State v. Callaway, 80-1333-CR

• Citation: 317 N.W.2d 428,106 Wis.2d 503
• Decision Date: 26 March 1982
• Docket Number: No. 80-1333-CR,80-1333-CR
• Parties: STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Dennis D. CALLAWAY, Defendant-Respondent.
• Court: United States State Supreme Court of Wisconsin

Page 428

317 N.W.2d 428

106 Wis.2d 503

STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Dennis D. CALLAWAY, Defendant-Respondent.

No. 80-1333-CR.

Supreme Court of Wisconsin.

Argued Feb. 3, 1982.

Decided March 26, 1982.

Sally L. Wellman, Asst. Atty. Gen. (argued), Bronson C. La Follette, Atty. Gen., on brief, for plaintiff-appellant-petitioner.

William J. Tyroler, Asst. State Public Defender, for defendant-respondent.

COFFEY, Justice.

This is a review of a decision of the court of appeals, 103 Wis.2d 389, 308 N.W.2d 897, affirming an order of the circuit court for Washington county, Hon. J. Tom Merriam, presiding, granting a motion to suppress. The defendant, Dennis Callaway, filed a motion to suppress the physical evidence (marijuana) seized in a warrantless inventory search of an automobile. The trial court, after an evidentiary hearing, found that both the impoundment of the vehicle and the subsequent inventory search of the car, including the glove compartment, were unreasonable and, thus, violative of Callaway's fourth amendment rights. The appellate court affirmed, agreeing with the trial court that the impounding of the automobile was unreasonable and further holding that the state had waived any right to raise the issue of Callaway's standing to challenge the constitutionality of the search by failing to raise the issue in the trial court.

The testimony presented at the hearing on defendant's motion to suppress recites that on May 3, 1979, at approximately 7:15 p. m., West Bend Police Officer Michael Quick stopped a vehicle driven by Dennis Callaway, the defendant-respondent, ¹ in the city of West Bend. Officer Quick, recognizing Callaway, ordered him to pull his vehicle over to the curb because of an outstanding traffic warrant. At the point of Callaway's arrest, parking was not allowed, although street-side parking was permitted by ordinance up until 2 a. m. some 20 feet from the position where Callaway was stopped.

Officer Quick walked up to the car and advised Callaway of the outstanding traffic warrant and that he would have to post $51 or be taken into custody. While approaching Callaway's vehicle, Officer Quick observed a "bong" ² on the back seat of the automobile. During interrogation at the scene, Callaway stated that he did not have any money on him. Officer Quick then placed Callaway under arrest and told him that he would be transported to the Washington county sheriff's department.

Patrolman Quick next informed Callaway that, pursuant to a police department policy, he had three alternatives to choose from regarding the removal of the car from the scene of the arrest. The three alternatives were: that the police would contact a person of Callaway's choice to remove the vehicle from the street; a tow truck would be called to transport the vehicle to the impoundment lot; or a police officer would drive the vehicle to the impoundment lot, thus saving Callaway towing charges. Callaway stated that he knew of no one he could contact at this time to remove the vehicle from the street. Callaway told Officer Quick that he preferred having an officer drive the vehicle to the police department and gave Quick the keys. Officer Quick radioed for assistance and shortly thereafter, another West Bend police officer arrived and drove the car to the West Bend police department where it was inventoried. Patrolman Quick transported Callaway to the Washington county sheriff's department.

Pursuant to the standard police department procedures, a third police officer conducted a complete inventory of the contents of the car, including the glove compartment, at the police garage. The inventorying officer testified that the department inventory procedure is for "the protection of the owner of the vehicle as well as the police department and the community as a whole." The police officer filled out a standard motor vehicle content inventory form as he conducted the inventory.

After the general car inventory was completed, the officer used one of the defendant's keys to unlock the glove compartment. The officer testified that it was the policy of the West Bend police department to inventory the contents of the entire car, including a locked glove compartment, if a key was furnished. Inside the glove compartment, the inventorying officer found a clear plastic bag containing a vegetable substance which was subsequently tested and determined to be marijuana. Based upon this evidence, Callaway was charged with possession of a controlled substance with intent to deliver, contrary to sec. 161.41(1m)(b), Stats., and as a repeater, contrary to sec. 939.62(1)(b), because of a prior conviction for delivery of a controlled substance, contrary to sec. 161.41(1)(b). After a preliminary hearing, Callaway was bound over for trial.

Prior to trial, Callaway filed a motion to suppress the evidence seized during the automobile search, alleging that the inventory search of the car, including the glove compartment, was in violation of his constitutional rights. After an evidentiary hearing and the submission of briefs, the trial court granted the motion to suppress, finding that the impounding of the automobile and the inventory search of the car, including the glove compartment, were unreasonable. The state appealed this finding and order, pursuant to sec. 974.05(1)(d)2, Stats.

The appellate court affirmed the order holding that the impounding of the car was unreasonable under the facts of the case and that the state waived any objection it had to the defendant's standing to challenge the constitutionality of the impoundment and inventory search of the car, including the glove compartment, because that issue was not raised in the trial court.

Issue

Was the impounding and subsequent inventory search of the automobile, including the glove compartment, unreasonable under the facts and circumstances of this case and, thus, violative of the defendant's fourth amendment protection against unreasonable searches and seizures?

The fourth amendment protection against unreasonable searches and seizures is applicable to the states through the due process clause of the fourteenth amendment. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081 (1961). The fourth amendment protects the rights of people to be secure from unreasonable searches and seizures as follows:

"The Fourth Amendment to the United States Constitution provides:

" 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

"Art. I, sec. 11, of the Wisconsin Constitution is substantially the same. Warrantless searches 'are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions.' Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). These exceptions are 'jealously and carefully drawn.' Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958)." State v. Prober, 98 Wis.2d 345, 351, 297 N.W.2d 1 (1980).

It is well-established that automobile inventory searches are "searches" within the meaning of the fourth amendment and, therefore, subject to the reasonableness standard of that amendment.

"We conclude that the latter line of cases not only compels the conclusion that an inventory search is a 'search,' but also represents the better reasoned approach. An inventory search can be a serious intrusion into the private affairs of the individual. Cases holding that such conduct is not a search limit their inquiry to the question of whether the search is a bona fide inventory. Cases taking the opposite view consider that question, but also concern themselves with the 'reasonableness' of the intrusion, i.e., once it is established that it is not improper to conduct an inventory, the question becomes whether the manner in which the inventory is conducted, its scope, is reasonable. We believe the severity of the intrusion and its possibility for abuse requires this double-barreled protection." State v. McDougal, 68 Wis.2d 399, 409, 410, 228 N.W.2d 671 (1975). See also : South Dakota v. Opperman, 428 U.S. 364, 375-76, 96 S.Ct. 3092, 3100, 49 L.Ed.2d 1000 (1976).

In determining whether an automobile search is reasonable, both this court and the United States Supreme Court have consistently drawn a distinction between automobiles and other areas protected by the fourth amendment. The rationale for this distinction is discussed in the following quotation:

"This Court has traditionally drawn a distinction between automobiles and homes or offices in relation to the Fourth Amendment. Although automobiles are 'effects' and thus within reach of the Fourth Amendment, Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706 (1973), warrantless examinations of automobiles have been upheld in circumstances in which a search of a home or office would not. Cardwell v. Lewis, 417 U.S. 583, 589, 94 S.Ct. 2464, 2468, 41 L.Ed.2d 325 (1974); Cady v. Dombrowski, supra, at 439-440; Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975, 1979, 26 L.Ed.2d 419 (1970).

"The reason for this well-settled distinction is twofold. First, the inherent mobility of automobiles creates circumstances of such exigency that, as a practical necessity, rigorous enforcement of the warrant requirement is impossible, Carroll v. United States, 267 U.S. 132, 153- 154, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925); Coolidge v. New Hampshire, 403 U.S. 443, 459-460, 91 S.Ct. 2022, 2034, 29 L.Ed.2d 564 (1971). But the Court has also upheld warrantless searches where no immediate danger was presented that the car would be removed from the jurisdiction. Chambers v. Maroney, supra, at...