State v. Caban
| Decision Date | 02 May 1996 |
| Docket Number | No. 94-1015-CR,94-1015-CR |
| Citation | 551 N.W.2d 24,202 Wis.2d 416 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, d v. Marty R. CABAN, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
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.
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.
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 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.
In the trial court, Caban argued that the police could have obtained a telephonic or other search warrant. The State contends this argument addresses lack of exigent circumstances and not lack of probable 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
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.
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.
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 Supreme Court reversed. It rejected Carney's argument that the automobile exception should not be applied to his mobile home because it was capable of functioning as a home. Id. at 392-93, 105 S.Ct. at 2069-70. The Court said that its application of the automobile exception turned on the "ready mobility" of the vehicle and not on other uses to which the vehicle might be put. 1 Id. at 390-91, 105 S.Ct. at 2068-69. The Court made clear, however, that ready mobility is not the only basis for the automobile exception. Id. at 391, 105 S.Ct. at 2069. Less rigorous warrant requirements are justified because of the reduced expectation of privacy one has in his or her automobile. Id. The Court said: "These reduced expectations of privacy derive not from the fact that the area to be searched is in plain view, but from the pervasive regulation of vehicles capable of traveling on the public highways." Id. at 392, 105 S.Ct. at 2069.
Although the Court cited Cady v. Dombrowski, 413 U.S. 433, 440-41, 93 S.Ct. 2523, 2527-28, 37 L.Ed.2d 706 (1973), to support this statement, Cady did not create a per se automobile exception. The Cady Court acknowledged that "this branch of the law [warrantless searches] is something less than a seamless web." Id. at 440, 93 S.Ct. at 2725. While the Court approved a warrantless search of a disabled vehicle which the police caused to be towed to a private garage, we infer that it would not have approved a warrantless search of the automobile had the circumstances been different. The Court noted: "The [automobile] was not parked adjacent to the dwelling place of the owner as in Coolidge v. New Hampshire, 403 U.S. 443 [91 S.Ct. 2022, 29 L.Ed.2d 564] (1971), nor simply momentarily unoccupied on a street." 413 U.S. at 446-47, 93 S.Ct. at 2530-31.
Carney has not knitted up the shredded seams of the warrantless search branch of the law. Professor LaFave concludes that the line of cases from Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), through Carney "cannot be squared with the oft-stated principle that warrants-when-practicable is the best policy." SEARCH AND SEIZURE, § 7.2(b), at 472. He notes that the Court has come to emphasize the "lesser expectation of privacy" notion, not the mobility factor. Id. at 477. This emphasis is reflected in how lower courts now deal with vehicle searches. Lower courts "uphold warrantless searches with virtually no inquiry into the facts of the particular case, reasoning that whether any kind of exigent circumstances claim could plausibly be put forward is totally irrelevant." Id. Professor LaFave predicts that the Court will likely "back[ ] away" from Carney, id., but until further clarification from the Court we would swim against a strong tide were we to require examination of the practicability of obtaining a warrant where the automobile exception may be appropriately applied. Some federal courts of appeals flatly reject such an examination: United States v. Matthews, 32 F.3d 294, 298-99 (7th Cir.1994) (); United States v. Gastiaburo, 16 F.3d 582, 586 (4th Cir.) (fact it was "virtually impossible" that evidence would be lost before search warrant obtained "irrelevant"), cert. denied, 513 U.S. 829, 115...
To continue reading
Request your trial
-
State v. O'Brien
...with particularity, and the search could go no further--it did not authorize the search of his truck. He cites to State v. Caban, 202 Wis.2d 416, 551 N.W.2d 24 (Ct.App.1996), in support of this contention. O'Brien persists that even if the truck were part of the common area of the property,......
-
State v. Kinstler
...however. On appeal, we considered the probable cause issue, despite Caban's failure to raise it below. See State v. Caban, 202 Wis.2d 416, 551 N.W.2d 24 (Ct.App.1996), rev'd, 210 Wis.2d 597, 563 N.W.2d 501 (1997). The supreme court reversed, holding that Caban, by failing to raise the speci......
-
State v. Caban
...decision which held the police did not have probable cause to search a vehicle belonging to Marty R. Caban (Caban). State v. Caban, 202 Wis.2d 417, 551 N.W.2d 24 (1996). The State argues that even though there was probable cause to search Caban's vehicle, Caban did not raise the issue of pr......