551 N.W.2d 24 (Wis.App. 1996), 94-1015, State v. Caban

Docket Nº:94-1015-CR.
Citation:551 N.W.2d 24, 202 Wis.2d 416
Opinion Judge:The opinion of the court was delivered by: Sundby
Party Name:STATE of Wisconsin, Plaintiff-Respondent, [d] v. Marty R. CABAN, Defendant-Appellant.
Attorney:For the defendant-appellant the cause was submitted on the briefs of Katherine R. Kruse of Legal Assistance To Institutionalized Persons of Madison.
Case Date:May 02, 1996
Court:Court of Appeals of Wisconsin
 
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551 N.W.2d 24 (Wis.App. 1996)

202 Wis.2d 416

STATE of Wisconsin, Plaintiff-Respondent, d

v.

Marty R. CABAN, Defendant-Appellant.

No. 94-1015-CR.

Court of Appeals of Wisconsin.

May 2, 1996

Submitted on Briefs Jan. 13, 1995.

Opinion Released May 2, 1996.

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[202 Wis.2d 418] For the defendant-appellant the cause was submitted on the briefs of Katherine R. Kruse of Legal Assistance To Institutionalized Persons of Madison.

For the plaintiff-respondent the cause was submitted on the brief of James E. Doyle, Attorney General, and Diane M. Nicks, Assistant Attorney General.

Before GARTZKE, P.J., and DYKMAN and SUNDBY, JJ.

SUNDBY, Judge.

In this appeal, we hold that the "automobile exception" to the warrant procedure of the Fourth Amendment to the United States Constitution allows the police to search "readily mobile" automobiles without first obtaining a warrant for that purpose. We further hold, however, that the automobile exception does not dispense with the requirement that the police have probable cause to believe that an automobile contains evidence of a crime before they may abandon the warrant procedure. Because the police did not have probable cause to believe that defendant-appellant Marty Caban's automobile contained evidence of a crime, the trial court erred when it denied Caban's motion to suppress evidence of marijuana seized by the police in a search of his automobile. We therefore reverse the order denying Caban's motion and the judgment convicting him of one count of possession of marijuana with intent to deliver and remand this cause for a new trial.

BACKGROUND

On Wednesday evening, March 31, 1993, Caban visited friends, Fred and Denise Hollingsworth, at their apartment in the City of Janesville, Wisconsin. He parked his unlocked car on the public street, just south of the Hollingsworth driveway. Officers of the [202 Wis.2d 419] Rock County Metro Drug Unit, who were preparing to execute a search warrant of the Hollingsworth apartment, observed Caban enter the apartment building. Minutes later they executed the warrant. They placed Caban in hand restraints and made him lie on the floor. An officer searched him and found substantial cash on his person. The officer identified Caban as a person involved in a previous attempt to purchase "hash." He instructed another officer to search Caban's automobile. The officer searched the passenger compartment and the car's locked trunk. From the passenger compartment, she seized a plastic bag containing marijuana. The police then placed Caban under arrest.

The State charged Caban with possession of marijuana with intent to deliver. The trial court denied Caban's motion to suppress the seized evidence based on the court's conclusion that the search was a valid search incident to Caban's arrest. The State concedes, however, that the police did not arrest Caban until after the search of his automobile and the seizure of the marijuana found therein. The State argues that because the police had probable cause to search Caban's automobile, a search warrant was not necessary and that, in any event, Caban conceded in the trial court that the police had probable cause to search his vehicle for evidence of possession of marijuana. The State characterizes Caban's "concession" as a waiver.

WAIVER

In the trial court, Caban argued that the police could have obtained a telephonic or other search warrant. "[The automobile] was not a threat to anyone. They could have waited and done their search at that time." The State contends this argument addresses lack of exigent circumstances and not lack of probable [202 Wis.2d 420] cause to search Caban's automobile. It claims that therefore Caban waived the right to present that issue for our review by failing to raise the issue in the trial court. See State v. Burke, 148 Wis.2d 125, 127 n. 1, 434 N.W.2d 788, 789 (Ct.App.1988), rev'd on other grounds, 153 Wis.2d 445, 451 N.W.2d 739 (1990).

Warrantless searches are per se unreasonable. State v. Milashoski, 159 Wis.2d 99, 110-11, 464 N.W.2d 21, 25-26 (Ct.App.1990), aff'd, 163 Wis.2d 72, 471 N.W.2d 42 (1991). The State has the burden of proving that a challenged warrantless

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search falls within one of the exceptions to this general rule. State v. Pozo, 198 Wis.2d 706, 711 n. 2, 544 N.W.2d 228, 230 (Ct.App.1995). The State was therefore required to show that probable cause existed for the warrantless search of Caban's automobile.

NEED FOR SEARCH WARRANT

(a) Probable Cause.

The State argues that if the police have probable cause to believe that an automobile contains evidence of a crime, the Fourth Amendment's command that the warrant procedure be complied with is an irrelevance. We agree that State v. Tompkins, 144 Wis.2d 116, 137-38, 423 N.W.2d 823, 832 (1988), holds that the "automobile exception" dispenses with the need to show exigent circumstances to make a warrantless search of an automobile. The exception does not, however, dispense with the requirement that probable cause exist for the police to believe that an automobile they propose to search contains evidence of a crime.

(b) The "Automobile Exception."

[202 Wis.2d 421] The scope of the "automobile exception" is defined by California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). After considering previous decisions developing the automobile exception, Professor LaFave states "[b]ut then came the most significant case of California v. Carney." 3 WAYNE R. LAFAVE, SEARCH AND SEIZURE § 7.2(b), at 471 (3d ed.1996).

Carney involved the warrantless search of an occupied mobile home sited on a private lot. Because of uncorroborated information that it was being used by a person who was exchanging marijuana for sex, Drug Enforcement Agency agents had the home under surveillance. They watched a young man enter the mobile home and when he emerged they followed and stopped him. He told them that he had received marijuana in exchange for sex. The agents returned with him to the mobile home and had him knock on the door. When Carney answered the door, the agents entered and observed marijuana, plastic bags, and a scale. They took Carney into custody and seized the mobile home. The California Supreme Court concluded that the DEA's search and seizure of Carney's mobile home was unlawful and reversed Carney's conviction for possession of marijuana with intent to sell. The California court did not disagree with the conclusions of the lower court that the agents had probable cause to believe that the mobile home contained evidence of a crime. However, the California Supreme Court held that the agents' search was unreasonable because they did not obtain a warrant. 471 U.S. at 388-89, 105 S.Ct. at 2066-68.

A divided United States...

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