State v. Marten-Hoye

• Citation: 746 N.W.2d 498,2008 WI App 19
• Decision Date: 24 January 2008
• Docket Number: No. 2006AP1104-CR.,2006AP1104-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent,<SMALL><SUP>&#x2020;</SUP></SMALL> v. Tanya L. MARTEN-HOYE, Defendant-Appellant.
• Court: Court of Appeals of Wisconsin

746 N.W.2d 498

2008 WI App 19

STATE of Wisconsin, Plaintiff-Respondent,^† v. Tanya L. MARTEN-HOYE, Defendant-Appellant.

No. 2006AP1104-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs February 6, 2007.

Opinion Filed January 24, 2008.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Lora B. Cerone, assistant state public defender of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of David J. Becker, assistant attorney general, and Peggy A. Lautenschlager, attorney general.

Before HIGGINBOTHAM, P.J., DYKMAN and VERGERONT, JJ.

¶ 1 DYKMAN, J

Tanya Marten-Hoye appeals from judgments of conviction for disorderly conduct contrary to WIS. STAT. § 947.01 (2005-06)¹ and possession of cocaine with intent to deliver, contrary to WIS. STAT. § 961.41(1m)(cm)2. Marten-Hoye contends that the circuit court erred in denying her motion to suppress evidence obtained during a search of her person because (1) the police conduct while detaining her did not rise to the level of an arrest supporting a search incident to an arrest; and (2) the police lacked probable cause to believe she engaged in disorderly conduct and therefore lacked sufficient grounds to arrest her.² We conclude that the police conduct in this case did not effect an arrest of Marten-Hoye justifying a search incident to an arrest. Rather, Marten-Hoye was searched incident to receiving a municipal ordinance violation citation. Because the record establishes that police had reasonable grounds to issue the citation, but a search incident to issuing a citation is constitutionally impermissible under Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998), we affirm in part and reverse in part and remand for proceedings consistent with this opinion.

Background

¶ 2 The following facts are undisputed. At 11:30 p.m. on October 9, 2004, Police Officer Gloria Ben-Ami and her partner were on patrol on State Street in Madison. Ben-Ami approached Tanya Marten-Hoye and checked to ensure that she was not violating Madison's curfew ordinance. After determining that Marten-Hoye was not subject to the curfew based on her age, Ben-Ami told Marten-Hoye that she was free to leave.

¶ 3 Marten-Hoye then walked away from Ben-Ami and crossed the street. As she did so, she yelled "Fuck this shit," "This is bullshit," and "You fucking asshole." She waved her hands around as she yelled the obscenities. About ten to fifteen people in the area stopped and watched Marten-Hoye's actions. Ben-Ami then re-approached Marten-Hoye, told her she was under arrest for disorderly conduct, placed her in handcuffs, and told her she would receive a city ordinance violation and then be released if she continued to be cooperative. As Ben-Ami's partner began filling out a city ordinance violation citation for Marten-Hoye, Ben-Ami searched Marten-Hoye and discovered contraband.³

¶ 4 Marten-Hoye moved to suppress the evidence discovered during the search, arguing that there was no probable cause to arrest her for disorderly conduct and that the police did not have the authority to perform a search incident to arrest because she was never arrested. The circuit court denied the motion, and Marten-Hoye appeals.

Standard of Review

¶ 5 When we review an order on a motion to suppress, we uphold the circuit court's factual findings unless clearly erroneous. State v. Drew, 2007 WI App 213, ¶ 11, ___ Wis.2d ___, 740 N.W.2d 404. However, the application of constitutional principles to those facts is a question of law. Id. Here, the facts are undisputed, and thus only questions of law are before us. See id.

Discussion

¶ 6 Marten-Hoye raises two issues that she claims each individually require reversal of her convictions:⁴ (1) she was not under arrest when Ben-Ami searched her, and thus the search was constitutionally impermissible; and (2) there was no probable cause to arrest her for disorderly conduct before she was searched, and thus the search was constitutionally impermissible. We address Marten-Hoye's arguments in turn.⁵

¶ 7 Marten-Hoye first argues that the search was unconstitutional because it was incident to the issuance of a citation rather than a custodial arrest, citing Knowles.⁶ Marten-Hoye contends that the circuit court erred in relying on State v. Swanson, 164 Wis.2d 437, 475 N.W.2d 148 (1991), abrogated on other grounds by State v. Sykes, 2005 WI 48, ¶ 27, 279 Wis.2d 742, 695 N.W.2d 277, to determine that Marten-Hoye was arrested because the real question was whether the search in this case was constitutionally impermissible under Knowles. Moreover, Marten-Hoye contends that even under Swanson, she was not arrested so as to justify the search. The State responds that Marten-Hoye was arrested under Wisconsin law, as established in Swanson, and that Knowles does not apply because here there was an arrest rather than merely an issue of a citation. We agree with Marten-Hoye that the search in this case was constitutionally impermissible and therefore reverse as to the possession conviction.

¶ 8 Warrantless searches are per se unreasonable unless the State establishes that one of the few specific exceptions to the warrant requirement justifies the search. State v. Pallone, 2000 WI 77, ¶ 29, 236 Wis.2d 162, 613 N.W.2d 568. One established exception is for a search "incident to a lawful arrest." Id., ¶ 30 (citation omitted). The fact that an individual has been placed under arrest gives rise to two heightened concerns that justify a warrantless search, ensuring officer safety and discovering and preserving evidence. Id., ¶ 32. For this exception to apply, there must be an arrest. Id., ¶ 32.

¶ 9 In Knowles, 525 U.S. at 116-19, 119 S.Ct. 484, the United States Supreme Court declined to extend the search incident to arrest exception to searches incident to a citation. There, a police officer stopped Knowles for speeding and issued him a citation, although Iowa law established the officer had the authority to arrest Knowles for the offense. Id. at 114, 119 S.Ct. 484. After issuing the citation, the officer conducted a full search of Knowles' car, discovered contraband, and arrested Knowles. Id.

¶ 10 Knowles moved to suppress the evidence obtained during the search. Id. He argued that the search of his car following the police officer's issuing a speeding citation was not justified under the search incident to arrest exception to the warrant requirement established in United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), because he was issued a citation rather than placed under arrest. Knowles, 525 U.S. at 114, 119 S.Ct. 484. The Iowa Supreme Court upheld the trial court's denial of Knowles' motion, under a bright line rule authorizing warrantless searches incident to citations where the police also had probable cause to arrest. Id. at 115-16, 119 S.Ct. 484.

¶ 11 The United States Supreme Court reversed. Id. at 116, 119 S.Ct. 484. The Court explained that neither of the justifications for authorizing a search incident to arrest—"(1) the need to disarm the suspect in order to take him into custody, and (2) the need to preserve evidence for later use at trial"—sufficiently justified a search upon issuing a citation in lieu of arrest. Id. at 116-17, 119 S.Ct. 484. As to officer safety, the Court explained that "[t]he threat to officer safety from issuing a traffic citation ... is a good deal less than in the case of a custodial arrest." Id. at 117, 119 S.Ct. 484. The danger to the officer in the arrest context is because of "the extended exposure which follows the taking of a suspect into custody and transporting him to the police station," and "flows from the fact of the arrest, and its attendant proximity, stress, and uncertainty, and not from the grounds for arrest." Id. (citations omitted). "A routine traffic stop, on the other hand, is a relatively brief encounter, and is more analogous to a so-called Terry [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)] stop than to a formal arrest." Knowles, 525 U.S. at 117, 119 S.Ct. 484 (citation omitted).

¶ 12 As to the need to preserve evidence, the Court noted that the speeding violation at issue did not give rise to a need to search for further evidence. Id. at 118, 119 S.Ct. 484. The Court noted that "[n]o further evidence of excessive speed was going to be found either on the person of the offender or in the passenger compartment of the car."⁷ Id. The Court therefore declined to extend the bright-line rule authorizing searches incident to arrests under Robinson to searches incident to citations, because "the concern for officer safety is not present to the same extent and the concern for destruction or loss of evidence is not present at all." Id. at 118-19, 119 S.Ct. 484.

¶ 13 Thus, the United States Supreme Court has interpreted the Fourth Amendment as allowing searches incident to arrests, see Robinson, 414 U.S. at 224-26, 94 S.Ct. 467, but not searches incident to issuing citations, see Knowles, 525 U.S. at 116-19, 119 S.Ct. 484. Marten-Hoye, therefore, categorizes the police conduct in this case as analogous to the conduct in Knowles and argues that Ben-Ami conducted an impermissible "search incident to citation." The State, however, distinguishes Knowles on the grounds that there, the police issued a citation rather than arresting Knowles. The State argues that here, Ben-Ami effected an arrest of Marten-Hoye rather than detaining her merely to issue a citation, because the police action amounted to an arrest and, unlike in Knowles, Marten-Hoye was not issued a citation before she was searched. Thus, the State contends, the search was incident to an arrest rather than to a citation and was therefore constitutionally permissible. We conclude that the police conduct in this case is not addressed squarely under any controlling precedent, as the parties contend, but that the necessary implication from Knowles is that the search...