State v. Fry

Decision Date20 June 1986
Docket NumberNo. 85-0625-CR,85-0625-CR
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Leroy FRY, Defendant-Appellant.
CourtWisconsin Supreme Court

Ellen Pearlman, Asst. State Public Defender, for defendant-appellant.

David J. Becker, Asst. Atty. Gen., argued, for plaintiff-respondent; and Bronson C. La Follette, Atty. Gen., on brief; David C. Resheske, Dist. Atty., on brief.


The primary issue presented on this appeal is whether the search of the locked glove compartment of the defendant's automobile after his arrest for trespass to land was justified as a search incident to an arrest. The defendant claims that the search did not qualify as a search incident to an arrest under either sec. 968.11, Stats., art. I, sec. 11 of the Wisconsin Constitution, or the fourth amendment to the United States Constitution. No challenge is made to the validity of the defendant's arrest. We conclude that the search was legal. We also conclude that the evidence was sufficient to support the defendant's conviction for carrying a concealed weapon.

Leroy R. Fry, the defendant, was charged in a criminal complaint dated April 28, 1983, with carrying a concealed weapon, contrary to sec. 941.23, Stats. The defendant moved to suppress statements and physical evidence on the basis of an illegal search. The motion was denied following a hearing before Judge James B. Schwalbach on November 16, 1983. The case proceeded to jury trial, and on July 9, 1984, Fry was found guilty. On August 27, 1984, Fry was sentenced to 45 days in the Washington County Jail, Huber provisions to apply. After a hearing on March 6, 1985, Judge Schwalbach entered a written order denying defendant's motion for a new trial and modification of sentence. A notice of appeal was filed on March 27, 1985. We accepted certification of this appeal from the court of appeals on November 5, 1985, pursuant to sec. 809.61.

The relevant facts in this case are largely undisputed. On February 24, 1983, while Detective Robert Schulteis was at work at the Washington County Sheriff's Department, he received a phone call from a neighbor. The neighbor informed him that there was a black car in his yard bearing license number UD 8301, and that she had seen the same car on Highway 41 with what appeared to be a camera pointed toward his home. She further informed Detective Schulteis that when she drove past his residence, the vehicle was parked in the driveway. As she attempted to pull in back of it, the black car took off at a high rate of speed.

Upon receiving this information, Detective Schulteis ran a license check on the car. Its owner, a resident of Franklin, Wisconsin, was the defendant, Leroy Fry. Schulteis next phoned the Franklin Police Department and was informed that Fry was noted to carry a weapon in the glove box of his vehicle, "and if our officers did come across him, that they should use caution." Schulteis relayed this information to the dispatcher, advising that the vehicle should be located.

Deputy Sheriff Richard Feldschneider received this dispatch and, upon observing the car in question, radioed for assistance. He then pursued the car with his squad car lights activated. Fry promptly stopped his car. Other officers arrived and Deputy Feldschneider approached the automobile and requested Fry's driver's license. Deputy Feldschneider returned to his squad car to run a check on the driver's license. After a few minutes, Fry walked over to the squad car and asked what was going on.

Fry told the deputy that he had been on the property of Detective Schulteis because Francis Bocek, his friend and passenger, had been involved in an automobile accident near there and they were trying to get some information. He explained that Bocek was anxious to return to his family in Milwaukee, as they had also been involved in the accident and Bocek was worried about them. In addition, he explained that Bocek himself was in pain. Fry sat in Feldschneider's squad and produced a copy of the accident report, Polaroid photographs of the accident intersection, and a list of places they had gone in the course of investigating the accident.

Deputy Francis Standish then asked Fry if he would drive in his own automobile to the station for further questioning. Fry responded that he would not go with the officers unless he was placed under arrest. Standish relayed this information to the dispatcher and was informed that if Fry would not come voluntarily, he should be arrested.

Fry was then arrested for trespass. The legality of the arrest is not contested. He was standing between his car and Feldschneider's squad at the time of the arrest. He was searched, handcuffed, placed in a squad and removed from the scene by Officer Feldschneider after the discovery by the officers of a weapon in the glove compartment of his car. The defendant claims he was not present at the arrest scene when the car was searched. That claim, however, is not consistent with the record. Officer Standish stated at the trial that Deputy Feldschneider and Officer Ryan participated in the search of the vehicle with him and that he searched the glove compartment. Deputy Feldschneider, the arresting officer, also testified at the suppression hearing that he was present after the search began. At the trial, Deputy Feldschneider testified to the same facts and that he transported the defendant to the Washington County Sheriff's Department. He also testified that the time between the initial stop, including the arrest and search, and the time that the officers left the scene was about thirty minutes. It is apparent he did not transport Fry to the sheriff's department and then return to the search scene.

The primary issue raised by the defendant concerns the proper scope of a search incident to arrest. The defendant initially claims that the search of his automobile was not contemporaneous with his arrest because the officers had already transported him away from the arrest scene. As discussed above, the record does not support the factual premise for this argument. Alternatively, the defendant claims that the search does not qualify as a search incident to arrest because he was not in the vehicle when the search occurred. The defendant argues that he did not have immediate access to the area searched, thereby invalidating the search as one incident to an arrest under either sec. 968.11, Stats., art. I, sec. 11 of the Wisconsin Constitution, or the fourth amendment to the United States Constitution.

This case requires the court to determine the interrelationship between the Wisconsin statute on searches incident to arrest, sec. 968.11, Stats., and the Wisconsin and federal constitutional provisions prohibiting unreasonable searches and seizures. The defendant claims that the search in this case violated the federal test for an automobile search incident to arrest, as stated in the Supreme Court's most recent decision on the issue in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). Assuming that this court rejects his argument under Belton, the defendant next urges the court to construe the search and seizure provision of the Wisconsin Constitution to provide greater protection for privacy interests than the United States Constitution. Such a construction allegedly would render the search in this case to be unconstitutional. Finally, assuming constitutionality under the Wisconsin Constitution, the defendant claims that sec. 968.11 codifies a more rigorous test for searches incident to arrest than the state and federal constitutions. We first address the defendant's statutory argument in order to avoid constitutional issues, if possible.

At the outset, we note that this case requires the court to construe the Supreme Court's Belton decision. The facts in Belton are particularly informative. Belton, the defendant, was one of four persons stopped in a car proceeding at an excessive rate of speed. The officer smelled marijuana in the car and had seen on the floor an envelope marked "Supergold" that he associated with marijuana. The Court stated the following:

"He [the policeman] therefore directed the men to get out of the car, and placed them under arrest for the unlawful possession of marihuana. He patted down each of the men and 'split them up into four separate areas of the Thruway at this time so they would not be in physical touching area of each other.' He then picked up the envelope marked 'Supergold' and found that it contained marihuana. After giving the arrestees the warnings required by Miranda v. Arizona, 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ], the state policeman searched each one of them. He then searched the passenger compartment of the car. On the back seat he found a black leather jacket belonging to Belton. He unzipped one of the pockets of the jacket and discovered cocaine." Belton, 453 U.S. at 455-56, 101 S.Ct. at 2862.


Section 968.11, Stats., provides as follows:

"968.11 Scope of search incident to lawful arrest. When a lawful arrest is made, a law enforcement officer may reasonably search the person arrested and an area within such person's immediate presence for the purpose of:

"(1) Protecting the officer from attack;

"(2) Preventing the person from escaping;

"(3) Discovering and seizing the fruits of the crime; or

"(4) Discovering and seizing any instruments, articles or things which may have been used in the commission of, or which may constitute evidence of, the offense."

Although the legislature enacted the statute in November, 1969, this court has never construed the statute. We have continued to decide the validity of searches solely in accordance with constitutional law. The defendant, however, contends that the statute codifies the law as it existed at the time of enactment, and that the degree of protection then codified...

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