State v. Caban

• Decision Date: 12 June 1997
• Docket Number: No. 94-1015-CR,94-1015-CR
• Citation: 210 Wis.2d 597,563 N.W.2d 501
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Marty R. CABAN, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 501

563 N.W.2d 501

210 Wis.2d 597

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Marty R. CABAN, Defendant-Appellant.

No. 94-1015-CR.

Supreme Court of Wisconsin.

Argued Jan. 29, 1997.

Decided June 12, 1997.

For the plaintiff-respondent-petitioner the cause was argued by Diane M. Nicks, Assistant Attorney General, with whom on the briefs was James E. Doyle, Attorney General.

For the defendant-appellant there was a brief by Katherine R. Kruse and University of Wisconsin Law School, Criminal Appeals Project and oral argument by Katherine R. Kruse ¶1 WILLIAM A. BABLITCH, Justice.

The State of Wisconsin (State) seeks review of a court of appeals' 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 probable cause to search the vehicle at the circuit court and is therefore precluded from raising it on appeal. We agree that Caban waived the issue of probable cause to search the vehicle and accordingly reverse the court of appeals.

¶2 The facts derived from the complaint are as follows: On March 31, 1993, Caban drove to the home of his friends, Fred and Denise Hollingsworth. Upon arriving at the Hollingsworth home, Caban parked his car just south of their driveway, on a public street.

¶3 Unbeknownst to Caban, the Hollingsworth residence was under surveillance at the time by the Rock County Metro Narcotics Unit (Narcotics Unit) in preparation for the execution of a search warrant. The search warrant specifically targeted the Hollingsworth apartment, its residents, Fred and Denise Hollingsworth, and any vehicles located on the premises. Neither Caban nor his vehicle was named in the search warrant.

¶4 A surveillance officer observed Caban park his automobile and then enter the Hollingsworth residence. The officer did not observe Caban carrying anything into the residence, but the officer noted that Caban was wearing a dark, ankle-length coat. Minutes after Caban entered the apartment, members of the Narcotics Unit entered the residence to execute the search warrant. Inside the Hollingsworth home, Narcotics Unit officers found Fred and Denise Hollingsworth, their three children, and Caban. They also discovered a ziplock baggie containing 29.9 grams of marijuana. Hollingsworth acknowledged that the marijuana belonged to him, but told the police that, just prior to the execution of the warrant, Caban had come by and asked if he wanted to purchase any marijuana. Hollingsworth further advised the officers that he had purchased marijuana from Caban several times in the past.

¶5 The officers forced Caban to the floor and placed him in hand restraints. After the occupants of the residence were secured, Narcotics Unit Detective Richard J. Mussey commented that he recognized Caban from the scene of a previous Narcotics Unit search. While Caban was secured in hand restraints, Detective Mussey searched him to assure the safety of the officers. This search produced no weapons and no contraband. However, in Caban's pockets, Detective Mussey discovered $1199.00 in United States currency.

¶6 Detective Mussey then ordered Deputy Hoerler of the Rock County Sheriff's Department to search Caban's vehicle. The officers at the scene made no attempt to obtain a search warrant for Caban's vehicle. Caban was not asked, nor did he consent to the search of his vehicle. No other vehicles were searched pursuant to the search warrant for the Hollingsworth residence.

¶7 Acting on the orders of Officer Mussey, Deputy Hoerler searched the entire unlocked interior and the locked trunk of Caban's vehicle while it was parked unattended at the curb. Deputy Hoerler recovered a black plastic bag from the front passenger floor area of the vehicle which she turned over to Drug Unit Officer Niman. Inside the bag were two clear plastic bags of marijuana, one weighing 19.6 grams and the other weighing 28.4 grams. Officer Niman seized the marijuana.

¶8 After the officers discovered the marijuana in Caban's vehicle, he was placed under arrest. Subsequently, Caban was charged with possession of a controlled substance with intent to deliver pursuant to Wis.Stat. § 161.41(1m)(b)(1993-94). ¹ Caban filed a pre-trial motion to suppress as evidence the marijuana found during the search.

¶9 The written motion, cited in relevant part below, ² asserts a broad Fourth Amendment challenge to the automobile search. However, Caban's motion did not include a request to suppress the evidence on the ground that there was no probable cause for the search of his vehicle.

¶10 On October 25, 1993, a suppression hearing was held on the motion in the Rock County Circuit Court, Judge Michael J. Byron, presiding. At the suppression hearing, defense counsel's questioning and argument did not pursue the issue of probable cause for the search of the automobile and at various times attempted to prevent the prosecution from doing so by raising objections to questions from the State going to the issue of probable cause to search the vehicle. The thrust of the defendant's questioning and argument was that the search of Caban's vehicle was not incident to a lawful arrest, nor was it within the scope of the search warrant for the Hollingsworth residence.

¶11 The circuit court, finding probable cause for Caban's arrest, denied Caban's motion to suppress. Caban pled guilty and was convicted. He appealed.

¶12 At the court of appeals, Caban argued for the first time that the officers lacked the requisite probable cause to search his vehicle and, accordingly, evidence of the marijuana seized during the search was inadmissible. The State argued that Caban had waived his right to appeal the issue of probable cause by failing to raise it at the trial level. Although two members of the court of appeals agreed with the State, a different plurality agreed to hear Caban's appeal. In his dissent, Judge Dykman concluded that Caban had neither specifically raised probable cause to search the vehicle, nor had his broad Fourth Amendment challenge raised the issue. In his concurrence, Judge Gartzke agreed, but concluded that the court of appeals could properly use its power of discretionary review in this case because the circuit court raised the issue sua sponte and the facts were sufficiently developed to decide whether probable cause existed. Judge Sundby, author of the majority opinion, concluded that Caban had preserved his right to appeal the issue of probable cause to search the vehicle by raising a broad Fourth Amendment challenge before the circuit court. Upon review, the court of appeals concluded that the police did not have probable cause to search Caban's automobile, and reversed Caban's conviction. We reverse the court of appeals and remand for reinstatement of Caban's conviction.

¶13 This case presents two issues for review: (1) whether Caban raised the issue of probable cause to search his automobile before the circuit court, thus preserving his right to appeal that issue; and if not, (2) whether this court will employ its power of discretionary review to consider the issue of probable cause.

¶14 Both issues involve the scope of appellate review. The general rule is that issues not presented to the circuit court will not be considered for the first time on appeal. State v. Gove, 148 Wis.2d 936, 940-41, 437 N.W.2d 218 (1989). This court has frequently stated that even the claim of a constitutional right will be deemed waived unless timely raised in the circuit court. Id. The party raising the issue on appeal has the burden of establishing, by reference to the record, that the issue was raised before the circuit court. Young v. Young, 124 Wis.2d 306, 316, 369 N.W.2d 178 (Ct.App.1985).

¶15 The reasons for the waiver rule go to the heart of the common law tradition and the adversary system. By limiting the scope of appellate review to those issues that were first raised before the circuit court, this court gives deference to the factual expertise of the trier of fact, encourages litigation of all issues at one time, simplifies the appellate task, and discourages a flood of appeals. David L. Walther, Patricia L. Grove, Michael S. Heffernan, Appellate Practice and Procedure in Wisconsin, § 3.2 (1995). Thus, when a party seeks review of an issue that it failed to raise before the circuit court, issues of fairness and notice, and judicial economy are raised.

¶16 In examining whether Caban raised the issue of probable cause to conduct the automobile search, we look first to whether he raised the issue in his written motion. ³ Wisconsin law requires movants to "[s]tate with particularity the grounds for the motion...." Wis.Stat. § 971.30(2)(c). The rationale underlying § 971.30's particularity requirement is notice--notice to the nonmoving party and to the court of the specific issues being challenged by the movant. Both the opposing party and the circuit court must have notice of the issues being raised by the defendant in order to fully argue and consider those issues. See Robert J. Martineau, Considering New Issues on Appeal: The General Rule and the Gorilla Rule, 40 Vand.L.Rev. 1023, 1029 (1987). Neither the principle of notice, nor Wis.Stat. § 971.30 makes an exception for motions raising Fourth Amendment challenges.

¶17 Therefore, in order to raise the issue of probable cause in his written motion, Caban was required to state with particularity, i.e., specifically assert, that the police lacked probable cause to search his automobile. This he failed to do. Caban's motion states several other Fourth Amendment issues with varying degrees of particularity, but not the issue of probable cause to search the vehicle. Accordingly, we conclude that Caban's written motion failed to state the issue of probable cause with...