State v. Tompkins

• Decision Date: 25 May 1988
• Docket Number: No. 86-0095-CR,86-0095-CR
• Citation: 423 N.W.2d 823,144 Wis.2d 116
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Henry L. TOMPKINS, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 823

423 N.W.2d 823

144 Wis.2d 116

STATE of Wisconsin, Plaintiff-Respondent, v. Henry L. TOMPKINS, Defendant-Appellant-Petitioner.

No. 86-0095-CR.

Supreme Court of Wisconsin.

Argued Oct. 7, 1987.

Decided May 25, 1988.

James A. Walrath, argued, and Shellow, Shellow & Glynn, S.C., on brief, Milwaukee, for defendant-appellant-petitioner.

Thomas J. Balistreri, Asst. Atty. Gen., with whom on the brief was Donald J. Hanaway, Atty. Gen., for plaintiff-respondent.

STEINMETZ, Justice.

This is an automobile search case taken upon a review of an unpublished decision of the court of appeals which affirmed Tompkins' conviction for possession of cocaine with the intent to deliver, entered by the circuit court for Fond du Lac county, Honorable Eugene F. McEssey, judge.

We find that under the facts, as a matter of law, there was probable cause to search the defendant's motor vehicle. We further hold that because the agents had probable cause to believe the automobile contained contraband, there was no need for a showing of exigent circumstances or a search warrant.

The defendant in this case is Henry L. Tompkins (Tompkins). He was charged with possession of cocaine with intent to deliver contrary to sec. 161.41(1m)(b), Stats. Tompkins filed a motion to suppress challenging the seizure of cocaine from the interior of a truck which he had driven on March 14, 1984. He also sought suppression of items seized from his wallet which agents took from him following his arrest. The trial court denied all of defendant's motions to suppress.

The defendant pleaded guilty and was sentenced to a term of five years in the Wisconsin State Prison. However, because the evidence supporting Tompkins' conviction was the subject of a motion to suppress, he appealed the suppression ruling and the subsequent judgment of conviction under sec. 971.31(10), Stats. See State v. Mordeszewski, 68 Wis.2d 649, 651, 229 N.W.2d 642 (1975).

The testimony at the suppression hearing showed that state agent John Mendoza (Mendoza) originally planned to purchase one-half pound of cocaine from David Lyons (Lyons) at the Holiday Inn on the outskirts of Fond du Lac on March 14, 1984. At 3:20 p.m. on that date Lyons telephoned Mendoza and reported that he was having trouble making connections with his source. It was this information and later information that led Mendoza to believe that the cocaine was being delivered that same day to Lyons from an outside source, rather than coming from a supply already in Lyons' possession.

During this same time period, other state agents witnessed Lyons and co-defendant Cleve Meyer drive to several Fond du Lac locations near the Holiday Inn, including the Forest Plaza Shopping Center, Forest Mall Shopping Center and Egger's Tavern. After stopping at various places, apparently in an effort to locate his source, Lyons finally rendezvoused with Tompkins at a shopping mall parking lot. Lyons left the car in which he was a passenger and entered a pick-up truck driven by Tompkins. He remained in Tompkins' truck for several minutes, returned to the car in which he had been a passenger, and went to the Holiday Inn, where he had agreed to meet agent Mendoza to deliver the cocaine.

Upon delivery of one-quarter pound of cocaine, Mendoza arrested Lyons. Lyons explained that his source had told him that he would deliver only one-quarter pound of cocaine at a time. There is no dispute that, at the time of the transfer to Lyons, the undelivered one-quarter pound of cocaine was either on Tompkins' person or in Tompkins' truck and that Lyons was told he could return for the balance after the delivery of the first quarter pound to his customer.

Upon the arrest of Lyons, the agents following Tompkins' pick-up truck were directed to arrest Tompkins. After Tompkins delivered the cocaine to Lyons in the mall parking lot, these agents saw Tompkins go to a gas station, where he went inside of the building for three or four minutes. He then drove to Egger's Tavern. After Tompkins was in the tavern for about 15 minutes, he was arrested. The agents patted down Tompkins in the bar and then asked him to step outside. He was handcuffed there and was read his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

This body search produced keys which fit the pick-up truck Tompkins had been driving. By this time there were five state agents at the scene in separate automobiles surrounding the driverless, parked and locked pick-up truck. The agents, using the key, made an immediate warrantless search of the pick-up truck and found a small box containing one-quarter pound of cocaine in plastic bags.

Tompkins moved to suppress the evidence produced by this search. The trial judge denied the motion because he concluded the search of the truck was incident to the arrest and, in any event, the cocaine inevitably would have been discovered by lawful means. The judge determined that irrespective of the legal theory supporting the search, there was probable cause for a search of the truck. However, the judge specifically found that a search warrant could have been obtained.

On appeal from the judgment of conviction, the court of appeals agreed there was probable cause to believe that the remaining one-quarter pound of cocaine was in the truck. The court of appeals held that the search was conducted incident to the arrest of Tompkins, despite the fact the arrest and pat-down took place in Egger's Tavern. The conviction was affirmed.

The defendant argues in this court that the warrantless search was not a valid search incident to his arrest. He further argues there was no probable cause to believe the remaining one-quarter pound of cocaine was in the parked and locked truck. Finally, he asserts that, even were there probable cause for a search, there were no exigent circumstances that would permit an exception to the requirement of a search warrant. He points out that the trial judge made the specific finding that a warrant could have been obtained.

Our first inquiry is whether the search was conducted incident to a lawful arrest. If it was not, we must examine whether the agents had probable cause to believe the cocaine was located in Tompkins' truck. If they did not have probable cause to search, the inquiry ends, because the warrantless search was per se unreasonable under the Wisconsin Constitution and United States Constitution search and seizure provisions. If this court finds that the agents did have probable cause to search the truck, the issue becomes whether exigent circumstances are required to be present when the defendant is arrested outside of his vehicle and some distance from it.

The issues in this case regarding the existence of probable cause and the propriety of the search conducted present questions of law. Accordingly, this court independently reviews these issues without deference to the trial court or court of appeals. Lambert v. Wrensch, 135 Wis.2d 105, 115, 399 N.W.2d 369 (1987).

Article I, sec. 11 of the Wisconsin Constitution prohibits unreasonable search and seizure. ¹ Without probable cause neither a warrant nor warrantless search would be appropriate. Where a search is made incident to a lawful arrest, there need not be probable cause for the search. See sec. 968.11, Stats.; State v. Fry, 131 Wis.2d 153, 388 N.W.2d 565 (1986).

Section 968.11, Stats., delineates the scope of a search made incident to a lawful arrest. ² If the defendant had been arrested in the motor vehicle or, as in Fry, had he been stopped while driving and then arrested immediately thereafter just outside of his vehicle, there is no question that the search would have been within the scope of a search incident to a lawful arrest. However, in this case Tompkins was arrested in the tavern some distance from his truck. Tompkins' truck was not "an area within [the defendant's] immediate presence" under sec. 968.11. We disagree with the court of appeals that the search was conducted "incident to" Tompkins' arrest within the meaning of sec. 968.11 and Fry, and we decline to sustain the search on these grounds.

Tompkins' second challenge regards the existence of probable cause to search the truck. While defendant in his brief denies that there was reason to believe he had the remaining one-quarter pound with him at the time of Lyons' initial purchase, in oral argument he conceded that there was evidence to a reasonable probability that he did then have the remaining cocaine with him. He asserts, however, that because following the delivery to Lyons, Tompkins stopped at a gas station for three or four minutes and then was in Egger's Tavern for about 15 minutes prior to his arrest, he could have secreted the cocaine at either of those locations and, hence, there was no probable cause to believe the cocaine remained in the truck. Defense counsel did concede that there was probable cause to believe that the cocaine was in one of those three locations. He argued, however, "that the agents conducting the search were required to have probable cause to believe that a controlled substance was at the particular location searched." (Emphasis supplied.)

We have no quarrel with this proposition; however, we do not believe that the concept of probable cause is so constrained as to mean "a particular location ... and not at any other location." While defense counsel would reduce the state's argument of probable cause to an absurdity, stating "under the agents' theory they had probable cause to search the truck, the gas station, the tavern, and the area within a five-mile radius," we conclude that, under the facts here, there was probable cause to search the truck, the gas station and the tavern. There is no intimation in this record that the cocaine could have been left in any but the three named locations.

Professor Wayne LaFave discusses this situation in his treatise LaFave, Search and Seizure, sec. 3.2(e) at 598-99 (2d...