State v. Mose B. Coffee, 2020 WI 53, 6/5/20, affirming a published court of appeals decision, 2018AP1209; case activity (including briefs)
Under Arizona v. Gant, 556 U.S. 332, 335 (2009), police can search a vehicle after arresting a recent occupant “when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.” But how do courts decide when it’s “reasonable to believe” this: is it a typical totality-of-the-circumstances analysis examining all the facts around an arrest? Or, as many courts have concluded, do the elements of the crime suspected–the “offense of arrest”–determine categorically when a search is permitted and when it isn’t? A majority of justices in this case would adopt the former view, but, as we’ve often seen lately, their votes are split between the lead and dissenting opinions. This arguably means there’s no binding holding on the question of law; the only thing we know for sure is that the search in this case is upheld.
Hawley was pulled over and pretty quickly arrested for OWI. After he was secured in the squad car, officers on-scene began to search his car; they’d testify they were looking to anything that could have contributed to intoxication (though there was evidence only that he’d consumed alcohol). During this search they found a cloth bag behind the driver’s seat. They also searched the bag, which was full with various items; down at the bottom they saw a couple of mason jars they thought contained “flakes” of marijuana. Based on this, they searched the trunk, where they found a great deal more weed.
Hawley moved to suppress the marijuana on the ground that they search of his bag–a link in the evidentiary chain that led to probable cause for the trunk–was illegal. He lost, entered a plea deal, and appealed.
The court of appeals held that
[A]s a matter of law . . . when an officer lawfully arrests a driver for OWI, even if alcohol is the only substance detected in relation to the driver, a search of the interior of the vehicle, including any containers therein, is lawful because it is reasonable to believe evidence relevant to the offense of OWI might be found.
(¶17). This reflects an application of the “categorical” approach to Gant, in which a court looks only to the elements of the offense of arrest to determine whether there’s likely to be evidence of that offense in the car. So in the court of appeals’ view, an arrest for OWI always justifies a car search, no matter what other circumstances are or are not present. In this analysis, every statutory crime in the universe is either in the “always search” or the “never search” category. This approach–though it’s been widely adopted, based on some language in Gant and other SCOTUS cases–has problems:
Some offenses are not easily categorized, which makes the categorical approach analytically difficult. “[A]ny attempt to categorize every criminal offense as being either one that might yield physical evidence or one for which there is no physical evidence runs into interpretative problems.” Reagan, 713 F. Supp. 2d at 732.
For example, a driver could be arrested for making criminal threats. Evans, 133 Cal. Rptr. 3d at 336. “If the threat in question was verbal, it is surely unreasonable to expect evidence related to the crime to be contained in a vehicle.” Id. “But if the threat was made in a text message, or amplified by means of props or a threatening drawing, evidence might well be found in the car.” Id.
…. To summarize, a problem with the categorical approach is that “some offenses of arrest cannot be meaningfully evaluated without reference to the specific facts known to the officer.” Id. The point of adopting a bright-line rule is to provide definitive guidance; if that is not being accomplished, a bright-line rule serves no useful purpose.
(¶¶43-45). For this and other reasons, the two-justice lead opinion (Roggensack, joined by Ziegler) rejects the categorical approach in favor of a more typical rubric, in which a court considers all the facts known to the officer (including, of course, the crime of arrest) to decide whether there was reason to believe the arrestee’s vehicle would contain evidence. It goes on to say that the level of suspicion described by the phrase “reason to believe” is the same level required to find “reasonable suspicion” for a Terry stop. (¶51). Applying this test, the court finds various factors surrounding Coffee’s arrest supplied the necessary reason to think his car–and specifically the backpack within the car–contained evidence of his intoxication.
But, that’s just two justices, of the five who decided this case (Hagedorn and A.W. Bradley sat it out). Two other justices (Dallet and R.G. Bradley) dissent–they agree with the lead’s formulation of the test, but just think the facts in this case don’t add up to “reason to believe” the car (or the bag) contained evidence of OWI. And one justice, Kelly, concurs to say that the other four are wrong, and the categorical analysis is the correct one.
So, friends, what’s the law in Wisconsin? Your guess is as good as ours. As we’ve had multiple occasions to point out, there’s language in State v. Griep, 2015 WI 40, ¶37 n.16, 361 Wis. 2d 657, 863 N.W.2d 567, suggesting (though not outright saying) that the dissenting justices’ views on the law doesn’t “count” in trying to figure out what the majority position is. If that’s the case, then we’ve got two justices saying “totality of the circumstances” and one saying “categorical,” and thus no majority for any proposition and no binding holding.
But the court of appeals’ decision below is published, and now it’s been affirmed. So is it still binding? That court didn’t discuss the difference between the categorical and totality-of-the-circumstances analysis, but it certainly did apply a categorical analysis. Now 4 of 5 supreme court justices have rejected that analysis, but in a way that (again, arguably) does not create precedent. We welcome your answers in the comments: what’s the analysis in Wisconsin?
Split decisions are a problem. However, if a plurality decision is inconvenient to one’s position, one can argue it need not be followed simply because it is not an opinion of a majority. This course was following in at least one decision of the Court of Appeals, State v. King, 205 Wis.2d 81, 88, 555 N.W.2d 189 (1996):
“We decline King’s invitation to reverse his conviction based on [Virgil v. State, 84 Wis.2d 166, 267 N.W.2d 852 (1978)]. First, the opinion in Virgil was a plurality opinion, not a majority opinion. Chief Justice Beilfuss concurred, and Justices Hansen, Hanley and Callow dissented. The concurrence did not follow the plurality’s analysis, however.”