State v. Denk
| Decision Date | 30 December 2008 |
| Docket Number | No. 2006AP1744-CR.,2006AP1744-CR. |
| Citation | 2008 WI 130,758 N.W.2d 775 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Jordan A. DENK, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
For the defendant-appellant there were briefs filed and oral argument by Lora B. Cerone, assistant state public defender.
For the plaintiff-respondent the cause was argued by Michael J. Losse, assistant attorney general, with whom on the brief was J.B. Van Hollen.
ON CERTIFICATION FROM THE COURT OF APPEALS
This case is before the court on certification from the court of appeals pursuant to Wis. Stat. § (Rule) 809.61 (2005-06).1 The court of appeals certified the following question: whether the police may search the personal belongings of a passenger that are found outside a motor vehicle incident to the arrest of the driver based on the reasoning in State v. Pallone, 2000 WI 77, 236 Wis.2d 162, 613 N.W.2d 568.
¶ 2 The defendant, Jordan A. Denk, asserts that the circuit court erred in denying his motion to suppress evidence uncovered during a warrantless search. He maintains that the State failed to establish that the search fit into the search incident to arrest exception or any other established exception to the warrant requirement. In addition, Denk argues that in the interest of justice he should be allowed to withdraw his plea. He advances that because his plea was unknowing and involuntary, the circuit court erred by denying his postconviction motion to withdraw his no contest plea for possession of methamphetamine.
¶ 3 We determine that the warrantless search here was incident to the arrest and was supported by both of the historical rationales at the heart of that exception, namely the safety of the arresting officer and the need to discover and preserve evidence. Thus, we conclude that based on the reasoning in State v. Pallone, under the circumstances of this case, the search of the eyeglass case was a permissible search incident to the arrest of the driver of the vehicle.
¶ 4 In addition, we determine that because Denk got the benefit of his plea bargain, he has failed to show by clear and convincing evidence that a manifest injustice would occur if he was not allowed to withdraw his plea. Accordingly, we affirm the orders of the circuit court.
¶ 5 This case centers around the arrest of Jordan A. Denk for possession of narcotics and paraphernalia. After the circuit court denied Denk's motion to suppress evidence seized in the search, Denk pleaded no contest to felony possession of methamphetamine.
¶ 6 On November 14, 2004, Denk was a passenger in a car driven by Christopher Pickering. At approximately 11:01 p.m., the car was parked on the shoulder of a county road with the two occupants inside.
¶ 7 While alone on routine patrol, Officer Jeff Hahn of the Pepin police force noticed the parked vehicle. He approached the car to ask whether the occupants needed assistance. Pickering partially rolled down his window and stated that he had stopped to make a call on his cell phone. Officer Hahn returned to his squad car.
¶ 8 At that point, Officer Hahn noticed that the tag on the license plate was expired. He ran a check and realized that the plates were registered to a different vehicle. Officer Hahn approached the car for the second time.
¶ 9 After Pickering rolled the window down, Officer Hahn detected the strong odor of burning marijuana. When asked about the odor, Pickering stated that he did not smoke marijuana. Denk stated that he had not smoked marijuana since he was released from a treatment facility earlier in the year.
¶ 10 Officer Hahn asked Pickering if he could search the vehicle. Pickering consented, and Officer Hahn asked both men to step out of the vehicle. He directed Pickering to stand by the rear of the vehicle, and Denk stood directly next to the closed passenger-side door.
¶ 11 Officer Hahn noticed that the pockets of Pickering's hooded sweatshirt were "bulging and heavy with some objects." He later testified that he was concerned about weapons because he Pickering stated that he had a Swiss army knife in his front pocket. Officer Hahn asked Pickering if he could pat him down for safety, and Pickering became very quiet. He stated, "I do have a problem with that." He told Officer Hahn, "I don't like to be touched."
¶ 12 When Pickering was asked to empty out his own pockets, he partially complied, but Officer Hahn felt that Pickering was picking and choosing what to produce. As Officer Hahn was illuminating the pocket with his flashlight, he saw a glass pipe that he "believed to be drug paraphernalia in the pocket[.]" Officer Hahn again asked Pickering if he possessed any narcotics. He testified that Pickering Finally, Pickering admitted that he had some "weed."
¶ 13 Officer Hahn placed Pickering in handcuffs, told him that he was detained, and removed the remaining items from the sweatshirt pockets. He found a baggie containing three individually-wrapped quantities of marijuana, a glass pipe, a small metal cylinder containing marijuana, and a small scale.
¶ 14 Officer Hahn then walked to the passenger side of the car where Denk stood. In response to Officer Hahn's question, Denk said that he did not possess any narcotics. Officer Hahn noticed a hard black case lying on the ground just underneath the passenger door. Denk stated that it was his eyeglass case. Officer Hahn asked Denk to retrieve the case,2 and Denk put it on top of the car.
¶ 15 Upon opening the case, Officer Hahn found a glass methamphetamine pipe and some cleaning tools. He placed Denk in handcuffs and searched his person, finding a baggie containing marijuana and a baggie containing a white, powdery residue which Denk later identified as methamphetamine.3
¶ 16 Officer Hahn placed both Pickering and Denk in the back of his squad car and informed them that they were under arrest. He proceeded to conduct a more thorough search of Denk's coat and found a silver pipe and a glass pipe, which he believed were used for smoking narcotics.
¶ 17 Two days later, a criminal complaint was filed which charged Denk with four counts: (1) Class I felony possession of methamphetamine; (2) Class I felony possession of THC with intent to deliver; (3) misdemeanor possession of marijuana; and (4) misdemeanor possession of drug paraphernalia. Officer Hahn's police report from the incident was attached to the complaint.
¶ 18 Officer Hahn was the only witness at the preliminary hearing held on January 25, 2005. He testified to the facts that were contained in his police report. The circuit court found that "it's probable that one or more felonies have been committed and [Denk] probably committed it."
¶ 19 On January 27, the district attorney filed the information, which modified the felony charges. This time, Denk was charged with Class I felony possession of methamphetamine and an added charge, Class H felony possession of drug paraphernalia. The added charge stated that Denk "did knowingly possess with primary intent to use, Methamphetamine pipe to convert Methamphetamine, contrary to sec. 961.575(3) Wis. Stats."
¶ 20 Denk filed a motion to suppress the evidence seized during the search. At the motion hearing, Officer Hahn again was the only witness and he largely reiterated his testimony from the preliminary hearing. The court denied the motion and determined that: (1) Officer Hahn did not stop the vehicle because it was already stopped; (2) the car had the wrong license plate, giving Officer Hahn the authority to arrest the driver for violation of traffic laws; (3) Officer Hahn had the authority to search incident to arrest; (4) there was consent to search the vehicle; and (5) there was consent to search Denk's person.4
¶ 21 Denk accepted the district attorney's offer of a plea agreement. The offer required Denk to plead guilty or no contest to felony possession of methamphetamine. In exchange, the State dismissed the felony methamphetamine paraphernalia charge and the misdemeanor charges for possession of marijuana and marijuana-related paraphernalia. The State recommended that he serve six months in the county jail as a condition of probation.
¶ 22 After determining, among other things, that Denk's plea was knowing and voluntary and that Denk was satisfied by his attorney's services, the court accepted Denk's no contest plea. The court later withheld sentence and placed Denk on probation with five months in county jail as a condition of probation.
¶ 23 On April 27, 2005, Denk filed a postconviction motion to withdraw his plea. He stated that there was no factual basis for charging him with one felony count of possession of methamphetamine paraphernalia under Wis. Stat. § 961.573(3). He argued that he could not have been convicted of the charge, and thus, the district attorney's offer to drop the charge provided an illusory benefit. As a result, he contended, the bargain was incapable of fulfillment and his plea was unknowing and involuntary.
¶ 24 At the motion hearing, Denk's appellate counsel advanced that his methamphetamine pipe was intended for personal use. She argued that Wis. Stat. § 961.573(3) applied to paraphernalia related to the manufacture of methamphetamine, and that the legislature did not intend for possession of a pipe for personal use to be a felony. She asserted that Denk's pipe did not "convert" methamphetamine, as he was charged under the statute, and that the court should decide that there was no factual basis for the charge as a matter of law.
¶ 25 Denk's attorney did not present any testimony or ask for an evidentiary hearing regarding the use of the pipe in question....
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