State v. Betterley

• Decision Date: 21 March 1995
• Docket Number: No. 93-1979-CR,93-1979-CR
• Citation: 191 Wis.2d 407,529 N.W.2d 216
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Jody E. BETTERLEY, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 216

529 N.W.2d 216

191 Wis.2d 407

STATE of Wisconsin, Plaintiff-Respondent, v. Jody E. BETTERLEY, Defendant-Appellant-Petitioner.

No. 93-1979-CR.

Supreme Court of Wisconsin.

Argued Jan. 11, 1995.

Decided March 21, 1995.

For the defendant-appellant-petitioner there were briefs and oral argument by Margaret A. Maroney, Asst. State Public Defender.

For the plaintiff-respondent the cause was argued by Paul Lundsten, Asst. Atty. Gen., with whom on the brief was James E. Doyle, Atty. Gen.

DAY, Justice.

This is a review of a decision of the court of appeals that affirmed a judgment of conviction and order denying postconviction relief of the circuit court for St. Croix County, Honorable Conrad A. Richards, Judge. ¹ On April 23, 1992, a jury convicted Mr. Jody E. Betterley for felony theft arising out of insurance fraud in violation of sec. 943.20(1)(d), Stats., ² and obstructing an officer in violation of sec. 946.41, Stats. ³ Both charges stemmed from Betterley falsely reporting that a ring was stolen during a burglary of his home in July 1990 and collecting insurance for the purported loss. A key piece of evidence at trial was a ring police took from a property box containing Mr. Betterley's possessions at the St. Croix County Jail where he had been held for investigation of an alleged probation violation. Betterley argues the trial court erred in failing to suppress the use of the ring as evidence, and, in the alternative, that a new trial was necessary in the interest of justice.

We hold that the police did not violate Mr. Betterley's Fourth Amendment right to be free from unreasonable searches and seizures by removing the ring from the property box. We also hold that Betterley is not entitled to a new trial in the interest of justice. We therefore affirm the decision of the court of appeals.

In July 1990, Betterley reported that several items were stolen from his apartment, including a fairly unusual fourteen carat gold ring with Teflon inlays on both sides and a .24 carat diamond center that he had purchased from Breault Jewelers for $738.45 (Breault Ring). The Rural Insurance Companies of Madison, Wisconsin paid Betterley $2,688.50 for losses Betterley claimed he sustained in the burglary. This claim was the basis for the charges against Betterley.

Betterley's defense at trial was that the ring police took from his property box at the St. Croix County Jail was not the Breault Ring, but instead was a ring his father had given to him. This was contradicted by Betterley's mother who said that she had never seen Betterley's father wearing a ring similar to the one in question, that she had never known him to own such a ring and that Betterley had not told her that his father gave him a ring. It was also contradicted by Mr. Breault, the owner of Breault Jewelers. He testified that he was able to identify the ring because it was the same width, cut, clarity, color, and ring size and had the same uncommon manufacturer's stamps as the Breault Ring.

Ms. Cindy Strohbeen, who sold the Breault Ring to Betterley, also testified. She stated that about one month after Betterley reported the Breault Ring stolen, she saw Betterley at a gas station wearing a ring she believed to be the one she had sold him. When she commented, "nice ring," Betterley replied that it was a cheap imitation that he had made in the Twin Cities.

The defense countered with testimony from Mr. James Garnett. He claimed that he bought a ring in February 1990 from Betterley that looked like the Breault Ring and that Betterley said was his father's. He further testified that at the end of June 1990, Betterley bought the ring back while wearing a third ring that looked like both the Breault Ring and Betterley's father's ring.

Based on this testimony, the jury found Betterley guilty of felony theft arising out of insurance fraud and obstructing an officer. Following Betterley's conviction, Attorney William Schembera testified that the defense had intended to use the cheap imitation ring Betterley claimed he was wearing at the gas station when he met Ms. Strohbeen. The purpose of introducing the ring would have been to impeach Ms. Strohbeen's testimony and to corroborate Mr. Garnett's testimony. Betterley could not bring the ring because it was in the possession of the Dunn County Sheriff's Department who had seized it when they arrested Betterley the day before trial. Betterley argued that this prevented the true controversy from being tried and necessitated a new trial in the interest of justice.

Betterley also argued that the trial court erred in refusing to suppress the ring taken from the property box based on the following material facts. On April 15, 1991, Officer Chris Lundell (Lundell) of the New Richmond Police Department met with Betterley on an unrelated matter and noticed a ring on Betterley's hand that looked like one Lundell had seen at Breault Jewelers. The next day Lundell spoke to Mr. Breault who told him that Betterley had bought a ring from Breault Jewelers and that Betterley had later told him that the ring was stolen. Mr. Breault also showed Lundell a ring nearly identical to the ring Betterley bought. Lundell then went to the police department and pulled the police report on the July 1990 burglary. The report contained a photograph of the ring Betterley reported stolen. Lundell noticed that the ring in the photograph was "very, very similar, if not exact[ly]" the same as the ring he had seen Betterley wearing.

Betterley was on probation at the time, so Lundell told Mr. Tom Petta, Betterley's probation officer, about the possibility that Betterley had defrauded the insurance company. Mr. Petta told Lundell that the alleged fraud occurred before Betterley was on probation, but said that Lundell should "[g]o ahead and investigate it." Mr. Petta also told Lundell that he was placing a probation hold on Betterley and that the police should pick him up if they saw him. The explanation for the probation hold was that Betterley, although he did not have a job, had purchased a car without telling Mr. Petta.

At 2:00 a.m. on April 18, 1991, Betterley was taken into custody and detained at the St. Croix County Jail on the probation hold and an inventory search was made. A ring was found in Betterley's pants pocket and placed in a jail property box. Betterley does not argue that this search and seizure violated his Fourth Amendment rights.

Later that day, Lundell learned that Betterley was in jail and that a county jailer had discovered a ring during an inventory search. Lundell asked the sheriff's department to release the ring. At 10:00 a.m., New Richmond Police Officer Jarchow removed the ring from the property box without a warrant and delivered it to Lundell. The ring was retained as evidence. Lundell later showed the ring to Mr. Breault, who on May 13, 1991, identified it as the ring he had sold Betterley.

SEARCH AND SEIZURE OF

THE RING

Both the Fourth Amendment to the United States Constitution and Article I, section 11 of the Wisconsin Constitution guarantee citizens the right to be free from "unreasonable searches." ⁴ When the material facts are not in dispute, the question of whether police conducted an unreasonable search is a question of law that this Court reviews without deference to the trial court or the court of appeals. State v. Tompkins, 144 Wis.2d 116, 121-22, 423 N.W.2d 823 (1988).

In construing Article 1, section 11 of the Wisconsin Constitution, this Court consistently follows the United States Supreme Court's interpretation of the Fourth Amendment. State v. Bohling, 173 Wis.2d 529, 536-37 n. 7, 494 N.W.2d 399 (1993). Here the United States Supreme Court case that most closely addressed the relevant issues is United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974).

In that case, Edwards was arrested and placed in police custody at about 11:00 p.m. on a charge of attempting to break into a post office. Investigation done at the scene about the time of Edwards' arrest revealed that the perpetrator probably had paint chips on his clothes. The next morning, police took Edwards' clothes and found paint chips on them which were later admitted as evidence. Id. at 801-02, 94 S.Ct. at 1236-37. The United States Supreme Court upheld the trial court's decision to allow the evidence, stating that once the accused is lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and subsequent administrative processing, on the one hand, and the taking of the property for use as evidence, on the other.

Id. at 807, 94 S.Ct. at 1239.

Edwards leaves open three questions that we must answer to decide this case. First, when may police officers examine the effects of a person lawfully in custody that have previously been searched ("second look") without first obtaining a warrant. Second, to what extent may the effects be examined during the second look without first obtaining a warrant. Third, does an officer need to have probable cause to believe that evidence of a crime will be discovered before taking a second look.

As to the timing and extent of the second look, the Edwards court stated:

While the legal arrest of a person should not destroy the privacy of his premises, it does--for at least a reasonable time and to a reasonable extent--take his own privacy out of the realm of protection from police interest....

Edwards, 415 U.S. at 808-09, 94 S.Ct. at 1239-40. However, Edwards does not definitively answer the question of what is reasonable.

Several cases have ruled on the permissible extent of the second look. We find the following reasoning persuasive. "Requiring police to procure a warrant for subsequent searches of an item already lawfully searched would in...