State Of Wis. v. Bauer

Decision Date29 June 2010
Docket NumberNo. 2009AP1367-CR.,2009AP1367-CR.
Citation2010 WI App 93,787 N.W.2d 412
PartiesSTATE of Wisconsin, Plaintiff-Respondent,v.Timothy Charles BAUER, Defendant-Appellant.
CourtWisconsin Court of Appeals

On behalf of the defendant-appellant, the cause was submitted on the briefs of Catherine M. Canright, Superior.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general, and Katherine D. Lloyd, assistant attorney general.



¶ 1 Timothy Bauer appeals a judgment of conviction for a single count of manufacturing THC, as a party to the crime. Bauer argues the police unconstitutionally searched his vehicle because they were not permitted to conduct a search incident to arrest and because they used his probation agent as a “stalking horse” to evade the search warrant requirement. Bauer further argues there was insufficient evidence to convict him. The State inadequately responds to Bauer's search-incident-to-arrest argument. We therefore reverse and remand with directions to the circuit court to suppress all fruits of the search of Bauer's vehicle.


¶ 2 After several police visits to private lands containing marijuana plants, Dunn County Sheriff's Investigator Russell Cragin and another officer returned on October 10, 2007. They discovered that many of the plants had been harvested. There were foot trails leading from the plants toward a residence, which police later determined belonged to James Wells.

¶ 3 The officers drove past the residence and Cragin observed Bauer in the yard, recognizing him from a previous arrest. The officers left and secured a search warrant for Wells' property. Nobody was present when police executed the warrant later that day. Once inside, police located a hidden, padlocked room behind one of the basement walls. The officers broke in and discovered numerous marijuana plants and other items used for growing marijuana.

¶ 4 Prior to procuring the search warrant for Wells' home, deputy Cragin had contacted Bauer's probation agent and informed her Bauer was seen at the property. The following morning, October 11, Cragin again spoke with the probation agent at a monthly meeting of various local government agencies. Cragin informed her of the evidence recovered from Wells' home, and she issued a pick-up order for Bauer. Police went to Bauer's girlfriend's home later that day to take him into custody, but he left before backup arrived. Police followed Bauer until he stopped at another location, making contact with him as he stepped out of his vehicle. Bauer was immediately placed under arrest and handcuffed. Bauer's vehicle was then searched and the officers seized a set of keys, pruning shears, and some marijuana particles found on the floor carpet. Bauer was initially at the back of his vehicle with one officer when it was being searched by another, but he was removed to a squad car when backup arrived. One of the keys taken from Bauer's vehicle fit the padlock on the door of Wells' grow room.

¶ 5 Bauer filed a motion to suppress the items seized from his vehicle and any statements he made. The circuit court denied Bauer's motion to suppress evidence, but did suppress some statements for the failure to Mirandize 1 him. Bauer was convicted of manufacturing THC, as a party to the crime, after a jury trial in which the key, the shears, and the marijuana particles were introduced as evidence against him.


¶ 6 Warrantless searches “are per se unreasonable under the Fourth Amendment [to the United States Constitution,]-subject only to a few specifically established ... exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Among the exceptions is a search incident to a lawful arrest. Arizona v. Gant, --- U.S. ----, 129 S.Ct. 1710, 1716, 173 L.Ed.2d 485 (2009). This “exception derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations.” Id.

In [ Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), the United States Supreme Court] held that a search incident to arrest may only include “the arrestee's person and the area ‘within his immediate control’-construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” That limitation, which continues to define the boundaries of the exception, ensures that the scope of a search incident to arrest is commensurate with its purposes of protecting arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy. If there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply.

Gant, 129 S.Ct. at 1716 (citations omitted, emphasis added).

¶ 7 In New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the Supreme Court considered Chimel's application to the automobile context. See Gant, 129 S.Ct. at 1716; State v. Fry, 131 Wis.2d 153, 166-68, 388 N.W.2d 565 (1986). The Court held “that when a police[ ] [officer] has made a lawful custodial arrest of the occupant of an automobile, [the officer] may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” Belton, 453 U.S. at 460, 101 S.Ct. 2860 (footnote omitted). Wisconsin adopted the Belton rule in Fry:

The Belton rule is a simple and reasonable rule governing the search of an automobile after an arrest is made. A police officer may assume under Belton that the interior of an automobile is within the reach of a defendant when the defendant is still at the scene of an arrest, but the defendant is not physically in the vehicle ....
By adopting the Belton rule, Wisconsin police officers can follow the [F]ourth [A]mendment's mandates without worrying about whether some different restrictions might be imposed on them under the Wisconsin Constitution.

Fry, 131 Wis.2d at 174-75, 388 N.W.2d 565.

¶ 8 Gant, however, recently clarified the Belton decision. The Supreme Court “reject[ed] th[e] [broad] reading of Belton and h[e]ld that the Chimel rationale authorizes police to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” Gant, 129 S.Ct. at 1719.2

¶ 9 Here, the circuit court denied Bauer's suppression motion because it concluded the evidence recovered from his vehicle was obtained pursuant to a valid search incident to arrest. The court did not, however, have the benefit of considering Gant, which was decided roughly a year after the court denied Bauer's pretrial motion. Regardless, whether a search is reasonable is a question of constitutional fact, which we determine independent of the trial court's conclusion. State v. Griffin, 131 Wis.2d 41, 62, 388 N.W.2d 535 (1986) aff'd, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987). Bauer argues that per Gant, the search of his vehicle incident to arrest was unreasonable because he was already in custody and handcuffed, away from his vehicle's passenger compartment, when the search commenced. We are inclined to agree.

¶ 10 We need not, however, resolve the issue. The State must establish that an exception to the search warrant requirement applies to any given search. State v. Pallone, 2000 WI 77, ¶ 29, 236 Wis.2d 162, 613 N.W.2d 568. Yet, the State fails to address Bauer's argument relying on Gant. Instead, without ever acknowledging Gant, the State merely responds:

Bauer's contention that the police somehow did not have authority to search his car upon his arrest is of no moment. It is black-letter law that a police officer may search the interior of an automobile “when the defendant is still at the scene of an arrest, but the defendant is not physically in the vehicle.”
State v. Fry, 131 Wis.2d 153, 174, 388 N.W.2d 565 (1986). Whether Bauer was in his car when the search began or whether he had been removed from the car makes no difference as to whether the search was legal. The police search of Bauer's car was legal. See id.

¶ 11 In light of the Gant decision, the broad rule adopted in Fry, 131 Wis.2d at 174-75, 388 N.W.2d 565, is no longer good law, much less “black-letter law.” Belton does not authorize a vehicle search incident to a recent occupant's arrest after the arrestee has been secured and cannot access the interior of the vehicle.” Gant, 129 S.Ct. at 1714. While citizens may be afforded greater protections under the Wisconsin Constitution, they may not be afforded less; they are always entitled to the minimum protections afforded by the Fourth Amendment to the United States Constitution, as interpreted by the United States Supreme Court. See State v. Knapp, 2005 WI 127, ¶ 59, 285 Wis.2d 86, 700 N.W.2d 899; State ex rel. La Follette v. Raskin, 30 Wis.2d 39, 49-50, 139 N.W.2d 667. We are perplexed that the State still relies on Fry despite Bauer's reliance on Gant.3 We deem the State's failure to respond to Bauer's Gant argument as a concession. See State v. Flynn, 190 Wis.2d 31, 39 n. 2, 527 N.W.2d 343 (Ct.App.1994) ( We will not decide issues that are not, or inadequately, briefed.”); Charolais Breeding Ranches, Ltd. v. FPC Secs. Corp., 90 Wis.2d 97, 109, 279 N.W.2d 493 (Ct.App.1979) (unrefuted arguments are deemed conceded).

¶ 12 The State also argues, apparently in response to Bauer's separate stalking-horse argument,4 that Bauer's arrest and the search of his vehicle were authorized by State v. Pittman, 159 Wis.2d 764, 465 N.W.2d 245 (Ct.App.1990). The State correctly observes that Pittman permits police to enter a parolee's residence without an arrest warrant and seize him or her based only on an administrative apprehension...

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4 cases
  • State v. Meisenhelder
    • United States
    • Wisconsin Court of Appeals
    • June 15, 2022
    ...the search incident to a lawful arrest. See Riley v. California , 573 U.S. 373, 382, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014) ; State v. Bauer , 2010 WI App 93, ¶6, 327 Wis. 2d 765, 787 N.W.2d 412. ¶12 The law permits a warrantless search incident to arrest because searching the arrested pers......
  • State v. Meisenhelder
    • United States
    • Wisconsin Court of Appeals
    • June 15, 2022
    ... ... Meisenhelder appeals from a judgment entered after ... she pled no contest to possession of methamphetamine, ... contrary to WIS. STAT. § 961.41(3g)(g) (2019-20) ... Meisenhelder contends the circuit court erred when it denied ... her motion to suppress, which ... incident to a lawful arrest. See Riley v ... California, 573 U.S. 373, 382 (2014); State v ... Bauer, 2010 WI.App. 93, ¶6, 327 Wis.2d 765, 787 ... N.W.2d 412 ...          ¶12 ... The law permits a warrantless search ... ...
  • State v. Cooper
    • United States
    • Wisconsin Court of Appeals
    • November 21, 2018
    ...under the Fourth Amendment is a question of constitutional fact, which this court determines independently of the circuit court. State v. Bauer , 2010 WI App 93, ¶9, 327 Wis. 2d 765, 787 N.W.2d 412. The circuit court’s findings of evidentiary and historical facts, however, are upheld unless......
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    • July 31, 2018
    ...action to be filed. Kobilka did not file a reply brief to address Cottonwood's argument, and we deem the issue conceded. See State v. Bauer , 2010 WI App 93, ¶ 11, 327 Wis. 2d 765, 773, 787 N.W.2d 412 (unrefuted arguments are deemed conceded). The plain wording of § 426.109(1) requires cons......

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