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State v. Little A. Stewart, 2011 WI App 152

court of appeals decision (recommended for publication); for Little: Jeffrey W. Jensen; case activity

Probable Cause to Arrest 

¶14      In Stewart’s case, the pertinent facts are:

•           On March 10, 2009, a reliable confidential informant told Agent Gray that one of the people who had been arrested with Alderman McGee was going to be bringing cocaine to Milwaukee.  After Gray obtained the names and photographs of individuals who had been arrested in Alderman McGee’s case and showed them to the informant, the informant identified Stewart.

•           The informant told Gray that Stewart would be arriving at Mitchell Airport at about 11:30 p.m. on a flight from Las Vegas and that the flight was running a little late.

•           Agent Gray verified that there was in fact a flight from Las Vegas scheduled to arrive at Mitchell Airport at 11:30 p.m. that night, and also confirmed that Stewart was on the flight.

•           Around midnight, Agent Gray saw Stewart in the terminal area taking the escalator down to the baggage claim.  Shortly thereafter, Stewart emerged carrying a small white plastic bag, which according Gray—who had extensive experience in drug arrests—could have held thirteen and a half ounces of cocaine.

•           As police approached Stewart, he made a “furtive movement,” tossed the bag into the trunk, and then took a step away from the trunk.

¶15      In light of the foregoing facts, we conclude that police had probable cause to arrest Stewart. …

State v. Romero, 2009 WI 32, 317 Wis. 2d 12, 765 N.W.2d 756, “which held that information from a person unknown to police, when relayed via a confidential informant, can form the basis for the probable cause required to obtain a search warrant, controls the instant case,” ¶16. The court also stresses that the police corroborated at least some of the information from the unknown individual (Stewart arrived on the flight indicated by the person), and the person made statements against penal interest, ¶19. The point of contention on appeal seems to be whether the Romero (search warrant) analysis applies to warrantless arrest, and the court says, “the issue is the same – whether there was probable cause,” ¶21.

Automobile Search 

Search of a car trunk, into which Stewart threw a bag with suspected cocaine, immediately before his arrest, could be accomplished without a warrant, as incident to that arrest.

¶25      We conclude that, under the particular circumstances of this case, the search of the trunk was reasonable because police did have reason to believe that cocaine was inside.  See Gant, 129 S. Ct. at 1719; Dearborn, 327 Wis. 2d 252, ¶27.  As noted above, Stewart arrived at Mitchell Airport via a flight from Las Vegas, just as Agent Gray’s confidential informant said he would.  Further corroborating the informant’s information, Stewart exited the airport carrying a white plastic bag that, according to Gray’s experience, could have held thirteen and a half ounces of cocaine.  Additionally, when approached by police, Stewart tossed the bag into the trunk.  Given that police actually saw him throw the bag into the trunk, and given that Stewart’s movements corroborated the informant’s information so precisely, they had every reason to believe that cocaine would be in the trunk.

¶26      While Stewart analogizes his case to United States v. Most, 876 F.2d 191, 192-93 (D.C. Cir. 1989), in which police searched a gym bag that the defendant had checked at the front of a store without a warrant, that case is inapposite because prior to searching the bag, police never had probable cause to believe that the defendant had committed a crime, see id. at 196.  Moreover, we note that Most is a federal case from the D.C. Circuit, and is therefore not binding on this court.  See State v. Muckerheide, 2007 WI 5, ¶37, 298 Wis. 2d 553, 725 N.W.2d 930.  Stewart’s case is instead much more akin to Smiter, in which a police search of a car following a drug arrest was lawful under the Fourth Amendment.  See id., 331 Wis. 2d 431, ¶¶3-4, 8, 18 (finding probable cause to search vehicle after police recovered marijuana blunt thrown from vehicle’s front window and placed occupant under arrest).

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