State v. Hart

• Decision Date: 21 November 2001
• Docket Number: No. 00-1444-CR.,00-1444-CR.
• Citation: 249 Wis.2d 329,639 N.W.2d 213,2001 WI App 283
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Robert F. HART, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

249 Wis.2d 329

2001 WI App 283

639 N.W.2d 213

STATE of Wisconsin, Plaintiff-Respondent,¹ v. Robert F. HART, Defendant-Appellant.

No. 00-1444-CR.

Court of Appeals of Wisconsin.

Submitted on briefs November 8, 2001.

Decided November 21, 2001.

On behalf of the defendant-appellant, the cause was submitted on the brief of Jon Deitrich of Hynes & Associates, S.C. of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Mark A. Langholz, assistant district attorney.

Before Brown, P.J., Anderson and Snyder, JJ.

¶ 1. BROWN, P.J.

What we face in this case is an inebriated citizen whom an officer decided he would not arrest but could not safely release on the streets either. A protective frisk for weapons produced not a weapon but a marijuana pipe. The State contends the existence of probable cause for operating a vehicle while intoxicated (OWI) by itself is enough to justify the search, and the subsequent arrest was a mere formality. We agree there are circumstances when, based upon probable cause, an arrest is inevitable and therefore it is a mere formality whether arrest comes before or after the search. In this case, however, no arrest was going to occur at the time of the search. Therefore, we hold that the search was not a valid search incident to arrest. Because the pat-down was unconstitutional, the denial of the motion to suppress is reversed as far as the conviction for possession of drug paraphernalia is concerned. This court affirms a related conviction for operating while intoxicated, second offense, because that charge is not sufficiently connected to the illegal pat-down.²

¶ 2. The facts in this case are not disputed. Robert F. Hart was stopped for speeding and suspicion of driving while intoxicated. Tests conducted at the scene, including a breath test, indicated that Hart was in fact intoxicated. Nevertheless, the officer exercised his discretion not to arrest Hart for OWI but to instead drive Hart to the police station where he could call for a ride home. Prior to placing Hart in the squad car, the officer initiated a pat-down pursuant to police department policy. Hart then reached into a pocket and threw an object into the grass. The officer retrieved a marijuana pipe, which Hart admitted belonged to him. At that point, the officer arrested Hart for possession of drug paraphernalia, handcuffed him and placed him in the squad car. The officer testified that he also arrested Hart for OWI either right before they left the scene or right after. At a hearing on Hart's motion to suppress the drug paraphernalia evidence, the trial court found that Hart was under arrest at the time of the search and that the pat-down was a lawful search incident to arrest.³ After the motion was denied, Hart pled guilty.

¶ 3. On appeal, Hart argues that the search cannot be justified as a search incident to arrest because there is no nexus between the fruits of the search and the probable cause used to justify the arrest. In other words, there was no basis for a search for evidence of the only crime then apparent, operating a vehicle while intoxicated. In a supplemental brief, the attorney general contends that so long as probable cause existed prior to the search and a formal arrest immediately followed, it is irrelevant that the search preceded the arrest. Alternatively, the district attorney argues that the drug paraphernalia is admissible either as the result of a limited Terry⁴ search or on the theory that Hart abandoned the pipe voluntarily.

[1, 2]

¶ 4. When reviewing an order granting or denying a motion to suppress evidence, we will uphold a trial court's findings of fact unless they are clearly erroneous. State v. Secrist, 224 Wis. 2d 201, 207, 589 N.W.2d 387 (1999),cert. denied, 526 U.S. 1140 (1999). However, deciding whether a search is unreasonable under the Fourth Amendment to the United States Constitution and article I, section 11 of the Wisconsin Constitution is a question of law we review de novo. State v. Betterley, 191 Wis. 2d 407, 415-16, 529 N.W.2d 216 (1995).

¶ 5. Both sides use the case of State v. Swanson, 164 Wis. 2d 437, 475 N.W.2d 148 (1991), to support their positions. There, Swanson was stopped for erratic driving and suspicion of driving while intoxicated. Id. at 442. Before placing Swanson in the squad car to take field sobriety tests, the officer performed a pat-down search and discovered marijuana on him. Id. Swanson was then arrested, handcuffed and placed in the back of the squad car. Id. at 442-43. The supreme court concluded that upon stopping Swanson for erratic and dangerous driving, the officer had detained him for only investigatory purposes as part of a routine traffic stop. Id. at 447-48. The court concluded that a reasonable person in Swanson's position, where he was merely asked to perform field sobriety tests, was not told he was under arrest, was not given Miranda⁵ warnings and was not handcuffed, would not have believed that he or she was under arrest or in legal custody prior to the search. Swanson, 164 Wis. 2d at 448.

[3, 4]

¶ 6. Swanson reiterated the test used to determine whether a person is under arrest. The test is "whether a reasonable person in the defendant's position would have considered himself or herself to be `in custody,' given the degree of restraint under the circumstances." Id. at 446-47. If a person is not under arrest, it follows that a resultant pat-down may not be justified as a search incident to arrest. [5]

¶ 7. Using the Swanson analysis, this court determines that the trial court was in error when it justified the pat-down based upon its conclusion that a reasonable person in Hart's position would have considered himself or herself under arrest because Hart was "not free to go." As Hart points out, the officer undisputedly told Hart that he was not under arrest and that he would be free to go home after he arranged for a ride. As this court views the undisputed evidence, both the officer and Hart understood that the officer had decided not to arrest him. Instead, the officer was acting as a "caretaker" to Hart by providing him with a safe means to arrive home. We conclude that any reasonable person in Hart's position would not have thought himself or herself to be under arrest.

¶ 8. The attorney general points out that what defeated the State in Swanson, the failure to arrest Swanson on charges for which they had probable cause, is present in this case and therefore the search is constitutional even though it preceded formal arrest. Furthermore, the attorney general argues, the officer's subjective reasons or motivation for the search are not binding on the court. See State v. Mata, 230 Wis. 2d 567, 574, 602 N.W.2d 158 (Ct. App. 1999). So long as probable cause existed, it should make no difference to the validity of the search if the officer did not intend to arrest Hart at the time of the pat-down. As we discuss below, we reject this reasoning because it fails to take into account the traditional concerns underlying the search incident to arrest cases.

[6, 7]

¶ 9. An examination of the search incident to arrest cases reveals that the underpinning to these holdings is the circumstances that exist at the time of arrest. See United States v. Robinson, 414 U.S. 218, 234-35 (1973); Chimel v. California, 395 U.S. 752, 762-63 (1969). Warrantless searches incident to custodial arrest are traditionally justified by the reasonableness of searching for weapons, instruments of escape, and evidence of crime when a person is taken into custody. United States v. Edwards, 415 U.S. 800, 802-03 (1974). Such exigent circumstances may exist even where the offense is relatively insignificant because "the defendant may use deadly force to escape [as] he fears the officer knows or may later discover that he is wanted for a much more serious crime." 3 WAYNE R. LAFAVE, SEARCH AND SEIZURE § 7.1(b), at 443 n.60 (3d ed. 1996). Furthermore, the search may precede the arrest so long as the fruits of the search were not necessary to support probable cause to arrest. Swanson, 164 Wis. 2d at 450-51.

[8, 9]

¶ 10. Exigent circumstances arise, therefore, because of the reasonable belief under which a police officer operates at the time of arrest. As the Supreme Court noted in Cupp v. Murphy, 412 U.S. 291 (1973):

Chimel stands in a long line of cases recognizing an exception to the warrant requirement when a search is incident to a valid arrest. The basis for this exception is that when an arrest is made, it is reasonable for a police officer to expect the arrestee to use any weapons he may have and to attempt to destroy any incriminating evidence then in his possession. . . .

Where there is no formal arrest, as in the case before us, a person might well be less hostile to the police and less likely to take conspicuous, immediate steps to destroy incriminating evidence on his person. Since he knows he is going to be released, he might be likely instead to be concerned with diverting attention away from himself.

Id. at 295-96 (citation omitted). This language assumes that when a reasonable police officer and defendant believe that arrest is inevitable, they will act as such. The subjective intent of the police officer as a reasonable person would understand it is the driving force in these situations. When the officer acts upon his or her belief that an arrest is going to be made, and communicates that belief by words or action to the defendant, then the exigent circumstances come into play.⁶ The defendant will be more likely to conceal evidence or escape or use violence when the defendant feels arrest is imminent. In such situations, the arrest itself is truly a mere formality; it was going to happen anyway and the prearrest search is justified by the concerns expressed in Cupp.

¶ 11. What happens, however, when the police officer does not intend to make an arrest? Here, it is clear there was no intent on the part of the...