Sykes, 2005 WI 48, ¶¶14, 21, 279 Wis. 2d 742, 695 N.W.2d 277. Opinion, ¶16.

The court of appeals also noted that even though the vial or canister on Meisenhelder’s keychain was only the size of a 12-gauge shotgun shell it could have contained additional small stolen merchandise. Opinion, ¶17.

On the subject of searching small containers, Meisenhelder’s case sounds a bit like State v. Hinderman, No. 2014AP1787-CR (Wis. Ct. App. Feb. 12, 2015)(unpublished). Police arrested Hinderman for OWI and searched her car where they found a 3-inch pouch that contained marijuana and drug paraphernalia. The State argued that when officers arrest a person for OWI they may search the containers in the vehicle for evidence of intoxicants pursuant to Arizona v. Gant, 556 U.S. 332 (2009). But the circuit court granted suppression and the court of appeals affirmed because the pouch was too small to contain any alcohol other than a one-shot alcohol bottle–the kind served on passenger jets.  See our post on Hinderman. The crime of arrest and the size of the container matter.

Meisenhelder’s case did not involve an OWI. However, having cited Hinderman it’s worth mentioning one more thing. SCOW recently granted review on the question of whether an arrest for OWI authorizes an officer to search the passenger area of a car and containers like a bag or purse there.  SCOW issued a splintered decision (i.e. no majority) so we don’t have a clear answer. See our post on State v. Coffee.  Coffee declined to decide whether Hinderman was correct or incorrect. A.W. Bradley and Hagedorn did not participate in the decision. So this is an issue in search of a petition for review.

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