State v. Andrews

• Decision Date: 04 June 1996
• Docket Number: No. 94-1888-CR,94-1888-CR
• Citation: 549 N.W.2d 210,201 Wis.2d 383
• Parties: , 64 USLW 2805, 51 A.L.R.5th 833 STATE of Wisconsin, Plaintiff-Respondent, v. Michael R. ANDREWS, Jr., Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 210

549 N.W.2d 210

201 Wis.2d 383, 64 USLW 2805, 51

A.L.R.5th 833

STATE of Wisconsin, Plaintiff-Respondent, v. Michael R. ANDREWS, Jr., Defendant-Appellant.

No. 94-1888-CR.

Supreme Court of Wisconsin.

Argued April 3, 1996.

Decided June 4, 1996.

For the defendant-appellant there were briefs by Robert C. Raymond, Roxanne F. Felizmena and Raymond Law Office, Milwaukee and oral argument by Robert C. Raymond.

For the plaintiff-respondent the cause was argued by Mary E. Burke, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.

JANINE P. GESKE, Justice.

This case comes before us on certification from the court of appeals pursuant to Wis.Stat. § (Rule) 809.61 (1993-1994) for review of a judgment of conviction entered against Michael R. Andrews, Jr. (Andrews). This conviction arose from an incident that occurred while Andrews was visiting a friend's apartment where police executing a premises search warrant discovered marijuana in Andrews' duffel bag. After an unsuccessful motion to suppress the evidence, on the grounds that search of a visitor's possessions violates the Fourth Amendment proscription against unreasonable searches, Andrews pled guilty to and was convicted of one count of possession of a controlled substance with intent to deliver.

The issue before us is whether the police, while executing a search warrant for private premises, may search the belongings of a visitor who happens to be on those premises. We conclude that police may search all items found on the premises that are plausible repositories for the objects of the search, except those worn by or in the physical possession of persons whose search is not authorized by the warrant. The search was proper under the warrant because the duffel bag was not in Andrews' possession at the time, and could reasonably contain the marijuana, baggies or paraphernalia sought. Thus, we affirm the judgment of conviction.

I.

The facts, as relevant to this opinion, are as follows. Washington County Circuit Judge Richard T. Becker issued a search warrant for the premises of 729 Timberline Trail Apartment 5, City of Hartford, Wisconsin, based upon the sworn testimony of Deputy Sheriff James Wolf of the multi-jurisdictional drug unit. He identified the occupant of that apartment as Ms. Terry Simko. In support of the warrant, Deputy Wolf testified that stems, seeds, and leafy material testing positive for THC, as well as two marijuana pipes containing residue, and a ziplock baggie containing marijuana particles had been retrieved from Simko's garbage. The judge was satisfied that probable cause existed justifying a search of Simko's apartment for contraband as evidence of the crime of possession of a controlled substance. ¹

At the suppression hearing, Andrews testified that he had gone to Simko's apartment to study. He indicated that the two of them were in the master bedroom studying when they heard a knock at the front door. Simko and her son answered the door. Andrews exited the bedroom and walked down the hall toward the door when he heard something about a search warrant. Andrews testified that an officer, whom he could not later positively identify, confronted and frisked him. He believed this was the same officer who handled a drug dog brought onto the premises. In response to questions from the officer, Andrews responded that he did not live at the apartment and that he owned a duffel bag which was in the master bedroom. Andrews was then told to sit at the dinette while the police searched the apartment.

The drug dog reacted to the duffel bag in the master bedroom. Deputy Wolf, who was searching that room with Officer Boudry (the dog handler), then opened the duffel bag and searched it. Underneath some notebooks and papers, Deputy Wolf found a large plastic bag with smaller baggies inside containing marijuana. The duffel bag also contained a hand-held scale and other drug paraphernalia. Deputy Wolf testified that, at the time of the search, he assumed the duffel bag belonged to the apartment's occupant, Ms. Simko.

Upon determining that the duffel bag in fact belonged to Andrews, the police arrested Andrews who was subsequently charged with possession of a controlled substance (marijuana) with intent to deliver and possession of a controlled substance (marijuana) without tax stamps. The defense filed a motion to suppress, arguing that the search of the duffel bag was unreasonable and violative of the Fourth Amendment because it was not authorized under the search warrant issued for Simko's residence. The circuit court denied the motion, finding that the search was proper both under the authority of the warrant, and pursuant to probable cause supplied by the dog sniff and exigent circumstances presented by the mobility of the bag. ²

Upon the State's motion at the plea hearing, the circuit court dismissed the tax stamp charge. Andrews pled guilty to one count of possession of a controlled substance with intent to deliver. He was sentenced to three years in prison (imposed and stayed) and three years of probation with one year in jail as a condition of probation. Andrews filed an appeal and this court subsequently granted certification from the court of appeals.

II.

The issue before us is one of first impression in Wisconsin--may any belongings of a visitor/non-resident be searched in the execution of a premises only search warrant. The focus of this appeal is the circuit court's denial of Andrews' motion to suppress. When this court reviews a denial of a suppression motion "we will uphold the trial court's findings of fact unless they are against the great weight and clear preponderance of the evidence." State v. Whitrock, 161 Wis.2d 960, 973, 468 N.W.2d 696 (1991). However, the question of whether the facts satisfy constitutional guarantees is one of law which we review de novo. Id.

Both the Fourth Amendment of the United States Constitution and Article I, Section 11 of the Wisconsin Constitution guarantee that persons shall be secure from unreasonable searches and seizures. ³ This court traditionally interprets the two very similar provisions in concert. State v. DeSmidt, 155 Wis.2d 119, 129, 454 N.W.2d 780 (1990). The development of Wisconsin law on search and seizure parallels that developed by the United States Supreme Court. State v. Guy, 172 Wis.2d 86, 93, 492 N.W.2d 311 (1992), cert. denied, 509 U.S. 914, 113 S.Ct. 3020, 125 L.Ed.2d 709 (1993).

Generally a premises warrant authorizes the search of all items on the premises so long as those items are plausible receptacles of the objects of the search. The Supreme Court has held that:

A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. Thus, a warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found.

United States v. Ross, 456 U.S. 798, 820-21, 102 S.Ct. 2157, 2170-71, 72 L.Ed.2d 572 (1982). However, courts have found that special concerns are raised when the items searched belong to non-residents or visitors to the premises described in the warrant. See, e.g., United States v. Giwa, 831 F.2d 538 (5th Cir.1987).

Search warrants must be issued by a neutral, disinterested magistrate to whom it has been demonstrated that there is probable cause to believe that the evidence sought will aid in prosecution for a particular offense, and the warrant must describe with particularity the place to be searched and things to be seized. Dalia v. United States 441 U.S. 238, 255, 99 S.Ct. 1682, 1692, 60 L.Ed.2d 177 (1979). This court has stated that the particularity requirement of the Fourth Amendment satisfies three objectives by preventing general searches, the issuance of warrants on less than probable cause, and the seizure of objects different from those described in the warrant. State v. Petrone, 161 Wis.2d 530, 540, 468 N.W.2d 676 (1991), cert. denied, 502 U.S. 925, 112 S.Ct. 339, 116 L.Ed.2d 279 (1991).

Even when the validity of the warrant is itself uncontested, the manner in which it is executed may be subjected to later judicial review. A search "must be conducted reasonably and appropriately limited to the scope permitted by the warrant. Whether an item seized is within the scope of a search warrant depends on the terms of the warrant and the nature of the items seized." Id. at 542, 468 N.W.2d 676.

The Supreme Court has stated that, "[w]herever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures." Katz v. United States, 389 U.S. 347, 359, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). And the "application of the Fourth Amendment depends on whether the person invoking its protection can claim a 'justifiable,' a 'reasonable,' or a 'legitimate expectation of privacy' that has been invaded by government action." Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979) (citations omitted).

Thus, the question we face is whether a visitor's belongings fall within the scope of a warrant issued for another's premises and thus may be lawfully searched, or whether they are prohibited as unreasonable invasions of the privacy of an individual who just happens to be on those premises.

Jurisdictions are divided on the question of which personal effects, if any, of a non-occupant or visitor can be searched under a premises warrant. Courts have utilized several, sometimes overlapping, approaches with the primary ones known as the "relationship," "notice" and "physical proximity or possession" tests. We will briefly review the basic tenets and development of each in order to place our decision in the appropriate context.

Under the "relationship" test, a court looks first to the...