On Point

State v. Jordan A. Denk, 2008 WI 130, on certification
For Denk: Lora B. Cerone, SPD, Madison Appellate

Issue: Whether the police may search, incident to the arrest of the driver, a passenger’s personal belongings (in this instance: an eyeglass case) found outside the vehicle.

Holding:

¶56      The record indicates that Officer Hahn was concerned about the possible threat posed by Denk as well. In a situation where two men were alone in a car permeated with the smell of burning marijuana, it is reasonable for an officer to be concerned that Denk could attempt to assist Pickering, either by endangering the officer or by concealing evidence of his friend’s crime. ^[10]

¶57      Officer Hahn’s suspicions were further aroused when he arrived at the passenger side of the car. There, he noticed a hard, opaque container large enough to conceal a small weapon or further evidence related to the possession or distribution of narcotics. The eyeglass case was positioned on the ground, just underneath the car and accessible from the passenger seat. The very presence of the container on the ground, in that spot, was suspicious.

…

¶61      We determine that the warrantless search here was incident to the arrest and was supported by both of the historical rationales at the heart of that exception, namely the safety of the arresting officer and the need to discover and preserve evidence. In this situation, Office Hahn was outnumbered at a late night arrest involving two men and knew that narcotics were present. The proximity of the eyeglass case to the car, to Denk, and to Pickering, as well as its unexplained location at Denk’s feet, raised questions about the danger Denk posed acting alone or in concert with Pickering. Thus, we conclude that based on the reasoning in State v. Pallone, the search of the eyeglass case was a permissible search incident to the arrest of the driver of the vehicle.

¶62      Lest our discussion be misconstrued, we reiterate the bright-line rule that unarrested passengers cannot themselves be searched based solely on the arrest of the driver. ^[11] In order to search the body of a passenger, the arresting officer must have individualized cause to justify the search. For example, “protective frisks are justified when an officer has a reasonable suspicion that a suspect may be armed. The reasonable suspicion must be based upon specific and articulable facts, which, taken together with any rational inferences that may be drawn from those facts, must establish that the intrusion was reasonable.” State v. McGill, 2000 WI 38, ¶22, 234 Wis.  2d 560, 609 N.W.2d 795 (citations and quotations omitted).

In a sense, the court’s expression is backward: it’s not so much that there is a bright-line rule, but that there isn’t: to uphold the search of a passenger incident to arrest of the driver, the police must have “individualized cause,” determined case-by-case same as a Terry-type frisk. And such cause was abundant, the car exuding the smell of marijuana, ¶9, among other things. Although the court doesn’t go so far as to say (and it’s certainly not clear the particular facts would have supported the result), at least in some instances the odor of burning marijuana may itself justify PC-based search of a passenger, State v. Mitchell, 167 Wis. 2d 672, 482 N.W.2d 364 (1992). In any event, the odor alone certainly providedprobable cause to search the car—and, under Pallone, passenger property within it. Of course, in this instance the property was found outside the car, but the court links it closely to the car, ¶¶51-52, and thus this distinction becomes in effect a mere detail. But none of this background should obscure the idea that search of passenger property must be supported by individualized cause, whether found inside or out of the car. (Is something like “reasonable suspicion” required? The court doesn’t quite say, but arguably so.)

State v. Jermichael James Carroll, 2008 WI App 161, affirmed, other grounds, 2010 WI 8
For Carroll: Michael K. Gould, SPD, Milwaukee Appellate

Issue/Holding: The police may, incident to lawful arrest for drug use, answer an incoming call on the arrestee’s cell phone, ¶¶27-29.

Note that supreme court affirmed on different grounds, namely the exigent-circumstances need to preserve evidence that would otherwise be lost if the call weren’t answered. The rationale assumes, of course, lawful seizure of the cell phone.

State v. Jermichael James Carroll, 2008 WI App 161, affirmed on other grounds, 2010 WI 8
For Carroll: Michael K. Gould, SPD, Milwaukee Appellate

Issue/Holding:

¶26      While a person is not necessarily under arrest just because the officers display their weapons and place the individual in a squad car, those facts can support a determination that an arrest occurred. In this case, the most pertinent facts that lead us to conclude that Carroll was under arrest include:

• Carroll was driving with a suspended license and the police learned of his status shortly after he stopped the car;
• Carroll led Belsha on a high-speed chase that reached speeds of up to sixty miles per hour in a residential zone;
• Carroll pulled into a gas station and stopped his car abruptly;
• Carroll immediately exited the vehicle;
• Belsha pointed his gun at Carroll and “ordered him to drop what was in his hand and get down on the ground”;
• Carroll dropped the object, was handcuffed and remained on the ground while Belsha retrieved the cell phone and asked Carroll for identification, which Carroll could not provide;
• An unknown number of police squads arrived on the scene; and
• Carroll was placed in the back of Belsha’s vehicle, still handcuffed.

We conclude that at this point, a reasonable person in Carroll’s position would have considered himself to be “in custody,” given the degree of restraint under the circumstances.  See Swanson, 164 Wis. 2d at 446-47. The facts that one may not generally be arrested for speeding and that there is no evidence Carroll was told he was under arrest do not dissuade us from this conclusion because of the substantial show of force and physical restraint present in this case. See id.(objective test to determine if person has been arrested considers officer’s communications by words and actions).

That the supreme court affirmed on different grounds, without having to find occurrence of an arrest doesn’t mean that the court of appeals’ holding on this point loses precedential impact; hence, the following discussion.

After a high-speed chase, the cop trained a gun on Carroll, handcuffed and frisked him (and apparently—the opinion isn’t explicit on the point—put him in the squad car). Of course it was an “arrest”; what else could it possibly be? Funny you should ask. Turns out that “we have over the years ‘witnessed a multifaceted expansion of Terry . . . For better or for worse, the trend has led to the permitting of the use of handcuffs, the placing of weapons and other measures of force more traditionally associated with arrest than with investigatory detention.’ … ‘Unfortunately, the line between a lawful Terry stop and an unlawful arrest is not bright.’” U.S. v. Vega, 72 F.3d 507, 515 (7th Cir. 1995). “Unfortunately” is one way of putting it. “Conveniently” is another.Search/seizure taxonomy very much matters: obviously, if Carroll’s detention is deemed aTerry stop, then a search-incident rationale isn’t available to justify the seized evidence. The flip side, though, is that in any given case the police may have reasonable suspicion but lack probable cause, so an “arrest” wouldn’t be supportable. And so (“unfortunately” or “conveniently” depending on your perspective), the trend is to make the border between arrest and “temporary” stop wondrously elastic. Flowers v. Fiore, 359 F.3d 24 (1st Cir. 2004) (no arrest despite handcuffing and placing in squad, given that suspect neither “relocated” nor read Miranda rights); U.S. v. Stewart, 388 F3d 1079 (7th Cir. 2004) (“The permissible scope of a Terry stop has expanded in recent years to include the use of handcuffs and temporary detentions in squad cars”); U.S. v. Jacob, 377 F.3d 573  (6th Cir. 2004) (investigatory stop didn’t ripen into arrest despite suspect’s being ordered out of his car, handcuffed, and placed in squad car). You get the drift. In those sorts of cases, the defendant wants the detention to be an arrest and the government doesn’t; Carroll wants his to be a Terry stop. Guess who wins.

There’s at least another side to the problem: if the detention is considered tantamount to arrest, then the person under detention is entitled to Miranda warnings. Not relevant to Carroll’s particular situation, but one the practitioner must be sensitive to—the holding in this case can be used in support of a Miranda argument for a similarly detained suspect. See generally, State v. Zan Morgan, 2002 WI App 124, and State v. Gruen, 218 Wis. 2d 581, 594, 582 N.W.2d 728 (Ct. App. 1998). And sensitive as well to the idea that a Terry stop isnot inconsistent with triggering Miranda rights, Morgan (¶16), so that a court’s disinclination to label a given detention tantamount to arrest isn’t determinative. The point is made fairly forcefully by U.S. v. Newton, 369 F.3d 659 (2nd Cir. 2004) (handcuffing of suspect may have been reasonable under 4^th amendment but for Miranda purposes established “custody”). For recent discussion of caselaw split on question of when Terry-stop becomes sufficiently coercive to require Miranda warnings, see cert petition in New Mexico v. Snell, 08-196; lower court opinion: here.

How or even whether these doctrinal tensions get resolved remains to be seen, but it’s hard to see how Carroll helps.

State v. Jermichael James Carroll, 2008 WI App 161, affirmed on other grounds, 2010 WI 8
For Carroll: Michael K. Gould, SPD, Milwaukee Appellate

Issue/Holding:  Continued possession of Carroll’s cell phone justified, though Carroll not in custody. Expectation of privacy in cell phone analogous to that attending “closed container” such as luggage, as to which detention of container must be supported by probable cause to believe it contains evidence of crime and by exigent circumstances, ¶¶25-27

¶29      Here, Belsha legally viewed the marijuana image; we consider that fact along with his testimony that he knew, based on his training and experience, that drug traffickers frequently personalize their cell phones with images of themselves with items acquired through drug activity. Furthermore, it is those personalized cell phones on which drug traffickers commonly make many of their transactions. Carroll did not introduce evidence suggesting that Belsha’s testimony in that regard was inaccurate or not credible, and we see no reason to discount it. We are satisfied, under all of the circumstances here, that that information, taken as a whole, gave Belsha probable cause to believe that the phone contained evidence of illegal drug activity.

…

¶32      Given that Belsha had probable cause to believe that a search of the phone would produce evidence of illegal drug activity, his continued possession of the phone while he sought a warrant was permissible. The same reasons that permitted Belsha to seize the phone in the first instance permitted him to continue to possess it in the short time after Carroll was secured. Exigent circumstances further justify that continued possession. Had Belsha returned the phone to Carroll and released him, Carroll could have deleted incriminating images and data, such as phone numbers and calling records stored in the phone. Hence, Belsha’s continued possession of the phone was permissible.

State v. Eric Dwayne Rogers, 2008 WI App 176, PFR filed 12/12/08
For Rogers: Mark D. Richards

Issue/Holding: Although warrantless entry of and remaining in a home while a warrant was prepared was illegal, the warrant wasn’t based on any information turned up by this illegality and evidence seized during its execution was therefore admissible:

¶21      Still, “evidence is not to be excluded if the connection between the illegal police conduct and the discovery and seizure of the evidence is ‘so attenuated as to dissipate the taint.’” Segura v. United States, 468 U.S. 796, 805 (1984) (citation omitted); see State v. Simmons, 220 Wis. 2d 775, 780, 585 N.W.2d 165 (Ct. App. 1998). Three factors are relevant to our inquiry: (1) the temporal proximity of the unlawful entry to the search, (2) the presence of intervening circumstances, and (3) the purpose and flagrancy of the official misconduct. See State v. Walker, 154 Wis. 2d 158, 187-88, 453 N.W.2d 127 (1990). Importantly for this case, when the police have an “independent source” for their discovery, such as a warrant based on wholly unconnected information, the evidence seized is not to be excluded. Segura, 468 U.S. at 805, 814.

¶22       Based on the circumstances of the entire evening, the State has met all three factors. The officers’ good police work and prior drug seizure led them to apply for an additional search warrant based on that contraband. Then the officers waited two hours to search the residence with a valid warrant, albeit while waiting inside watching television. True, they did also perform a protective sweep, but they did not base their search or warrant on the unlawful entry or protective sweep. Instead, the officers obtained the search warrant for Rogers’ residence based entirely on an independent source—their prior search and seizure of Rogers’ car and person. Thus, the search of Rogers’ residence was sufficiently attenuated from the unlawful entry to permit the search and seizure of evidence of unlawful drug dealing. Had the search been conducted as a result of the illegal entry or had the protective sweep been just a pretext for a search for contraband, or had the police used information from the illegal entry to obtain the search warrant, this would be a different case.

State v. Jordan A. Denk, 2008 WI 130, on certification
For Denk: Lora B. Cerone, SPD, Madison Appellate

Issue/Holding: ¶20 n. 4:

… While Pickering could consent to a search of the vehicle, he could not consent to a search of his passenger. See State v. Matejka, 2001 WI 5, 241 Wis.  2d 52, 621 N.W.2d 891 (driver’s consent to search of a car extended to passenger items in the car, but not to passengers). Further, the record does not support a finding that Denk consented to the search. Merely placing a container in view of an officer does not constitute consent to search it.

Matejka confers authority on a driver to consent to search of a passenger’s property in the car (notwithstanding acknowledged significant split of authority, ¶18 n. 3); the passage quoted immediately above makes clear that this authority doesn’t extend to search of a passenger’s person – a point that is probably self-evident anyway.

State v. Eric Dwayne Rogers, 2008 WI App 176, PFR filed 12/12/08
For Rogers: Mark D. Richards

Issue/Holding: Warrantless entry of Rogers’ home, following seizure of contraband from his car, was unlawful:

¶19      In this case, the police entered Rogers’ residence after seizing contraband from his car and person and then seeing Rogers’ brother and others at the scene talking on their phones. This triggered the officers’ entry into Rogers’ residence, upon the silence of Rogers’ elderly mother, and their protective sweep of the residence. The officers did not find or seize any contraband during their protective sweep. Still, they remained in the residence for two more hours, monitoring the inhabitants’ movements, but not otherwise searching the residence. Then, after the warrant arrived, the officers searched Rogers’ residence and seized contraband.

¶20      We hold that the initial entry and protective sweep of Rogers’ residence was an unlawful, warrantless entry because no exigent circumstances were present.^[5] The officers’ hunch, after seeing Rogers’ brother and others on their cell phones, that someone would destroy evidence at Rogers’ residence was just that—a guess that someone might be calling Rogers’ home. The officers actually had no idea who Rogers’ brother or the other persons were calling, and probably to this day, do not know for sure who they were calling. Nonetheless, the officers figured that one of them might be calling the residence, that more drugs might be located in that residence and that they better get over to the residence and secure it before the drugs disappeared. This is not enough information to qualify as exigent circumstances. To constitute exigent circumstances, the officers would have needed knowledge that someone would in fact destroy evidence at a specific place. They would have had to actually overhear one of those phone calls, and hear that one or more of them was attempting to get to Rogers’ residence before the police or was directing someone to destroy evidence at that residence. Entering Rogers’ residence based on just that guess, after confronting an elderly woman who needs oxygen and uses a walker, and seeing no other person in the residence, was not warranted. The officers could have used a less intrusive method by controlling who entered and exited the residence without actually entering and remaining in the residence. See Illinois v. McArthur, 531 U.S. 326, 336 (2001).

The police, however, didn’t seize anything at this time but, rather, simply stayed in the house for 2 hours while a search warrant was prepared based on information not related to the entry. Ah, you’re probably wondering, just how did they while away the time during this brief sojourn? “The officers proceeded to wait inside the residence and watch their television show for about two hours,” ¶6? Their show? “Cops”? “Dog, The Bounty Hunter”? We’ll never know. In any event, seizure of evidence during execution of that warrant was, the court separately holds, sufficiently disconnected from the illegal entry to be admissible.