State v. Littlejohn, No. 2007AP900-CR.

CourtCourt of Appeals of Wisconsin
Writing for the CourtLundsten
Citation747 N.W.2d 712,2008 WI App 45
Decision Date10 January 2008
Docket NumberNo. 2007AP900-CR.
PartiesSTATE of Wisconsin, Plaintiff-Appellant, v. Michael A. LITTLEJOHN, Defendant-Respondent.<SMALL><SUP>†</SUP></SMALL>
747 N.W.2d 712
2008 WI App 45
STATE of Wisconsin, Plaintiff-Appellant,
v.
Michael A. LITTLEJOHN, Defendant-Respondent.
No. 2007AP900-CR.
Court of Appeals of Wisconsin.
Submitted on Briefs November 2, 2007.
Opinion Filed January 10, 2008.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Stephen W. Kleinmaier, Assistant Attorney General, and J.B. Van Hollen, Attorney General.

On behalf of the defendant-respondent, the cause was submitted on the brief of William E. Schmaal, Assistant State Public Defender of Madison.

Before VERGERONT, LUNDSTEN and BRIDGE, JJ.

¶ 1 LUNDSTEN, J.


This is a warrantless-vehicle-search-incident-to-arrest case. The State appeals a

747 N.W.2d 713

circuit court order suppressing evidence obtained from a search of Michael Littlejohn's car. The search occurred after Littlejohn exited his car, locked it, and walked away from it. We conclude that the search was a valid search incident to arrest under New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), and State v. Fry, 131 Wis.2d 153, 388 N.W.2d 565 (1986). Accordingly, we reverse the circuit court's order and remand for further proceedings.

Background

¶ 2 Two police officers on patrol observed Littlejohn driving a car. Because they observed suspicious behavior, the officers followed Littlejohn's car until he parked in a small parking lot, where they pulled in behind him. Littlejohn exited the car and locked it. As Littlejohn was walking away from the car, the officers alerted Littlejohn to their presence. The officer who approached Littlejohn determined that Littlejohn's driver's license was revoked. Littlejohn was handcuffed and arrested.

¶ 3 After securing Littlejohn in the rear of the patrol car, police searched the passenger compartment of Littlejohn's car. Police discovered a small baggie containing what appeared to be marijuana. They also found a white powdery substance that appeared to be cocaine. The officers then searched the car's trunk and found four gallon-sized baggies containing what appeared to be additional marijuana, a plastic bag containing what appeared to be more cocaine, and a digital scale.

¶ 4 The State charged Littlejohn with several crimes, including possession of marijuana and cocaine, both with intent to deliver. Littlejohn moved to suppress the evidence found in his car. The circuit court granted the motion after concluding that the vehicle and trunk searches were illegal. For reasons not apparent from the court's written decision, the court declined to follow Fry and instead concluded that the search was unlawful because Littlejohn "[was] arrested when he [was] out of the vehicle." The State appeals. We reference additional facts as needed below.

Discussion

¶ 5 The only dispute on appeal is whether police conducted a lawful search of the passenger compartment of Littlejohn's car. Littlejohn does not argue that police improperly stopped or arrested him. Also, Littlejohn does not dispute the State's contention that, if we uphold the search of the passenger compartment, the evidence resulting from that search justifies the subsequent search of the vehicle's trunk. See Hoffman v. Economy Preferred Ins. Co., 2000 WI App 22, ¶ 9, 232 Wis.2d 53, 606 N.W.2d 590 (Ct.App.1999) ("An argument to which no response is made may be deemed conceded for purposes of appeal.").

¶ 6 The State argues that this case is controlled by Thornton v. United States, 541 U.S. 615, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004), a case in which a vehicle search was upheld as a proper search incident to arrest. Littlejohn responds that the vehicle-search-incident-to-arrest exception to the warrant requirement does not apply when, as here, the vehicle is not within the defendant's "immediate control." As explained below, the basic flaw in Littlejohn's argument is that he fails to acknowledge that the "immediate control" test, if it can be called a test, has evolved to a point where literal "immediate control" is not required. We conclude that the search must be upheld as a valid vehicle search incident to arrest. Rather than focus on Thornton, however, we place primary reliance on our supreme court's Fry decision.

¶ 7 When reviewing a motion to suppress, we affirm the circuit court's findings

747 N.W.2d 714

of fact unless they are clearly erroneous. State v. Pallone, 2000 WI 77, ¶ 27, 236 Wis.2d 162, 613 N.W.2d 568. We review de novo, however, the circuit court's application of constitutional principles to the facts. Id.

A. Controlling Principles Of Law

¶ 8 In Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), the United States Supreme Court concluded that the need to prevent an arrestee from obtaining a weapon or destroying or concealing evidence justified a search incident to arrest of the area within that person's "immediate control." Id. at 762-63, 89 S.Ct. 2034. Twelve years later, in Belton, the Court addressed vehicle searches incident to arrest. In essence, the Belton Court rejected a case-by-case approach — to determining whether concerns for officer safety or evidence destruction justified a vehicle search — in favor of a bright-line rule. Belton, 453 U.S. at 460, 101 S.Ct. 2860. The Court held that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." Id. (footnotes omitted). The Court added that the police "may also examine the contents of any containers found within the passenger compartment ... whether [the container] is open or closed." Id. at 460-61, 101 S.Ct. 2860.

¶ 9 In Fry, our supreme court applied the Belton bright-line rule to facts similar to those here. Fry was in a car stopped by police. Fry, 131 Wis.2d at 157-58, 388 N.W.2d 565. Fry exited the car after the stop and walked over to the squad car, where police arrested him as he was standing between his vehicle and the squad car. Id. at 158, 388 N.W.2d 565. Fry was handcuffed, placed in a squad car, and guarded while police searched his vehicle, including a locked glove compartment. Id. at 156, 158-59, 388 N.W.2d 565. The search revealed a weapon, and Fry sought to suppress that evidence.

¶ 10 Upholding the search, the Fry court summarized and interpreted Belton as follows:

The Belton rule is a simple and reasonable rule governing the search of an automobile after an arrest is made. A police officer may assume under Belton that the interior of an automobile is within the reach of a defendant when the defendant is still at the scene of an arrest, but the defendant is not physically in the vehicle. We cannot say as a matter of fact in all cases that a defendant never could regain access to the interior of an automobile after initially leaving the vehicle. Thus, we would seriously undermine police security if we adopted as a matter of constitutional fact the rule that the interior of an automobile never is within the reach of a suspect who is outside the vehicle at the arrest scene; such a rule would...

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4 practice notes
  • State Of Wis. v. Dearborn, No. 2007AP1894-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 15, 2010
    ...N.W.2d 102 ¶ 11 The court of appeals rejected Dearborn's claim, relying heavily on State v. Littlejohn, 2008 WI App 45, 307 Wis.2d 477, 747 N.W.2d 712 (pet. review granted). In that case, which this court also is deciding today, the court of appeals rejected a nearly identical argument that......
  • State v. Dearborn, No. 2007AP1894-CR.
    • United States
    • Court of Appeals of Wisconsin
    • July 24, 2008
    ...constitutional right to a unanimous jury verdict. ¶ 3 We also conclude, relying on State v. Littlejohn, 2008 WI App 45, 307 Wis.2d 477, 747 N.W.2d 712,3 that the search of the passenger compartment of Dearborn's vehicle did not violate his constitutional right to be free from unreasonable s......
  • Park Ave. Plaza v. City of Mequon, No. 2006AP2339.
    • United States
    • Court of Appeals of Wisconsin
    • February 20, 2008
    ...entities were comparable to the commercial properties included in the assessment. Conclusory assertions3 will not defeat the presumption 747 N.W.2d 712 of reasonableness that we must accord the City's special ¶ 31 The second part of the test for reasonableness is the rule of uniqueness. Ass......
  • State Of Wis. v. Littlejohn, No. 2007AP900-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 15, 2010
    ...the events in Dearborn. More details can be found in the court of appeals opinion, State v. Littlejohn, 2008 WI App 45, 307 Wis.2d 477, 747 N.W.2d 712, but the relevant facts are as follows. ¶ 3 Littlejohn was arrested for driving with a revoked license. After officers placed him under arre......
4 cases
  • State Of Wis. v. Dearborn, No. 2007AP1894-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 15, 2010
    ...N.W.2d 102 ¶ 11 The court of appeals rejected Dearborn's claim, relying heavily on State v. Littlejohn, 2008 WI App 45, 307 Wis.2d 477, 747 N.W.2d 712 (pet. review granted). In that case, which this court also is deciding today, the court of appeals rejected a nearly identical argument that......
  • State v. Dearborn, No. 2007AP1894-CR.
    • United States
    • Court of Appeals of Wisconsin
    • July 24, 2008
    ...constitutional right to a unanimous jury verdict. ¶ 3 We also conclude, relying on State v. Littlejohn, 2008 WI App 45, 307 Wis.2d 477, 747 N.W.2d 712,3 that the search of the passenger compartment of Dearborn's vehicle did not violate his constitutional right to be free from unreasonable s......
  • Park Ave. Plaza v. City of Mequon, No. 2006AP2339.
    • United States
    • Court of Appeals of Wisconsin
    • February 20, 2008
    ...entities were comparable to the commercial properties included in the assessment. Conclusory assertions3 will not defeat the presumption 747 N.W.2d 712 of reasonableness that we must accord the City's special ¶ 31 The second part of the test for reasonableness is the rule of uniqueness. Ass......
  • State Of Wis. v. Littlejohn, No. 2007AP900-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 15, 2010
    ...the events in Dearborn. More details can be found in the court of appeals opinion, State v. Littlejohn, 2008 WI App 45, 307 Wis.2d 477, 747 N.W.2d 712, but the relevant facts are as follows. ¶ 3 Littlejohn was arrested for driving with a revoked license. After officers placed him under arre......

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