State v. Clark, No. 02-2195-CR.

• Court: Court of Appeals of Wisconsin
• Writing for the Court: Before Wedemeyer, P.J., Fine and Curley, JJ.
• Citation: 265 Wis.2d 557,666 N.W.2d 112,2003 WI App 121
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Timothy T. CLARK, Defendant-Appellant.
• Decision Date: 20 May 2003
• Docket Number: No. 02-2195-CR.

265 Wis.2d 557
2003 WI App 121
666 N.W.2d 112

STATE of Wisconsin, Plaintiff-Respondent,
v.
Timothy T. CLARK, Defendant-Appellant

No. 02-2195-CR.

Court of Appeals of Wisconsin.

Submitted on briefs April 1, 2003.

Decided May 20, 2003.

265 Wis.2d 560

On behalf of the defendant-appellant, the cause was submitted on the briefs of Rodney L. Cubbie of Cubbie & Pepper, Ltd., of Milwaukee

265 Wis.2d 561

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Stephen W. Kleinmaier, assistant attorney general

Before Wedemeyer, P.J., Fine and Curley, JJ.

¶ 1. CURLEY, J.

Timothy T. Clark appeals from the judgment of conviction entered after he pled guilty to one count of possession of cocaine with intent to deliver, contrary to WIS. STAT. § 961.41(1m)(cm)5 (2001-02).¹ Clark contends that the circuit court erred in denying his suppression motion because the vehicle he was driving was searched in violation of his constitutional protection against unreasonable searches and seizures. Because towing the vehicle under the circumstances presented here was not a proper exercise of the police department's community caretaker function, we conclude that the subsequent inventory search constituted a violation of Clark's rights under the Fourth Amendment to the United States Constitution and article 1, section 11, of the Wisconsin Constitution. See U.S. CONST. amend. IV; WIS. CONST. art. 1, § 11. Accordingly, we reverse the circuit court's decision denying Clark's suppression motion and remand the matter to the circuit court.

I. BACKGROUND.

¶ 2. On September 26, 2001, at approximately 5:00 p.m., Milwaukee police officers responded to a report of shots fired and a possible attempted robbery in the 400 block of North 39th Street. At the scene,

265 Wis.2d 562

Detective Richard McKee interviewed an individual named Eugene Stadler, who told Detective McKee that he had observed the incident.²

¶ 3. Stadler stated that earlier in the day, "his cousin Tim" had come to visit him at his house located at 430 North 39th Street.³ Stadler did not know Clark's address or telephone number. Stadler stated that Clark was driving a gray Ford Taurus station wagon when he arrived at his house. He also informed Detective McKee that as Clark left the residence, he was approached by a man holding a handgun, who ordered him to "drop it." Stadler said that Clark then fled on foot and ran into a gangway. As Clark ran away, the man fired a number of shots in his direction.

¶ 4. The police found a spent shell casing in the street within ten yards of a parked gray Ford Taurus automobile. They also discovered another spent shell casing in a gangway approximately seventy-five yards from the vehicle. When Detective McKee checked the Taurus's registration, he discovered that it was jointly registered to Pamela Johnson and Christine VanMun who resided in the 9000 block of North 95th Street. Although the detective observed that the Taurus was undamaged and legally parked, because the vehicle was unlocked, Detective McKee decided to have it towed to the police department's impound lot for safekeeping. Before the car was towed, the detective conducted a search and discovered a backpack containing a pair of jeans and cocaine.

265 Wis.2d 563

¶ 5. On September 28, 2001, Clark was charged with possession of a controlled substance with intent to deliver. On November 12, 2001, Clark filed a suppression motion challenging the search of the vehicle. When asked at the suppression hearing why he decided to tow the vehicle, Detective McKee testified

I had an unsecured vehicle there, and no idea who was — the owner/operator was, or how to get ahold [sic] of them other than the listing. But Mr. Sadler said that [it] was Tim's car. In my experience, vehicles are so frequently changing hands without the registration being changed over that the most prudent decision would be to tow it for safekeeping.

¶ 6. While testifying, the detective was referred to the Milwaukee Police Department's "safekeeping tow" policy, which states in relevant part:

TOWING VEHICLES

. . . .

3/610.20 VEHICLE TOW CATEGORIES AND TOWING PROCEEDURES

. . . .

B. SAFEKEEPING TOW

This tow category is to be used only when:

1. A vehicle is to be towed and the owner/driver is unable to authorize a tow.

2. Ownership is in question.

3. The vehicle appears as "possibly stolen[,"] e.g., column damage, but not yet reported.

265 Wis.2d 564

After reviewing the policy, Detective McKee concluded that Clark's vehicle was towed pursuant to subsection one of the policy.

¶ 7. When asked at the suppression hearing why he did not simply lock the vehicle and leave it legally parked on the street, Detective McKee responded: "Because our Department policy doesn't provide for that. We were only permitted to lock the vehicle and leave it legally parked when we had the permission and consent of the owner." However, on cross-examination, Detective McKee conceded that there was no written Milwaukee Police Department policy supporting his conclusion that he could not simply lock the vehicle and walk away:

[DEFENSE COUNSEL]: Detective, you mentioned that it's against policy to leave a vehicle locked and legally parked without the permission of the owner; is that true?

[DETECTIVE MCKEE]: Well, it would be against policy to lock it and then leave it legally parked.

[DEFENSE COUNSEL]: Can you cite us to the policy that states that?

[DETECTIVE MCKEE]: That's been my training, any time there's an unsecured vehicle that we are unable to locate the owner or operator of, then our policy is we're to tow it.

[DEFENSE COUNSEL]: So you are telling me that this is something that you received in training, but you can't cite [ ] a written policy that cites that?

[DETECTIVE MCKEE]: Not off the top of my head, no. I don't believe — I don't believe one exists.

265 Wis.2d 565

[DEFENSE COUNSEL]: All right. So let me ask this, are you [stating] that any patrol officer with the City of Milwaukee who observes a car legally parked, but unlocked, is required to have that vehicle towed?

[DETECTIVE MCKEE]: No.

¶ 8. Before ordering the vehicle towed, Detective McKee never attempted to contact the registered owners of the Taurus. At the suppression hearing, the detective stated that he did not attempt to call them because he was "not equipped with a cell phone out there on the street" and "was not able to make such a call." Detective McKee, however, admitted that he did not even attempt to radio the police department to ask someone there to contact the registered owners of the vehicle.

¶ 9. On December 6, 2001, the circuit court denied Clark's suppression motion. On February 4, 2002, Clark entered a guilty plea, and on April 3, 2002, he was sentenced to ten years of initial confinement followed by seven years of extended supervision.

II. ANALYSIS.

[1, 2]

¶ 10. "On review of a trial court's denial of a motion to suppress, we will uphold the trial court's findings of fact unless they are clearly erroneous." State v. Garrett, 2001 WI App 240, ¶ 7, 248 Wis. 2d 61, 635 N.W.2d 615 (citing WIS. STAT. § 805.17(2) (1999-2000) and State v. Williamson, 113 Wis. 2d 389, 401, 335 N.W.2d 814 (1983)). "Whether a search is valid, however, is a question of constitutional law which we review de novo." Id. (citing State v. Guzman, 166 Wis. 2d 577, 586, 480 N.W.2d 446 (1992)).

265 Wis.2d 566

[3-5]

¶ 11. Here, the State contends that the search of the vehicle was a valid inventory search. "Although an inventory search is a `search' within the meaning of the [F]ourth [A]mendment, it is also a well-defined exception to the warrant requirement." State v. Weber, 163 Wis. 2d 116, 132, 471 N.W.2d 187 (1991) (citations omitted). An analysis of an inventory search involves a two-step process: (1) analysis of the reasonableness of the seizure of the car in the first instance; and (2) analysis of the reasonableness of the inventory search. See id. at 133. Clark challenges the first step and argues that the police had no right to tow the vehicle.

¶ 12. The State makes much of the written "safekeeping tow" policy, as well as the...