State v. Littlejohn, 2007AP900-CR.

• Decision Date: 10 January 2008
• Docket Number: No. 2007AP900-CR.,2007AP900-CR.
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Michael A. LITTLEJOHN, Defendant-Respondent.<SMALL><SUP>&#x2020;</SUP></SMALL>
• Court: Wisconsin Court of Appeals

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 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 The officer who approached Littlejohn determined that Littlejohn's driver's license was revoked.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 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 prohibit all automobile searches as an incident to arrest, unless the defendant was allowed to remain in the automobile during the search, which increases the risk of danger to the officer. We cannot subscribe to such a limitation on the search incident to arrest rule.

The only other alternative to the Belton rule would be to permit searches on a case-by-case basis when the police believe that a suspect may escape from their control and regain access to an automobile. This alternative is unworkable, however, because such momentary escapes are not predictable.

Fry, 131 Wis.2d at 174-75, 388 N.W.2d 565 (emphasis added). Of particular importance here, the Fry court rejected Fry's argument that the search of his vehicle was not "contemporaneous" to his arrest. The Fry court said:

Belton ... treated a search in similar factual circumstances to be a contemporaneous incident of that arrest. We agree with this conclusion because a search is contemporaneous with an arrest as long as the search begins immediately after the arrest and the defendant remains at the scene .... Given a valid arrest, ... nothing more need be shown to justify a search of an automobile incident to arrest.

Id. at 180, 388 N.W.2d 565 (emphasis added).

¶ 11 Fry and subsequent case law interpreting Fry make clear what was implicit in Belton: the government is not required to show in each case that the area searched was actually accessible to the arrestee at the time of the search. See Fry, 131 Wis.2d at 174-75, 388 N.W.2d 565; see also Pallone, 236 Wis.2d 162, ¶ 35, 613 N.W.2d 568 ("The search [in Fry] was lawful even though both defendants in Fry were handcuffed, confined in separate squad cars, and guarded by officers at the time of the search. The Fry decision thus did not gauge whether the defendant actually had access to the interior of the vehicle." (citation omitted)); State v. Murdock, 155 Wis.2d 217, 233-34, 455 N.W.2d 618 (1990) ("The Fry court refused to consider the defendant's actual accessibility to the interior of the car, including the locked glove compartment, based on the Belton Court's instruction that officers could assume that the interior of the auto remained within the arrestee's reach.").

B. Littlejohn's Case

¶ 12 The facts here have much in common with Fry. In particular, as in Fry, the search here took place immediately following an arrest that occurred outside the vehicle and after the defendant was handcuffed and secured in a police vehicle at the scene. In the remaining paragraphs, we address the circuit court's rationale and Littlejohn's arguments.

¶ 13 In granting Littlejohn's suppression motion, the circuit court appeared to distinguish Fry on an incorrect basis. The circuit court stated as follows:

Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, coined the phrase "within the immediate control" of the arrestee. In New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860,...